JUDGES: Lowry C.J., Jones and McGonigal L.JJ.

 

DATE: 1978 Jan. 17

 

Appeal against conviction.

 

LOWRY C.J. The appellant, James Charles Maxwell, was tried by MacDermott J. without a jury under the Emergency Provisions (Northern Ireland) Act 1973 on an indictment containing four counts:

 

“1. Doing an act with intent, contrary to section 3 (a) of the Explosive Substances Act 1883.”

 

The particulars alleged:

        

“James Charles Maxwell on January 3, 1976, in the County of Antrim unlawfully and maliciously did an act with intent to cause by explosive substances, namely a pipe bomb, an explosion in the United Kingdom of a nature likely to endanger life or cause serious injury to property, in that he placed the said pipe bomb with fuse lit inside the premises known as the Crosskeys Inn at Toomebridge in the said county.”

        

“2. Possession of explosive substance with intent, contrary to section 3 (b) of the Explosive Substances Act 1883.”

 

The particulars of this offence alleged:

 

“James Charles Maxwell on January 3, 1976, in the County of Antrim unlawfully and maliciously had in his possession or under his control a pipe bomb with intent by means thereof to endanger life or cause serious injury to property in the United Kingdom or to enable any other person by means thereof to endanger life or cause serious injury to property in the United Kingdom.”

   

“3. Failing to give information, contrary to section 5 (1) of the Criminal Law Act (Northern Ireland) 1967.

   

“4. Belonging to a proscribed organisation, contrary to section 19 (1) (a) of the Northern Ireland (Emergency Provisions) Act 1973, namely, the Ulster Volunteer Force, between October 4, 1975, and January 23, 1976.”

 

The appellant’s trial commenced on October 13, 1976. He pleaded guilty to counts 3 and 4 and was sentenced to 4 years’ imprisonment concurrently on each count. The trial of counts 1 and 2, to which he pleaded not guilty, [*1365] lasted till October 22, and resulted in a conviction on each count. On October 28 the trial judge imposed sentences of 8 years’ imprisonment, to run concurrently with each other and with the sentences passed in respect of counts 3 and 4. The appellant has appealed against his conviction on counts 1 and 2.

        

The Crosskeys Inn is an old coaching inn on what was the Old Coach Road from Randalstown to Portglenone. One approaches the inn travelling from Randalstown along the Grange Road. The inn is on the left at the roadside opposite the Crosskeys Road which leads, after about one mile, to the main Randalstown-Portglenone Road. On the evening of January 3, 1976, about 9.40 p.m. the proprietor, Mr. John Stinson, was in the car park doing security duty. The car park is on the Randalstown side of the inn. He noticed a light coloured sports car drive up the Grange Road from the Randalstown direction and pass slowly in front of the inn. It continued some 200 yards came back and turned up into the Crosskeys Road, where it stopped. Mr. Stinson was understandably suspicious and he approached quite close to the car. It turned and drove off rapidly down the Grange Road towards Randalstown. Some seven to ten minutes later a silver coloured Cortina came up the Grange Road from the Randalstown direction and stopped in the Crosskeys Road. Someone got out, ran across to the inn and then returned to the car which drove off. No one has identified that person but he or she delivered the pipe bomb by leaving it inside the front door of the inn in a narrow hallway. There it was seen by the proprietor’s son who courageously pulled out the fuse and detonator and carried the bomb out. There were 30 or 40 people in the inn and if the bomb, estimated to contain 5 1b. of commercial explosive had exploded it would have caused serious damage to the premises and many people would have been killed or injured. It is material to state here that Mr. Stinson was a Roman Catholic.

        

The evidence linking the accused with the attack on the inn is found in the answers which he gave to the police when interviewed at Antrim R.U.C. station on January 21, 1976, and in a written statement made by him on January 22. The questions put to him and his answers were as follows:

 

