| CRIME — Aiding and abetting — Conspiracy — Appellants charged with conspiracy to aid and abet production of controlled drug — Whether agreement to aid and abet capable of constituting criminal conspiracy — Criminal Law Act 1977 (c 45), s 1
R v Kenning; R v Blackshaw; R v Fenwick; [2008] WLR (D) 212
CA: Lord Phillips of Worth Matravers CJ, Dobbs and Underhill JJ: 24 June 2008
An agreement to aid and abet an offence was not capable of constituting a criminal conspiracy.
The Court of Appeal, Criminal Division, so held in allowing appeals by David Kenning, Paul Blackshaw and Paul Fenwick against their conviction at the Crown Court at Derby before Judge David Price and a jury on 2 November 2007 for conspiracy to aid and abet production of a controlled class C drug and, in Blackshaw and Fenwick’s case, for conspiracy to counsel the production of a controlled class C drug, contrary to s 1 of the Criminal Law Act 1977.
LORD PHILLIPS OF WORTH MATRAVERS CJ, giving the judgment of the court, said that Kenning and Fenwick were partners in a business, the Hydroponic Centre, where Blackshaw occasionally worked. Items purchased from the business had been used by purchasers to grow cannabis. However, those items might equally have been used to grow plants that could lawfully be grown. There was thus no basis upon which the appellants could have been charged with aiding and abetting the production of cannabis on the simple basis that they had sold the items in question. The prosecution decided that the answer to their problem was to bring charges in the form that they did. The appellants submitted that a statutory conspiracy could not be committed unless the acts which the conspirators themselves agreed to do would, if carried out, result in the commission of a criminal offence. They contended that the offence of conspiring to aid and abet was unknown to law, relying on the Court of Appeal decision in R v Hollinshead [1985] AC 975. The prosecution contended that in the House of Lords in R v Hollinshead Lord Roskill expressly left open the question of whether the Court of Appeal had been correct to rule that an offence of conspiracy to aid, abet, counsel or procure contrary to s 1 of the 1977 Act was a legal impossibility and he relied upon a painstaking analysis of the common law origin of aiding, abetting, counselling and procuring to argue that that was an offence that was and always had been known to law. Whether the reasoning of the Court of Appeal in Hollinshead remained binding might be a matter for debate. However, their Lordships endorsed that court’s conclusion that an agreement to aid and abet an offence was not in law capable of constituting a criminal conspiracy under s 1 of the 1977 Act. It followed that the indictment had charged offences unknown to law and the convictions had to be quashed.
|
