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Cite as: [1999] EWHC QB 270, [2000] Crim LR 379

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Neutral Citation Number: [1999] EWHC QB 270


Royal Courts of Justice
The Strand
Friday 5 November 1999

B e f o r e :



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Computer Aided Transcription by
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MR P COOKE (instructed by the Crown Prosecution Service Birmingham)
appeared on behalf of THE APPELLANT
MR A SHARPE (instructed by Messrs Khan & Co, Skegness PE25 2AG)
appeared on behalf of THE RESPONDENT



Crown Copyright

    Friday 5 November 1999

    LORD JUSTICE TUCKEY: This is an appeal by way of case stated from the decision of Mr Parsons, a Deputy Stipendiary Magistrate sitting in Birmingham made on 16 November 1998. On that day he heard an information preferred by the appellant prosecutor against the respondent, Mr Andrew Armstrong, that between 14 November 1997 and 30 November 1997 he had incited Gareth Robert Tobin (known as "John") to distribute indecent photographs of children contrary to common law. The magistrate upheld the submission of no case at the end of the prosecution's case, and was subsequently asked to state the case which we have before us.

    The case sets out the facts which the magistrate found proved. They are as follows. A police informer had been contacted on 9 November 1997 by someone asking to be supplied with pornography involving young girls "no younger than, say, 12 years old". The informer told the person who contacted him that he did not deal in such material, but gave him a mobile telephone number to contact and told him to speak to John. John was a pseudonym used by Detective Constable Tobin (the person named in the charge), who was an officer with the Paedophile and Pornography Unit at the Bradford Street Police Station in Birmingham.

    On 19 November 1997 the officer received a telephone call on his mobile from someone who asked to speak to John. The person calling asked for pornography involving girls "not younger than, say, 12 years" and arrangements were made between the two men for such a transaction to take place. The respondent was arrested on 4 February 1998 and we are told that in interview he admitted that he had made the call but suggested that he was merely making an inquiry and that the request was not for anything indecent.

    In the course of cross-examination the officer was asked whether he had any intention of supplying the material which he had been asked for and, quite naturally, said no, he did not. However, he said that he had access to such material from the police stores since the unit with which he worked came into possession of such material and dealt with it all the time.

    At the end of the prosecution case Mr Sharpe, who appears for the respondent then as he does today before us, submitted that there was no case to answer. His contention was that in the light of the officer's answer the prosecution had failed to make out a case since the intention of the officer was relevant to the commission of the offence and, furthermore, the fact that he was not going to supply the material made it impossible for the offence to be committed. His submissions are recorded in terms by the magistrate to include the contention that "the person incited must act with a parity of mens rea to the inciter". The appellant prosecutor contended that there was no such rule of law and that it was possible for the officer to have committed the offence since he had access to the material which he had been invited to supply.

    The magistrate was referred to the cases of R v Shaw [1994] Crim LR 365 and R v Curr [1968] 2 QB 944, (1967) 51 Cr App R 113. In explaining how he reached his conclusion he said:

    "(a) The police officer had made it clear in is evidence that he had no intention of supplying the Respondent with child pornography.

    (b) Upon reading the cases of R v Shaw and R v Curr, that these decisions were binding upon me and require the persons to whom the incitement is made to have a parity of mens rea to the inciter.

    (c) There was no evidence that the person incited had the required mens rea in that he had no intention of actually supplying child pornography.

    (d) Because the evidence of the police office was that the indecent material would not have been supplied I was satisfied that the full offence could not have been committed and was therefore impossible."

    The questions he poses for the court, so far as they are relevant to the points which have been argued before us, are:

    "(i) Was I correct to decide that the Respondent had not incited DC Tobin to distribute indecent material because [he] never had any intention of doing so?

    (ii) Was I correct in holding in law that the evidence of the police officer meant the offence was impossible to perform?"

    Before considering the two authorities referred to by the magistrate, it is helpful to analyse the position from first principles, free from authority. Incitement, like attempt and conspiracy, is an "auxiliary" (as Lord Diplock would have it) or "inchoate" (as the authors of text books would have it) offence. It is one of the ways in which criminal responsibility attaches to conduct short of the commission of the full offence. The actus reus of the offence is the indictment by the defendant of another to do something which is a criminal offence. He must do so with the intention that if the other person does as he asks he will commit a criminal offence. That is the mens rea. On this analysis the intention of the person incited is entirely irrelevant. It is put in Archbold at paragraph 33-70 as follows:

    "To solicit another to commit a crime is indictable at common law, even though the solicitation or incitement is of no effect."