“(Q.) Is there anything else? (A.) I’m trying to think. I don’t think so. I was mostly used for welfare work. (Q.) What do you mean? (A.) You know. Collecting money and that and doing tote cards for Loyalist prisoners. (Q.) Can you remember anything else? (A.) I think that’s all. Except the Crosskeys bar. I forgot about that. (Q.) When was that? (A.) The beginning of this month. (Q.) Tell me more. (A.) A man came to the house and told me to get my car and follow him. He drove to Dunadry. When I got to Dunadry and he told me to drive to the Crosskeys bar and a car would follow me. He told me to go home as soon as I reached the bar. (Q.) Who was the man? (A.) I can’t say. (Q.) Do you know him? (A.) Yes. (Q.) O.K. What about this car. The other car? (A.) It was there when I got there. (Q.) At Dunadry? (A.) Yes. (Q.) What sort of car was it and who was in it? (A.) A silver Cortina. There was 3 or 4 men in it. They were all strangers. I think they were from Belfast. (Q.) Where did the man you followed go to? (A.) He said he would lead us as far as Kells. Then I would take over and he would clear off. He turned off a slip road. (Q.) What happened when you got to the bar? (A.) I just drove home. The other car must have stopped. After I passed the bar it stopped following me. (Q.) Did you stop at all? (A.) No. I just kept driving. (Q.) Did you know what was going to be done? (A.) No. I knew that something was on but nobody told me what it was. I’ve told you all I was told. I should not have been on that job at all.”

 

This was the written statement:

        

“At seven o’clock in the evening of January 3, 1976, a man called at my house and told me to take my car and follow him to the Dunadry area. When we got to Dunadry this man told me that I was to follow him for [*1366] a distance and after he turned off the road on the Ballymena side of Kells I was to guide a car travelling behind me to the Crosskeys bar. He told me that when I did this I should go home. The car he mentioned, a silver Cortina, was waiting at Dunadry when we arrived. It looked like there were three or four people in the car. They seemed to be all men. None of the men in this car were local men, and I did not know what job they were going to do. The three cars then drove off towards Ballymena and I guided this other car to the Crosskeys bar. When I got to the bar I did not stop, but drove on home. After I passed the bar, the car was no longer behind me. I later heard that this was an attempt to bomb the bar but the bomb did not go off. I want to say that just after the death of my father I was told by my O.C. that I would not be used for any further military actions and that I would be doing welfare work only. I therefore should not have been used on this job. I think it was about 9 o’clock when I arrived at Crosskeys bar. I used my own car for this, it is a white MGB GT.”

 

The defence did not challenge the admissibility of the oral or written statements or the accuracy of the record.

        

Some further relevant facts should be mentioned. These are first that Dunadry is not a long journey from the Crosskeys, since it is about four miles on the Belfast side of Antrim (in the opposite direction from the Crosskeys Inn) and about 23 miles from the Crosskeys Inn. Thus the total journey from Antrim to Dunadry and back to Crosskeys could have been done in two hours with plenty of time to spare. Secondly, the appellant was at the time, and had been since 1972, a member of the U.V.F., which was then a proscribed organisation, although deproscribed between May 23, 1974, and October 4, 1975. Thirdly, though the courts have had all too much experience over recent years of this and other proscribed organisations and their activities, there was the evidence in this case of Detective Superintendent Hylands who said that the U.V.F. in County Antrim have been responsible for a number of murders and attempted murders with and without firearms and also a number of sectarian bombings, including the bombing of Catholic-owned public houses.

        

At the end of the Crown case Mr. Kennedy, for the appellant;ant, submitted that a prima facie case had not been made out on count I or 2. The trial judge after hearing argument ruled against this submission and the accused elected not to give or call evidence.

        

After hearing further short submissions from counsel the trial judge subsequently gave judgment in which he found the appellant guilty on both counts and in the course of which he drew the following inferences: 1. The “job” which the accused describes was one organised and carried out by members of the U.V.F. 2. The silver Cortina which the accused, in his sports car, led from Kells to the Crosskeys Inn was the Cortina car from which o the bomber emerged, as described by Mr. Stinson (the public house proprietor). 3. The accused, who lives in Antrim, was chosen to act as lead car because of his local knowledge. A person with such knowledge was an essential element in the plan because the occupants of the Cortina were strangers and the road from Kells to the inn was across country and anything but direct. 4. The preparation for the timing and route of the journey, together with the whole set up of the job, indicated that the “job,” in the sense in which the accused used the word, was to be an attack on the Crosskeys Inn, not a casual or social visit or a mere reconnaissance. 5. As used by the accused, the word “job” is synonymous with military action which raises, having regard to the proven activities of the U.V.F., the irresistible inference that the attack would be one of violence in which persons would be endangered or premises seriously damaged.

