R v Calhaem [1985] QB 808

Facts

  • The case concerned the offence of counselling, specifically when an individual urges, asks, or persuades another to commit a principal offence.
  • The defendant was accused of counselling another person to commit a crime.
  • The principal offence was ultimately carried out, but potentially by a different method than what was suggested by the alleged counsellor.
  • The nature and effect of the counsellor’s encouragement were at issue, alongside the actions of the principal offender.

Issues

  1. Whether the actus reus of counselling requires the counselling to relate specifically to the commission of the resultant offence.
  2. Whether the principal’s deviation from the suggested method of committing the crime affects the counsellor’s liability.
  3. Whether the prosecution must prove the counsellor intended to encourage the specific offence.
  4. How counselling as an inchoate offence differs from aiding and abetting or conspiracy.

Decision

  • The Court of Appeal determined that the actus reus of counselling is satisfied if there is a clear relationship between the encouragement given and the offence committed.
  • It was held that the counselling need not be the main or only cause of the principal offence, nor must it be followed exactly.
  • The court rejected the argument that the advice must affect the crime at the precise moment of commission; prior encouragement can suffice even if the method differs.
  • Liability does not arise if the encouraged crime and the committed crime are entirely unrelated.
  • The prosecution must prove the counsellor intended to encourage the principal offence.

Legal Principles

  • Counselling involves urging, persuading, or providing suggestions or tools to commit a crime; such encouragement must relate to the specific offence committed.
  • The causal link between advice and offence need not involve strict compliance with the counsellor’s instructions.
  • Counselling does not require direct participation or an agreement, distinguishing it from aiding and abetting or conspiracy.
  • Mens rea for counselling requires an intention to encourage the particular offence; lack of belief that the advice would be followed may negate this.
  • Section 1(1) Criminal Attempts Act 1981 is relevant to the structure of inchoate offending.

Conclusion

R v Calhaem establishes that counselling liability depends on a causal relationship between encouragement and the crime actually committed, regardless of the method adopted, provided the offence remains the same and the necessary intent to encourage is established.

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