1 Q.B.

Hoveringham Gravels v. Environment Sec. (C.A.)

773
Scannan LJ.

of the law and, as such, vitiates his decision. Had he directed himself
properly as to the effect of the underlying statute law, he must have appreciated that planning permission, which had been for years consistently
refused, was never likely to be granted. The planning authority had never
shown any disposition to grant permission: and were always prepared to
refuse, as in the instant case they did refuse, permission although no preservation order had been made. The evidence, when viewed without the
B distortions of an erroneous appreciation of the law, points only one way:
planning permission could not reasonably have been expected.
Mr. Glidewell's further submissionthat the loss of agricultural rights
carried with it the loss of the right to commercial exploitationis, in my
judgment, unsound not only for the reasons given by Orr L J . , but also
because it rests upon the false assumption that compensation is generally
available even when planning permission is not in existence and is not
to be expected.
I would, therefore, allow the appeal.

fixed

Appeal allowed with costs in Court

of Appeal and in tribunal from
date of sealed offer, amount being
at 100.
Leave to appeal refused.

Solicitors: Treasury Solicitor; Rollit, Farrell & Bladon, Hull.

M. M. H.
E

[COURT OF APPEAL]

ATTORNEY-GENERAL'S REFERENCE (No. 1 OF 1975)

F
1975 April 25

Lord Widgery C.J., Bristow and May J J.

CrimeAiding and abettingProcuringDefendant surreptitiously

lacing motorist's drinks with spiritsMotorist consequently
convicted of driving with blood-alcohol concentration above
prescribed limit Whether motorist's offence procured by
defendant"Procure"Accessories and Abettors Act 1861
G
(24 & 25 Vict. c. 94), s. 8
A defendant, knowing that a motorist would shortly drive
home, surreptitiously laced his drinks by adding spirits to them.
Consequently the motorist drove while the alcohol concentration in his blood was above the prescribed limit contrary to
section 6 (1) of the Road Traffic Act 1972 and was convicted
of the offence. The defendant was charged with aiding, abetting, counselling or procuring the commission of the motorist's
offence within section 8 of the Accessories and Abettors Act
1861.* He was acquitted on a ruling of no case to answer.

TJ
"
1

Accessories and Abettors Act 1861, s. 8: see post, p.

778F-G.

1 Q.B. 197530

L1975]
A.-G.'s Reference (No. 1 of 1975) (GA.)
On the Attorney-General's reference to the Court of Appeal
under section 36 of the Criminal Justice Act 1972 on the A
question whether the defendant was entitled to the ruling:
Held, that, since the lacing of the motorist's drinks was
surreptitiously done so that he was unaware of what had
happened and there was a causal link between the defendant's
act and the offence by the motorist who would not have committed it otherwise, the defendant had procured the commission
of the motorist's offence; and that, therefore, there was a case
to answer so that the defendant was not entitled to the ruling B
(post, pp. 779H780D).

The following case is referred to in the opinion of the court:

Reg. v. Bainbridge [1960] 1 Q.B. 129; [1959] 3 W.L.R. 656; [1959]
3 All E.R. 200, C C A .
/-*
The following additional cases were cited in argument:
Carter v. Richardson [1974] R.T.R. 314, D.C.
Crampton v. Fish [1970] Crim.L.R. 235, D.C.
Director of Public Prosecutions for Northern Ireland v. Lynch [1975]
2 W.L.R. 641; [1975] 1 All E.R. 913, H.L.(N.L).
Johnson v. Youden [1950] 1 K.B. 544; [1950] 1 All E.R. 300, D.C.
National Coal Board v. Gamble [1959] 1 Q.B. 11; [1958] 3 W.L.R.
434; [1958] 3 All E.R. 203, D.C.
Pope v. Minton [1954] Crim.L.R. 711, D.C.
Pugsley v. Hunter [1973] 1 W.L.R. 578; [1973] 2 All E.R. 10, D.C.
Reg. v. Robert Millar (Contractors) Ltd. [1970] 2 Q.B. 54; [1970] 2
W.L.R. 541; [1969] 3 All E.R. 247; [1970] 1 All E.R. 577, Fisher J.
andCA.
Reg. v. Tinsley [1963] Crim.L.R. 520, C C A .
Reg. v. F. W. Woolworth Co. Ltd. (1974) 46 D.L.R. (3d) 345.
Stanton (D.) & Sons Ltd. v. Webber [1973] R.T.R. 86, D.C.
Thambiah v. The Queen [1966] A.C 37; [1966] 2 W.L.R. 81; [1965]
3 All E.R. 661.P.C

