## Facts

- After heavy drinking, Leak brought Cogan to Leak’s home, told his wife he would “allow” Cogan to have sex with her, and used violence to have intercourse with her.
- Leak then brought Cogan into the bedroom and procured him to have intercourse with Leak’s wife while she was sobbing, visibly upset, and resisting.
- The wife reported the incident to police; Cogan was charged as principal with rape, and Leak was charged with aiding and abetting rape of his wife (and also faced attempted buggery and assault occasioning actual bodily harm counts).
- At trial, Cogan admitted intercourse but asserted he honestly believed the wife consented; the jury accepted he held that belief, though it was unreasonable.
- Leak admitted procuring Cogan’s intercourse and intending that his wife be raped.
- The Crown Court convicted Cogan of rape and convicted Leak as aider and abettor to rape; Leak received seven years’ imprisonment on the rape count with concurrent sentences on the other counts.
- After the decision recognizing that an honest belief in consent (even if unreasonable) negates rape mens rea, Cogan’s rape conviction was quashed due to misdirection requiring a reasonable belief.
- Leak appealed, arguing he could not be convicted as an accessory if the principal was not convicted and that marital rape immunity barred his liability regarding his wife.

## Issues

1. Whether an accessory can be convicted of aiding and abetting rape when the physical actor is acquitted because he lacked the mens rea for rape due to an honest belief in consent.
2. Whether the then-existing marital rape immunity prevented a husband from being convicted as an accessory to the rape of his wife by another man.
3. Whether a valid conviction of a principal offender is a prerequisite to convicting an accessory.

## Decision

- The Court of Appeal (Criminal Division) upheld Leak’s conviction for aiding and abetting rape notwithstanding the quashing of Cogan’s rape conviction.
- The court held that intercourse occurred without the wife’s consent, satisfying the external elements of rape, even though Cogan was not criminally liable due to absence of mens rea.
- The court rejected the claim that an accessory’s conviction depends on the principal’s conviction, reasoning that such a rule would defeat justice and common sense where the accessory intentionally procured the non-consensual act.
- The court held that marital rape immunity (as it then existed) did not exempt a husband from liability for procuring a third party to rape his wife.
- The rape conviction and principal sentence imposed on Leak were not disturbed on appeal.

## Legal Principles

- An accessory may be convicted for aiding, abetting, or procuring an offence even if the person who performed the physical act is acquitted based on a personal defence or lack of mens rea.
- For complicity in rape, it is sufficient that the non-consensual intercourse occurred (actus reus) and that the accessory intentionally assisted or procured it with the required guilty intent, even if the penetrator lacked mens rea.
- The rule that a husband could not be convicted as principal for raping his wife (as it then stood) did not bar conviction where the husband procured another man to commit the non-consensual intercourse.

## Conclusion

The court affirmed that Leak’s deliberate procurement of non-consensual intercourse supported accessory liability for rape even though Cogan was not guilty as a principal due to an honest belief in consent, and it further held that the then-marital immunity did not shield a husband who arranged for a third party to rape his wife.


Regina v. Cogan & Leak, [1976] 1 Q.B. 217 (C.A. Crim. Div.)