| CRIME — Homicide — Soliciting to murder — Defendant accused of soliciting others to carry out murder as secondary parties — Whether amounting to statutory offence of soliciting to murder — Whether offence limited to soliciting principal party — Offences Against the Person Act 1861 (24 & 25 Vict c 100) (as amended by Criminal Law Act 1977 (c 45), s 1(10)), s 4
R v Winter
CA: Gage LJ, Underhill J and Sir Christopher Holland: 28 November 2007
Where a person solicited another to commit murder as a secondary, as opposed to principal, party, he was guilty of an offence of soliciting another to murder, contrary to s 4 of the Offences Against the Person Act 1861.
The Court of Appeal, Criminal Division so held when dismissing an appeal by Malcolm Winter against his convictions on 30 October 2007 by the Crown Court at Plymouth (Jack J and a jury) for, inter alia, two offences of soliciting to murder, contrary to s 4 of the 1861 Act.
The prosecution alleged that the defendant planned to murder his wife, and asked a friend, M, to assist him by gaining entry to where she lived. When M informed the police, he was asked to assist them in gathering evidence by pretending to go along with the defendant’s plan. The defendant told M that he planned to arrange for someone to drive his car around another area at the time of the murder in order to provide himself with an alibi, and accepted M’s offer to ask T, who was in fact an undercover police officer, to drive the car. He was charged with soliciting M and T to murder his wife. At trial he argued, inter alia, that he had formed no intention to kill, and that the offence under s 4 of the 1861 Act did not include soliciting a person to commit murder as a secondary, rather than principal, party.
S 4 of the 1861 Act, as amended, provides: “Whosoever shall solicit, encourage, persuade or endeavour to persuade, or shall propose to any person, to murder any other person...shall be guilty of a misdemeanour...”
GAGE LJ, delivering the judgment of the court, said that s 4 of the 1861 Act was sufficiently wide to include soliciting a person to act as a secondary party to murder. The offence of murder could be committed by a number of persons playing a part in it, and it mattered not whether one of them played no part in the actual killing. The fact that there was no authority for the proposition that s 4 included soliciting secondary parties, did not indicate that the defendant’s submissions were correct, but was merely because the offence was most commonly committed by soliciting another to carry out the killing. The jury was satisfied that the defendant formed the intent to kill at the time he induced M and T to enter the plan, and the judge was entitled to find that the offences charged did not amount to an abuse of process as state-created crime.
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