        

The judge adverted to Mr. Kennedy’s legal submission (1) that there was no evidence that the appellant knew the nature of the job which was being [*1367] undertaken and (2) that the appellant did not know of the presence of the bomb in the Cortina: accordingly, counsel had submitted, the appellant could not be guilty of an offence under either section 3 (a) or section 3 (b).

        

In support of his argument counsel had referred to the appellant’s statement in which he had disclaimed knowledge and to the evidence of Detective Constable Taylor who, when asked in cross-examination whether he accepted the appellant’s claim that he did not know what job they were going on, said that he did accept this.

        

The trial judge, referring to Reg. v. Storey (1968) 52 Cr.App.R. 334, pointed out that exculpatory remarks in the appellant’s statement did not become evidence in his favour and that the appellant had not given evidence in support of his declaration of ignorance. The trial judge further considered with reference to the Detective Constable’s testimony, that evidence of the appellant’s state of mind could not be introduced “in such an oblique fashion”:

 

“His state of mind in the absence of evidence thereon given by himself must be gleaned from all the relevant facts and surrounding circumstances and in expressing his belief and opinion the constable is, in effect, being asked the very question I am asked to answer. Accordingly, in my judgment, I must seek to ascertain the accused’s state of mind and knowledge, from all the surrounding facts, his statement and the inferences which I have already mentioned.”

 

The trial judge had already stated in his judgment that the central feature in the case was the appellant’s state of knowledge and mind at the material time. He proceeded to give four reasons. (1) The case against the appellant was that he was one of a group acting pursuant to common design. The Crown still had to prove criminal intent, as pointed out by Lord Diplock in Reg. v. Merriman [1973] A.C. 584, 607:

 

“. . . whenever two or more defendants are charged in the same count of an indictment with any offence which men can help one another to commit it is sufficient to support a conviction against any and each of them to prove either that he himself did a physical act which is an essential ingredient of the offence charged or that he helped another defendant to do such an act, and, that in doing the act or in helping the other defendant to do it, he himself had the necessary criminal intent.”

 

(2) To be guilty of aiding and abetting, a person must be proved to have been consciously participating in what was being done and also must have knowledge of the facts which go to constitute the offence committed: see Russell on Crime, 12th ed. (1964), vol. I, p. 147. (3) Knowledge is an essential element in the legal concept of possession: Reg. v. Warner [1969] 2 A.C. 256. (4) Intention is a vital ingredient of an offence under section 3 (b). Having adverted to the doctrine of wilful blindness (as constituting knowledge), the judge preferred to form a view as to the appellant’s actual state of knowledge, but observed that the wilful blindness doctrine was a valuable reminder that knowledge is not limited to precise knowledge. He then continued:

 

“In my judgment, the facts of this case make it clear to me that the accused knew the men in the Cortina car were going to attack the inn and had means of attacking the inn with them in their car. The accused may not, as he says, have known what form the attack was going to take, but in my judgment he knew the means of the attack, be they bomb, bullet or incendiary device, were present in that car. Further, as the distance from Dunadry to the inn was given as 23 miles and the time that elapsed between the rendezvous at Dunadry and the arrival at the inn must, on any showing, have been at least two hours (for I accept Mr. Stinson’s time), the inference is that this was not a non-stop journey as the accused claims, but a journey broken on at least one occasion, when, in addition to the initial meeting, the accused could easily, if he had been so minded, have found out what means of attack were present in the Cortina and so knew [*1368] whether he was leading bombers or gunmen to the inn. Put another way the description of the events as they appear in the statement seem to me to be a chosen selection of the events of this evening and short of a full and honest account of everything which happened or was done or said.”

 

After reviewing Reg. v. Bullock [1955] 1 W.L.R. 1; Reg. v. Bainbridge [1960] 1 Q.B. 129 and Thambiah v. The Queen [1966] A.C. 37, the judge said:

 

“In my judgment, the accused knew that he was participating in an attack on the inn. He performed an important role in the execution of that attack. He knew that the attack was one which would involve the use of means which would result in danger to life or damage to property. In such circumstances, where an admitted terrorist participates actively in a terrorist attack, having knowledge of the type of attack intended, if not the weapon chosen by his colleagues, he can in my view be properly charged with possession of the weapon with which it is intended that life should be endangered or premises seriously damaged.”