    Blackstone refers also to the fact that the offence may be committed where the person incited flatly refuses to commit the offence.

    The nature of the offence of incitement is accurately defined in the draft Criminal Code produced by the Law Commission in their paper No 177 at clause 47 which says:

    "A person is guilty of incitement to commit an offence or offences if --

    (a) he incites another to do or cause to be done an act or acts which, if done, will involve the commission of the offence or offences by the other; and

    (b) he intends or believes that the other, if he acts as incited, shall or will do so with the fault required for the offence or offences."

    On this analysis of the law there is no principle of parity of mens rea of the kind contended for by the respondent and accepted by the magistrate. Were that to be the law, then all the cases about agent provocateur would have been wrongly decided because in each such case (where often the agent provocateur is a policemen) if it were a defence to the defendant to say: "Well, the officer never intended to commit the offence which I asked him to commit", there would be no offence of incitement and many people would be in prison for committing such offences who should not be.

    I turn to the related topic of impossibility. Obviously if what the person incited is asked to do is not a criminal offence the offence of incitement cannot be committed. There are other situations in which impossibility will still be a defence to a charge of incitement since this offence, unlike conspiracy and attempt, is not the subject of any statutory modification; it exists, as it always has done, as an offence at common law.

    The situations in which such a defence arise are helpfully summarised in Smith and Hogan at pages 321 and 322. Having referred to DPP v Nock [1978] AC 979, which dealt with the position under the law of conspiracy before the law was amended, the learned authors say:

    "The result of these decisions is that impossibility is a general defence at common law. It seems that the only exception is that [the defendant] may be convicted where the impossibility results from the inadequacy of the means used, or to be used, to commit the offence. So, for example, [the defendant] will not be guilty of incitement where --

    (i) The subject matter of the offence does not exist. D incites E to steal from P's safe. P's safe is empty.

    (ii) The victim of the offence does not exist. D incites E to murder P. P is already dead.

    (iii) The subject-matter of the offence lacks some quality which is an element of the offence. D and E believe a certain diamond to have been stolen. D incites E to receive it. It has not been stolen.

    (iv) The victim of the offence lacks some quality which is an element of the offence. D and E believe P to be aged fifteen. In fact she is sixteen. D incites E to have sexual intercourse with her."

    With that analysis of the law free from authority, I turn to see whether the two cases referred to by the magistrate compel one to modify the position.

    In R v Shaw the defendant, S, was charged with incitement to obtain property by deception. He was an after-sales co-ordinator for a company and he incited his senior maintenance controller to accept and pay bogus invoices. His defence was that he set up the scheme not to make a profit for himself, but to disclose to his employers how easily the company's security arrangements could be circumvented. He did not tell his supervisor what his purpose was, but would eventually have done so. The short report of the case in the Criminal Law Review which we have does not set out the precise terms of the charge but it is clear that it alleged that S dishonestly incited K dishonestly to obtain cheques from the company by the means which I have described. The particulars of the offence also said that he had done so with the intention of permanently depriving the company of the cheques. After the jury had been sent out they returned with a note saying that they (or some of them) were not sure whether the prosecution had established that what S had done was with a view to profit for himself. In other words, they (or some of them) were disposed to accept the defence he was running. The Court of Appeal allowed the appeal because the judge, when faced with the note, had not given the jury an adequate direction about that part of the particulars of the offence which alleged that the appellant had done what he had with the intention of permanently depriving his employers by deception. He should have told them that if they thought it possible that S was merely concerned to demonstrate the insecurity of the system the verdict should be not guilty. In a case where the principal issue was dishonesty and the jury were doubtful about whether S had been dishonest one can well understand why the Court of Appeal was concerned with how the judge had dealt with the note. There is nothing in the report which shows why K's mens rea was relevant. But it says:

    "Held, allowing the appeal, the jury were concerned with the proof of mens rea both of S and of K, since both had to be considered."