by the Attorney-General.
The Attorney-General referred, under section 36 of the Criminal F
Justice Act 1972, a point of law for the opinion of the Court of Appeal
in the following terms:
" Whether an accused who surreptitiously laced a friend's drinks
with double measures of spirits when he knew that his friend would
shortly be driving his car home, and in consequence his friend drove
with an excess quantity of alcohol in his body and was convicted of Q
the offence under section 6 (1) of the Road Traffic Act 1972, is
entitled to a ruling of no case to answer on being later charged as
an aider and abettor counsellor and procurer, on the ground that
there was no shared intention between the two, that the accused did
not by accompanying him or otherwise positively encourage the friend
to drive, or on any other ground."
REFERENCE

The Attorney-General's contentions were that a person who was solely

responsible for the condition of the driver of a vehicle being in breach
of section 6 (1) of the Road Traffic Act 1972 and who brought about

775
1 Q.B.

A.-G.'s Reference (No. 1 of 1975) (C.A.)

that condition in the knowledge or anticipation that the condition would

exist while the vehicle was being driven on a road, was answerable in law
as a person who had aided, abetted or procured the commission of the
offence. It was irrelevant that the driver was unaware of what the accused
had done (save that being unaware he might not appreciate the risk in
driving) because, inter alia, his offence was an absolute one and required
no particular state of mind. Further it was contended that aiding, abetting
B or procurement in that context did not involve encouragement to commit
the offence but might co-exist with indifference or even discouragement,
provided there was a deliberate act done which was contributory to the
commission of the principal offence with foresight of that consequence or
with recklessness as to whether that consequence ensued or not.
p

JJ

Sir Joseph Molony Q.C. and Nigel Hamilton for the Attorney-General.
The problem posed in the point of law is of considerable practical
importance because it permits the driver convicted of an offence under
section 6 (1) of the Road Traffic Act 1972 to contend that the offence was
caused by the alcoholic ministrations of someone else and that he is
morally free of blame; and that it is a special reason within section 93 (1)
of the Act of 1972 for not ordering him to be disqualified. Moreover, it
opens up the possibility that a person may say out of friendship and with
impunity that he had laced the drink, but contrary to the truth.
The main grounds put forward for rejecting the prosecution's case
were as follows. First, that there was no common intent, community of
purpose or shared intention. That was based on the fact that the driver's
drinks were laced surreptitiously and the friend did not disclose what he
had done. The second ground was that there was insufficient encouragement to amount to aiding, abetting, counselling or procuring.
The second ground causes little difficulty because, on the authorities,
it appears that a consequence is intended if in fact a person contributes
by his actions to a criminal outcome, if in fact his actions set the scene
and play a relevant part in the crime. Although it may be that he does
not desire that outcome to ensue and may even discourage it, nevertheless his conduct combined with his foresight make him liable.
As to the first ground, it is not suggested that the way is clear. The
question is whether mutuality of purpose with the principal offender is
an essential element in the offence of being an accessory before the fact,
to use the old terminology. The argument is set out in the reference.
The offence under section 6 (1) of the Act of 1972 is absolute, and
unique because it is not committed until the driver is found out by the
precisely prescribed procedure. Logic supports the contention that, if the
principal offender does not need to have mens rea, a particular state of
mind, it is not necessary that he should share knowledge or intention with
the secondary offender to make the latter liable.
As to the appropriate statutory provisions, see section 8 of the Accessories and Abettors Act 1861, section 1 of the Criminal Law Act 1967 and
section 35 of the Magistrates' Courts Act 1952.
As to the general position, see Smith and Hogan, Criminal Law, 3rd
ed. (1973), pp. 92, 94, 97, 109-110. The authorities on the general law
are: Johnson v. Youden [1950] 1 K.B. 544; National Coal Board v.