 

The judge inferred that the appellant set off to lead a vehicle to the Crosskeys Inn, in order that other members of the organisation to which he belonged could attack the inn, and that by leading them to the inn he actively participated in the attack.

        

With regard to count 2 the judge concluded that the appellant by his presence in an accompanying car was, in the circumstances known to him, actively participating in the transportation of the bomb which was used in the attack. Accordingly, he convicted the appellant on counts 1 and 2.

        

The appellant has appealed against his conviction on the grounds:

 

(1) The trial judge should have ruled that the accused had no case to meet at the conclusion of the case for the Crown, on either count 1 or count 2. (2) The convictions were against the evidence and the weight of the evidence. (3) In the alternative (a) there was no evidence, or insufficient evidence, upon which to infer the knowledge and intent necessary to support the verdict that the accused was an accessory to placing a bomb, contrary to section (3) (a) of the Explosive Substances Act 1883; (b) There was no evidence, or insufficient evidence, upon which to infer the knowledge and control necessary to support the verdict that the accused was an accessory to the possession of explosives contrary to section 3 (b) of the Act. (4) The trial judge misdirected himself as to the test of guilt of the specific statutory offences under the Explosive Substances Act 1883 or, in the alternative, misapplied the proper test in (i) holding that knowledge of the existence of an explosive substance (within the meaning of the Act) was not an essential ingredient of guilt of an offence of being an accessory to the doing of an act contrary to section 3 (a), and that, instead, knowledge of the existence or probable existence of some other, and unspecified, weapon or material of offence, such as firearms, or an incendiary device, was sufficient; (ii) holding that actual knowledge of the existence of an explosive substance (within the meaning of the Act) was not an essential ingredient of guilt as an aider and abettor of possession, contrary to section 3 (b). (5) The trial judge erred in finding that the appellant was a procurer of the attack upon the public house. (6) The trial judge misdirected himself in law in ruling that the appellant, as a member of a terrorist organisation likely to attack public houses, as an accessory to the attack upon the public house, was, therefore, without more, guilty also of the specific statutory offences under the Explosive Substances Act 1883 committed by the principals in the first degree. (7) The trial judge erred in law in giving no weight, or in the alternative insufficient weight, to the evidence of the police officer to the effect that he, the witness, an officer investigating the appellant’s concern in the affair, was unaware of any fact to contradict the claim made by and on behalf of the appellant that the appellant had not known [*1369] the nature of the enterprise in which he was to play a part, and to the effect that he, the witness, believed this claim. (8) The trial judge erred in considering as evidence only the incriminating portions of the accused’s oral and written statements while excluding, or in the alternative giving insufficient weight to, any denials or explanations contained therein, when such denials or explanations were reasonably capable of belief. (9) The trial judge erred in considering as evidence only the incriminating portions of the accused’s oral and written statements and in treating as exculpatory and self-serving the favourable portions thereof, there being no evidence giving rise to a prima facie case against the appellant other than that contained in such statements.

 

The grounds of appeal fall into three groups, two of which can be quite briefly dealt with. Ground 7 was based on the answers given by Detective Constable Taylor, when cross-examined as to whether he accepted the appellant’s claim that he did not know what was afoot. The trial judge did not act on the views given by the constable and gave his reasons for adopting that course. In our view the judge was justified in acting as he did and we consider that his reasons cannot be faulted. The issue involved was central to what the judge, as the tribunal of fact, had to determine on all the evidence and on the inferences to be drawn from it. We are satisfied that he was not bound to act on the view (which at its highest was only a view) expressed by a witness on this issue.

        

It will be noted that, although he did not adopt the witness’s view that the appellant “tried to include as much detail as he possibly could,” the trial judge did not attribute to the appellant actual knowledge of the precise job in which he was engaged or of the means of offence which were carried in the Cortina to the Crosskeys Inn. The only material departure in his reasoning from the view taken by the detective constable was when he characterised the events described in the statement as “a chosen selection of the events of this evening and short of a full and honest account of everything which happened or was done or said.” Quite apart from the inadmissibility of the constable’s evidence, to which Mr. Appleton objected in his closing submission, we consider that the trial judge was entitled to draw the inference which he did concerning the appellant’s lack of candour and to approach the legal and factual solution of the case on the basis of that inference.