    It is this sentence which enabled Mr Sharpe to make the submissions he did. It has led to much criticism which can be found in Archbold, Blackstone and in the Commentary which immediately follows in the Criminal Law Report. This Commentary says:

    "The decision seems to be misconceived. If I tell Bill Sikes, the burglar, about the poor state of security of my employer's premises and encourage him to enter and steal therein, I have surely incited him to commit burglary. I have tried to persuade him to do an act which, when done, will, as I know, be the offence of burglary. How can it possibly be said that I have not incited him to commit the offence? ....

    The court has confused the mens rea of incitement with the mens rea of the offence incited."

    There is then a reference to R v Sang (1979) 69 Cr App R 282 in which Lord Diplock indicated in terms that if a dishonest policeman, anxious to improve his detection record, tries very hard with the help of an agent provocateur to induce a young man with no criminal record to commit a serious crime, and ultimately the young man reluctantly succumbs to the inducement, both the policeman and the informer who had acted together in inciting to commit the crime should both be prosecuted and suitably punished.

    Shaw is a decision of the Court of Appeal and therefore binding on us. It can be explained on its facts in the way I have attempted to do but it can also perhaps be explained because the indictment specifically alleged that S had dishonestly incited K to dishonestly obtain. It is not in my judgment therefore general authority for the proposition that the person incited must act with the same parity of mens rea as the inciter.

    R v Curr (supra) is also binding on us. In that case the appellant was a trafficker in Family Allowance books. His practice was to approach a woman with a large family and lend her money on the security of her book. After signing some of the vouchers the woman would hand them over to appellant as security. The appellant had a team of woman agents whom he sent out to cash the vouchers. He kept the proceeds as repayment of the loans and interest and then returned each book to its owner. He was convicted of soliciting to commit a summary offence under the provisions of the Family Allowance Act 1945. The offence charged was that he had solicited a woman unknown to obtain on his behalf from Her Majesty's Postmaster General the sum of 2.18s as on account of an allowance, knowing that it was not properly receivable by her. "Knowing" was an essential ingredient of that offence under the 1945 Act. The court held that the appellant could be guilty of soliciting only if the woman agent knew that the action which she was asked to perform amounted to an offence. In giving the judgment of the court, Fenton Atkinson J said:

    "In our view, the argument for the prosecution here gives no effect to the word 'knowing' in the section, and in our view the appellant could be guilty on count 3 only if the woman solicited, the woman agent sent to collect the allowance, knew that the action she was asked to carry out amounted to an offence."

    It seems to me that all the court is saying in that case is that what the appellant was doing was something short of asking the woman concerned to commit a criminal offence. He was not inciting her to commit an offence because the offence required her knowledge that she was committing an offence. There is nothing in the judgment to suggest that the court was making any general pronouncement upon whether for the offence of incitement it is necessary to prove that not only the inciter but also the person incited had the mens rea to commit the full offence.

    It follows from what I have said that I do not see anything in either of these two cases which compels me to conclude that the law is not as I stated it to be in the earlier part of this judgment. And it also follows that I do not think the magistrate was correct when he found that the law requires that the person incited must have parity of mens rea with the inciter". Applied to the facts of this case, it was not necessary for the prosecutor to show that the officer intended to supply child pornography to the respondent. His intention was irrelevant. The offence of incitement was committed when he was asked to commit the offence of supplying child pornography with the intention on the part of the respondent that in doing so he would be committing a criminal offence.

    The only basis upon which the magistrate found impossibility was that the police officer would not supply the material. In considering whether there is a defence of impossibility the court must look carefully at what it is that the person incited has been asked to do. In this case the officer was asked to supply child pornography. The fact that he did not intend to do so is irrelevant. The request made to the police officer was in general terms for child pornography and one which he could have met from material in the police's possession, as the findings of the magistrate made clear. The officer could therefore have committed the offence which he had been asked to commit. It cannot therefore be said that it was impossible for him to do so. The facts of this case do not fall within any of the categories of impossibility to which I have referred. This is borne out by the decisions in R v Quail (1866) 4 F & F 1976 and R v Fitzmaurice (1983) 76 Cr App R 17 to which we were referred.

    For these reasons I think the magistrate reached the wrong conclusion in this case and I would answer "No" to each of the two questions which he has posed for this court. It must follow that I would quash his decision.

    MR JUSTICE MOSES: I agree.

    MR SHARPE: My Lord, the respondent is legally aided and I would ask for legal aid taxation.

    LORD JUSTICE TUCKEY: Yes. Thank you both very much.


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