Law Report April 25 1975 Attorney General's Reference No 1 of 1975 Before Lord Widgery, Lord Chief Justice, Mr Justice Bristow and Mr Justice May A person who surreptitiously laces a motorist's drink knowing that he would drive and that his blood-alcohol concentration would exceed the prescribed limit be- cause of the lacing, is guilty of procuring the motorist's offence where he is convicted under sec- tion 6(1) of the Road Traffic Act, 1972. The Court of Appeal so held when answering a question put by the Attorney General in a reference under section 36 of the Criminal Justice Act, 1972. The point of law referred was Whether an accused who sur- reptitiously laced a friend's drinks with double measures of spirits when he knew that his friend would ishortly be driving his car home, and in consequence his friend drove with an excess quantity of alcohol in his body and was con- victed of the offence under the 1972 Act, 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 tile accused did not by accompany- ing him or otherwise positively en- courage the friend to drive, or on any other ground ". Sir Joseph Molony, QC, and Mr Nigel Hamilton for the Attorney General; Mr John Marriage, QC, and Mr Christopher Gardner for the Treasury Solicitor as amicus curiae. The LORD CHIEF JUSTICE said that the origin of the words " aid, abet, counsel or procure " was section 8 of the Accessories and Abettors Act, 1861. whereby in the days when there was a dis- tinction between felony and mis- demeanour it was sufficient to make a person guilty of mis- demeanour-as a " secondary party "-if he aided, abetted, counselled or procured the offence of another. The distinc- tion betveen felonies and mis- demeanours was abolished by section 1 of the Criminal Law Act, 1967. tn the great majority ot Instances where a secondary party was sought to be convicted of an offence there was contact between him and the principal offender. Aiding and abetting almost inevit- ably involved the situation In which the secondary party and the principal offender were together at some stage, discussing the plans they might be making in respect of the alleged offence, and in contact so that each knew what was passing in the other's mind. In the same way a person who counselled the commission of a crime by another almost inevlt- ably came to a moment when he was in contact wvith him and counselled him to commit the offence. The fact that so often the relationship between the secondary party and principal was such that there would be a meeting of minds between them caused the trial judge in the case from which the reference arose to think that it was an essential feature of proving the guilt of the secondary party. As their Lordships understood the reference, the trial judge took the view that, in the absence of some sort of meeting of minds, some mental link between the secondary party and principal there could be no aiding, abetting, counselling or procuring. So far as aiding, abet- ting and counselling were concer- ned, their Lordshiips went a long way with the conclusion. It was difficult to think of a case of aiding, abetting or counselling when the parties had not met and discussed in some respects the offence. But their Lordships did not see why a similar principle should apply to procuring. Section 8 was approached on the basis that the words should, if possible, be given their ordinary meaning and, there being four words used, the probability vas that there was a difference be- tween each and the other three. Each word should be given its ordinary meaning. To procure meant to produce by endeavour, by setting out to see that something happened, and tak- ing appropriate steps to produce that happening. There were plenty of Instances in which a person procured the commission of a crime by another even though there was no sort of conspiracy between the two or attempt at agreement or discus- sion. The offence described in the reference was such a case. Surreptitiously " was im- portant. Their Lordships would not decide other than the prob- lern posed to them. It might well be that in cases where the lacing of the drink or introduction of alcolhol was known to the driver quite different considerations might have to be Introduced. Where a driver had no know- ledge of what had happened he, in most instances, would have no means of preventing the offence being committed, he would not take precautions but would get into his car, switch on the ignition and drive home. The conception of another procuring the offence by the driver was very much stronger where the driver was innocent of knowledge. Also important in the reference was that the motorist drove with excess alcohol following and in consequence of the introduction ot the extra alcohol. Causation was important. One could not pro- cure an offence unless there was a causal link between what one did and the commission of the offence. Giving the words their ordinary English meaning and asking whether in those circumstances the offence had been procured, their Lordships were in no doubt that it had because, unknown to the driver and without his collabora- tion, he had been put in a posi- tion in which, in fact, he had comnlitted an offence which he never would have committed. There was a case to answer. A trial judge, when directing tile jury, siould instruct them that an offe;ce was committed if it was shown beyond reasonable doubt that the defendant knew that the friend was going to drive and also that the ordinary and s afural result of the alcohol added to the friend's drink would be to bring him above the statutory limit. The judge should also direct them to consider whether the act was surreptitious. Their Lordships refused to embark on other and not directly related matters but would add a word about what had been called in argument the social threat to the generous host. It had been suggested that, if the defendant in the reference had a case to answer, it was but a short step to the generous host with some- what bibulous friends who drove home in circumstances in which they were not fit to drive and so were committing an offence under the Act, and that accordingly he might be guilty of aiding, abetting, counselling or procuring. The generous host, however, did not put alcohol in a drink surreptitiously. The driver knew how much he had to drink. Furthermore, if such a case arose, the basis on which it would have to be put against the host was on the footing that he had supplied the " tool " with which the offence was committed. There was ample and clear authority as to the extent to which supplying the tools for the commission of an offence might amount to aid- ing and abetting, counselling and procuring. Difficulty would not be created In the case of a generous host as long as it was borne in mind that the matter had to be approached in accordance with well-known authorities governing the provision of tools for the com- mission of the offence, and never forgetting that the introduction of alcohol was not surreptitious. Con- sequently the case for saying that the offence had been procured by the supply of alcohol was very much more difficult. The question in the terms of the reference was to be answered in the negative. His Lordship referred to the reference procedure and said that the purpose of section 36 of the 1972 Act was to enable the Attorney General to obtain a rul- ing on a point of law which was not capable of being investigated by appeal because the trial had resulted in an acquittal. It would be a mistake to think, and his Lordship hoped that people would not think, that references by the Attorney General were confined to cases where very heavy ques- tions of law arose. On the con- trary, he hoped to see the proce- dure used extensively for short and important points which re- quired a quick ruling before a potentially false decision of law had too wide a circulation in the courts. Solicitors DPP Treasury Solicitor. Law Report April 25 1975 Court of Appeal Lacing driver's drink surreptitiously is an offence