Introduction
Counselling, as an inchoate offence, occurs when an individual urges another to commit a principal offence. The judgment in R v Calhaem [1985] QB 808 clarifies the legal requirements for proving the actus reus of counselling. The Court of Appeal ruled that the counselling must connect to the specific offence that was later carried out, even if the method differs from what the counsellor suggested. This principle establishes a causal relationship between the counselling and the crime, though exact compliance with the counsellor’s instructions is not required. The case highlights the need to evaluate the type and effect of the encouragement, not just the actions of the principal offender.
Counselling and the Actus Reus
The actus reus of counselling involves urging, asking, or persuading another person to commit a crime. This can include direct instructions, indirect suggestions, or providing information or tools. R v Calhaem demonstrates that the counselling does not need to be the main cause of the offence. What matters is a clear relationship between the encouragement and the crime. The court rejected the argument that counselling must directly affect the offence at the time it occurs, stating that advice can have a lasting impact even if not followed exactly.
The Importance of R v Calhaem
This case interprets Section 1(1) of the Criminal Attempts Act 1981. Before R v Calhaem, the required relationship between counselling and the offence was unclear. The judgment confirms that counselling must relate to the specific crime committed, but the principal offender’s method may vary. This distinction is significant because it recognizes that encouragement can affect someone even if they act independently.
Applying the Calhaem Principle: Examples
If A tells B to kill C by poisoning, but B strangles C instead, A can still be liable for counselling murder under R v Calhaem. The counselling relates to the murder, even though the method changed. However, if A advises B to steal from C and B instead assaults C, A is not liable for counselling assault, as the crimes are separate.
Counselling Compared to Other Inchoate Offences
Counselling differs from aiding and abetting or conspiracy. Aiding and abetting involves direct assistance during a crime, while conspiracy requires an agreement to commit one. Counselling can occur without agreement or direct participation in the crime itself.
R v Calhaem and the Mens Rea of Counselling
Though R v Calhaem focuses on actus reus, it also affects mens rea. The prosecution must prove the counsellor intended to encourage the specific offence. This means the counsellor must have foreseen that the crime might result from their actions. The judgment stresses the need to evaluate the counsellor’s intent. For example, if the counsellor genuinely believed their advice would not be followed, they may lack the required mens rea.
Conclusion
The judgment in R v Calhaem clarifies the law on counselling. It confirms that counselling must relate to the offence committed, even if the method differs. This principle helps define the actus reus of counselling and its connection to the crime. The case establishes the need for a causal relationship between encouragement and the offence, while acknowledging the principal offender’s independence. R v Calhaem, along with other cases on inchoate offences, forms part of the legal basis for addressing those who encourage crimes. Later cases, such as R v Giannetto [1998] and Attorney General’s Reference (No. 1 of 1975) [1975] QB 773, expand on this framework.
