• In the criminal case of R v Calhaem 1985 QB 808, the wording of and meaning of “counsel| was deliberated in relevance to the Accessories and Abettors Act 1861 s.8.
  • The takeaway from this case is that in terms of the 1861 Act, “counsel”, given its natural meaning, did not imply the commission of the offence, the offence was established if there was counselling and the principal offence was committed by the person counselled acting within the scope of his authority and not by accident.

Facts of the Case

  • The Appellant (A) was indicted for murder.
  • The case against her was that she had counselled Z. to murder the victim. Z pleaded guilty to murder firstly denying wanting to kill the victim but proceeding to anyway.
  • Crown had to prove that A counselled Z.
  • The directions to the jury were that “counsel” within s.8 of the 1861 Act meant to incite, solicit, instruct or authorize or to “put somebody up to something”.
  • A was convicted as killing was in the scope of the instruction or authorisation.
  • A appealed, the appeal was on the grounds that the judge had failed to put the jury by his direction a defence raised, namely that counselling required a substantial causal connection between he acts of the counsellor and the commission of the offence and that no such causal connection existed on the facts

Issues in of R v Calhaem 1985 QB 808

  • Did the fact that Z refused to murder the victim but later went ‘berserk’ and killed the victim anyway, have a causal link between the counselling of A.

Held by Court of Appeal (Criminal Division)

  • Appeal dismissed.

Parker L,J., Tudor Evans J, Sir John Thompson

  • the true construction of section 8 of the Accessories and Abettors Act 1861 (as amended) “counsel” had no implication of any causal connection between the counselling and the principal offence; that the natural meaning of the word did not imply the commission of the offence.
  • The offence under section 8 was established if there was counselling and the principal offence was committed by the person counselled acting within the scope of his authority and not by accident.
  • Therefore, the direction was accurate.

Parker L.J

“Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender.” Pg.110

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