776
A.-G.'s Reference (No. 1 of 1975) (C.A.)

[1975]

Gamble [1959] 1 Q.B. 11; Reg. v. Bainbridge [1960] 1 Q.B. 129; Thambiah v. The Queen [1966] A.C. 37 and Director of Public Prosecutions A
for Northern Ireland v. Lynch [1975] 2 W.L.R. 641.
The authorities presenting the present kind of problem in relation to
driving offences are: Pope v. Minton [1954] Crim.L.R. 711; Reg. v.
Tinsley [1963] Crim.L.R. 520; Crampton v. Fish [1970] Crim.L.R. 235;
Pugsley v. Hunter [1973] 1 W.L.R. 578; Carter v. Richardson [1974]
R.T.R. 314 and Stanton D. & Sons Ltd. v. Webber [1973] R.T.R. 86. B
[Reference was made to Reg. v. F. W. Woolworth Co. Ltd. (1974) 46
D.L.R. (3d) 345.]
The case of the person who laces drinks in the circumstances set out
in the reference is presented as a case of procuring the commission of
the offence under section 6 (1) of the Act of 1972. It is accepted that no
previous authority establishes the position of a person not present at a
crime and who cannot be said to " counsel" it because of the absence
of community of mind. The present case is an appropriate one in which
to establish the principle, being a case of absolute liability in the principal
offender, so that the necessity for his state of mind being at one with the
alleged accessory is much less apparent than in the normal case. Since
the principal offender commits his offence without mens rea, there is no
hardship or illogicality in saying that the person who contributes markedly D
to the commission by the principal offender of that offence should be at
risk under the law without mutuality of mind. Further, to the extent
that social and public considerations come in, it is obviously desirable
that persons should not confess openly to being responsible for the commission of a crime without incurring legal liability for so doing.
John Marriage Q.C. and Christopher Gardner for the Treasury Solicitor as amicus curiae. It is conceded, first, that if the lacing of drinks is "
an offence then the appropriate offence is procuring; and, secondly, that
there is no logical reason why procuring cannot stand on its own and
apart from aiding, abetting and counselling. Providing that the act fits
into one of the four words, aid, abet, counsel and procure, it would be
sufficient.
The next question is how the suggested procuring occurs. What act p
amounted to procuring? The prosecution's suggestion is that it is the
provision of alcohol. An offence under section 6 (1) of the Act of 1972
has two features, namely, excess alcohol in the blood and driving. Plainly
a person who knows that another has had too much to drink and tells
him to take and drive that person's car is a procurer of the offence if the
car is driven. If he is present when the car is started, he is an aider and
abettor.
G
The next question is whether the provision of alcohol which makes
the person concerned into a condition in which, if he does drive, he will
be guilty of an offence, as such amounts to a sufficient actus reus to constitute the offence of procuring.
The possible consequences should be considered. If the court is to
hold that the mere provision of alcohol amounts to provision of the tool, JJ
such as provision of a car would be, a very wide ambit of offences is
opened up: for example, by publicans and by generous hosts entertaining
guests. If the answer is that the customer or guest knows what he is

>

777
1 Q.B.
A.-G.'s Reference (No. 1 of 1975) (C.A.)
having and is in a position to exercise his own judgment, consideration is
necessary of the predicament of the publican faced with the situation of
a man who is heard to say that he will have a single but is bought a
double by an insistent friend. If the publican acquiesces, does he procure
a subsequent offence?
For a procurer to be capable of being convicted there must be a point
before the commission of the substantive or principal offence when the
minds of both procurer and principal offender contain knowledge of all
the facts necessary to constitute the offence. A joint knowledge held by
both persons is necessary for the existence of the relationship of procurer
and principal: see, for example, National Coal Board v. Gamble [1959]
1 Q.B. 11. The very use of the word " accessory " covers aiding, abetting,
counselling and procuring. An accessory, by the very nature of the word
is someone who, having one motive or another, gives his support to an
enterprise knowing basically what the enterprise is about. If joint knowledge is unnecessary it is strange that the doctrine of unilateral knowledge
has not been put into operation in any of the authorities. The lacer who
knows and the drunken driver who does not is much closer to the user
of an innocent agent to commit an offence (thereby becoming the
principal) than to an accessory.
As to the question of intention, wish or motive, see Glanville Williams,
Criminal Law, The General Part, 1953 ed., p. 190, "Supply of Materials
and Information." An intention, wish or motive is relevant in the
present case. It may, however, be that the lacer's very recklessness and
irresponsible stupidity suffice. Certainly it is unnecessary to show that
the lacer had a motive, e.g., dislike of the driver, to create procuring.
If it is to be said that the lacer can recant by informing the would-be
driver of what has been done to his drink, a social predicament is
created for the generous host, who would have to be careful to warn his
guests not to drive, or perhaps even forcibly remove ignition keys from
them. [Reference was made to Reg. v. Robert Millar (Contractors) Ltd.
[1970] 2 Q.B. 54].
If it is to be said' that, on the face of it, the offence seems to have
been procured, as a matter of principle it has to be shown that the surrounding facts are such that the alleged procurer must be taken to have
realised that his act would result in a criminal offence being committed.
Sir Joseph Molony Q.C. replied.

LORD WIDGERY C.J. gave the following opinion of the court. This
case comes before the court on a reference from the Attorney-General,
G under section 36 of the Criminal Justice Act 1972, and by his reference
he asks the following question:
"Whether an accused, who surreptitiously laced a friend's drinks
with double measures of spirits when he knew that his friend would
shortly be driving his car home, and in consequence his friend drove
with an excess quantity of alcohol in his body and was convicted of
JJ
the offence under section 6 (1) of the Road Traffic Act 1972, is
entitled to a ruling of no case to answer on being later charged as an
aider and abettor counsellor and procurer, on the ground that there
was no shared intention between the two, that the accused did not

778
A.-G.'s Reference (No. 1 of 1975) (C.A.)

[1975]

by accompanying him or otherwise positively encourage the friend

to drive, or on any other ground."

It is of course now well known that the purpose of section 36 of the

Act of 1972 is to enable the Attorney-General to obtain a ruling on a
point of law which is not capable of being investigated by the normal
appellate procedure because the case in which the point of law arose
resulted in an acquittal of the accused. It would be a mistake to think,
and we hope people will not think, that references by the Attorney- B
General are confined to cases where very heavy questions of law arise
and that they should not be used in other cases. On the contrary, we
hope to see this procedure used extensively for short but important
points which require a quick ruling of this court before a potentially false
decision of law has too wide a circulation in the courts.
The present question has no doubt arisen because in recent years there c
have been a number of instances where men charged with driving their
motor cars with an excess quantity of alcohol in the blood have sought
to excuse their conduct by saying that their drinks were " laced," as the
jargon has it; that is to say, some strong spirit was put into an otherwise
innocuous drink and as a result the driver consumed more alcohol than
he had either intended to consume or had the desire to consume. The
relevance of all that is not that it entitles the driver to an acquittal D
because such driving is an absolute offence, but that it can be relied on
as a special reason for not disqualifying the driver from driving. Hence
no doubt the importance which has been attached in recent months to
the possibility of this argument being raised in a normal charge of driving with excess alcohol.
The question requires us to say whether on the facts posed there is a E
case to answer and, needless to say, in the trial from which this reference
is derived the judge was of the opinion that there was no case to answer
and so ruled. We have to say in effect whether he is right.
The language in the section which determines whether a " secondary
party," as he is sometimes called, is guilty of a criminal offence committed by another embraces the four words " aid, abet, counsel or procure." The origin of those words is to be found in section 8 of the
Accessories and Abettors Act 1861, which provides:
"Whosoever shall aid, abet, counsel or procure the commission of
any misdemeanor, whether the same be a misdemeanor 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."
G
Thus, in the past, when the distinction was still drawn between felony
and misdemeanor, it was sufficient to make a person guilty of a misdemeanor if he aided, abetted, counselled or procured the offence of
another. When the difference between felonies and misdemeanors was
abolished in 1967, section 1 of the Criminal Law Act 1967 in effect provided that the same test should apply to make a secondary party guilty r.
either of treason or felony.
Of course it is the fact that in the great majority of instances where
a secondary party is sought to be convicted of an offence there has been

779
1 Q.B.
A

r_>

JJ

A.-G.'s Reference (No. 1 of 1975) (C.A.)

a contact between the principal offender and the secondary party. Aiding
and abetting almost inevitably involves a situation in which the secondary
party and the main offender are together at some stage discussing
the plans which they may be making in respect of the alleged offence,
and are in contact so that each knows what is passing through the mind
of the other.
In the same way it seems to us that a person, who counsels the commission of a crime by another, almost inevitably comes to a moment
when he is in contact with that other, when he is discussing the offence
with that other and when, to use the words of the statute, he counsels the
other to commit the offence.
The fact that so often the relationship between the secondary party
and the principal will be such that there is a meeting of minds between
them caused the trial judge in the case from which this reference is
derived to think that this was really an essential feature of proving or
establishing the guilt of the secondary party and, as we understand his
judgment, he took the view that in the absence of some sort of meeting
of minds, some sort of mental link between the secondary party and the
principal, there could be no aiding, abetting or counselling of the offence
within the meaning of the section.
So far as aiding, abetting and counselling is concerned we would go a
long way with that conclusion. It may very well be, as I said a moment
ago, difficult to think of a case of aiding, abetting or counselling when
the parties have not met and have not discussed in some respects the
terms of the offence which they have in mind. But we do not see why a
similar principle should apply to procuring. We approach section 8 of
the Act of 1861 on the basis that the words should be given their ordinary
meaning, if possible. We approach the section on the basis also that if
four words are employed here, " aid, abet, counsel or procure," the
probability is that there is a difference between each of those four words
and the other three, because, if there were no such difference, then
Parliament would be wasting time in using four words where two or three
would do. Thus, in deciding whether that which is assumed to be done
under our reference was a criminal offence we approach the section on
the footing that each word must be given its ordinary meaning.
To procure means to produce by endeavour. You procure a thing
by setting out to see that it happens and taking the appropriate steps to
produce that happening. We think that there are plenty of instances in
which a person may be said to procure the commission of a crime by
another even though there is no sort of conspiracy between the two, even
though there is no attempt at agreement or discussion as to the form
which the offence should take. In our judgment the offence described in
this reference is such a case.
If one looks back at the facts of the reference: the accused surreptitiously laced his friend's drink. This is an important element and,
although we are not going to decide today anything other than the problem posed to us, it may well be that, in similar cases where the lacing
of the drink or the introduction of the extra alcohol is known to the
driver, quite different considerations may apply. We say that because,
where the driver has no knowledge of what is happening, in most instances

780
A.-G.'s Reference (No. 1 of 1975) (C.A.)

[1975]

he would have no means of preventing the offence from being committed. If the driver is unaware of what has happened, he will not be
taking precautions. He will get into his car seat, switch on the ignition
and drive home and, consequently, the conception of another procuring
the commission of the offence by the driver is very much stronger where
the driver is innocent of all knowledge of what is happening, as in the
present case where the lacing of the drink was surreptitious.
The second thing which is important in the facts set out in our reference is that, following and in consequence of the introduction of the
extra alcohol, the friend drove with an excess quantity of alcohol in his
blood. Causation here is important. You cannot procure an offence
unless there is a causal link between what you do and the commission of
the offence, and here we are told that in consequence of the addition of
this alcohol the driver, when he drove home, drove with an excess quantity of alcohol in his body.
Giving the words their ordinary meaning in English, and asking oneself whether in those circumstances the offence has been procured, we are
in no doubt that the answer is that it has. It has been procured because,
unknown to the driver and without his collaboration, he has been put in
a position in which in fact he has committed an offence which he never
would have committed otherwise. We think that there was a case to
answer and that the trial judge should have directed the jury that an
offence is committed if it is shown beyond reasonable doubt that the
defendant knew that his friend was going to drive, and also knew that
the ordinary and natural result of the additional alcohol added to the
friend's drink would be to bring him above the recognised limit of 80
milligrammes per 100 millilitres of blood.
It was suggested to us that, if we held that there may be a procuring
on the facts of the present case, it would be but a short step to a similar
finding for the generous host, with somewhat bibulous friends, when at
the end of the day his friends leave him to go to their own homes in
circumstances in which they are not fit to drive and in circumstances in
which an offence under the Road Traffic Act 1972 is committed. The
suggestion has been made that the host may in those circumstances be
guilty with his guests on the basis that he has either aided, abetted,
counselled or procured the offence.
The first point to notice in regard to the generous host is that that is
not a case in which the alcohol is being put surreptitiously into the glass
of the driver. That is a case in which the driver knows perfectly well
how much he has to drink and where to a large extent it is perfectly right
and proper to leave him to make his own decision.
Furthermore, we would say that, if such a case arises, the basis on
which the case will be put against the host is, we think, bound to be on
the footing that he has supplied the tool with which the offence is committed. This, of course, is a reference back to such cases as those where
oxy-acetylene equipment was bought by a man knowing it was to be used
by another for a criminal offence: see Reg. v. Bainbridge [1960] 1 Q.B.
129. There is ample and clear authority as to the extent to which supplying the tools for the commission of an offence may amount to aiding
and abetting for present purposes.

>

**

"

JJ

781
J Q.B.

A.-G.'s Reference (No. 1 of 1975) (C.A.)

Accordingly, so far as the generous host type of case is concerned

we are not concerned at the possibility that difficulties will be created, as
long as it is borne in mind that in those circumstances the matter must
be approached in accordance with well known authority governing the
provision of the tools for the commission of an offence, and never
forgetting that the introduction of the alcohol is not there surreptitious,
and that consequently the case for saying that the offence was procured
B by the supplier of the alcohol is very much more difficult.
Our decision on the reference is that the question posed by the
Attorney-General should be answered in the negative.

Opinion accordingly.
Solicitors: Director of Public Prosecutions; Treasury Solicitor.
L. N. W.

[COURT OF APPEAL]

BRITISH BROADCASTING CORPORATION v. IOANNOU

1975 Feb. 13, 14

Lord Denning M.R., Stephenson

and Geoffrey Lane L.JJ.

E Master and ServantContract for fixed termExclusion of rights

Contract of employment for three years extended for further
two yearsDeterminable by noticeFurther contract for one
year determinable on three month? notice Exclusion of
rights to compensation for unfair dismissal and redundancy
paymentWhether employed for " fixed term " of two years
or moreRedundancy Payments Act 1965 (c. 62), s. 15 (2)
Industrial Relations Act 1971 (c. 72), s. 30
F
The employee was employed by the BBC for a period of
three years from August 7, 1967, to August 6, 1970, under a
contract determinable by three months' notice on either side.
The contract was renewed in 1970 by a two year extension to
August 6, 1972. In February 1972 the employee accepted a
further year's contract from August 7, 1972, to August 6, 1973,
"unless previously determined by either party giving to the
Q
other not less than three months' prior notice in writing " and
it was provided that, in so far as was permitted by the Industrial Relations Act 1971 and the Redundancy Payments Act
1965, non-renewal or non-extension of the engagement would
not constitute grounds for a claim of unfair dismissal or for a
redundancy payment. When the employee's engagement ended
in August 1973 he claimed compensation for unfair dismissal
and a redundancy payment from the BBC.
u
On appeal from an industrial tribunal on a preliminary
point of law, the National Industrial Relations Court held that
the employee had been re-engaged under a new contract in
February 1972 and, since that contract was for a fixed term
of less than two years, he could not contract out of his rights