        

Grounds 8 and 9 were concerned with the weight properly attributable to those observations in the appellant’s statement which were favourable to him. We were referred to several cases on this subject, including the leading case of Reg. v. Storey, 52 Cr.App.R. 334 (which the trial judge had mentioned). In our view none of the cases propounded a principle helpful to the appellant. Here there was material available from a question and answer interview and from the appellant’s written statement. In order to reach a conclusion whether the Crown had established its case beyond a reasonable doubt, the judge had to consider that material. Having done so, he concluded that the appellant knew, at any rate by the time he reached Dunadry, that a job, in the sense of a violent attack, was to take place in relation to the Crosskeys Inn. No doubt the appellant said he did not know what the job was but that statement, taken in conjunction with everything else which the appellant had said, could only mean that he knew there was a job on but not what precise form it was going to take. And the appellant did not back up his oral and written statements with evidence; therefore the trial judge was left to reach a conclusion as to what those statements meant. And this he did. The appellant was not entitled to have a sentence or two taken out of its context and construed as his counsel sought to construe it. As the trial judge put it: “Such exculpatory remarks contained in the statement do not thereby become evidence in the accused’s favour.” In our view the [*1370] reasoning of the trial judge cannot be impeached for the manner in which he dealt with this point.

        

I now come to the third group of grounds of appeal (1 to 6). Although numerous, they really represent alternative ways of putting the same point and were taken together for the purpose of argument in this court. The burden of counsel’s submission was that, in order to be guilty as an aider and abettor, an accused must be shown to have known the type of crime to be committed and the kind of means of offence being carried to the scene: as he was not shown to have that knowledge, it was argued, he could not be said to have been an aider and abettor and accordingly he could not be said to have been an accessory either to the placing of the bomb or to its possession by the occupants of the Cortina car. The five inferences in the trial judge’s judgment were not seriously challenged in this court by Mr. Kennedy. Indeed he expressly accepted, when it was put to him in the course of the argument, that the appellant facilitated - that is, made possible - an attack (though he later expressed a preference for the expression “hostile visit”) on Crosskeys, although he did not know, as Mr. Kennedy submitted, what form the attack would take; and that it was a reasonable inference from the evidence that the appellant knew he was participating in a military-type job. Of course, it is necessary to examine the facts to see whether these concessions were justified, since, although Mr. Kennedy is a very experienced advocate, it is the duty of this court to see for itself whether it is satisfied with an inference, even in the form of a concession, to the detriment of the appellant. When, however, one examines the appellant’s statements, both oral and written, it appears to us that the trial judge’s inferences and counsel’s concessions were (with one possible exception to which I shall refer) not only justified but inevitable. Whatever the appellant may have known earlier, as soon as he got to Dunadry, he knew there was a job on. The only sort of job suggested in argument as an alternative to a military, or hostile, job seems to have been a welfare task, which the appellant described as collecting money and doing tote cards for Loyalist prisoners, but was any such task entailed in guiding another car, containing three or four men, on a hostile visit (to use words of Mr. Kennedy’s own choice) over several miles of roads at night to a public house? Such a suggestion has only to be made for its unreality to be demonstrated. Therefore we consider that the trial judge’s inferences, and Mr. Kennedy’s concessions in this court, were reasonable.

        

The only question is whether it follows from the evidence that it was of necessity clear in the mind of the appellant, when he was briefed, that the object was an attack on the Crosskeys Inn; it is possible (although these were not suggested by Detective Superintendent Hylands to be typical of U.V.F. activities in the area) that the appellant could have contemplated a robbery or a shooting at the inn as one of the alternatives. The facts proved could also, it seems, support the conclusion that, so far as the accused was concerned, the inn might simply have been a landmark or rendezvous for the purpose of an attack on a person or premises in the vicinity. The behaviour of the sports car which Mr. Stinson saw tended to show that it was the inn itself which interested the driver, but, although the judge thought that this was probably the appellant’s car, he was (because of Mr. Stinson’s description of the roof) not satisfied of this beyond reasonable doubt.

        

One can at least be sure beyond reasonable doubt that a U.V.F.-type attack must have been in the mind of the appellant and that a bombing attack on the inn must have been one of the likeliest jobs to occur to him when he was briefed for the mission. This is, in our view, a crucial point so far as the requirement of guilty knowledge and intent is concerned.

        

With reference to the particulars in counts 1 and 2 we must remember that the appellant was convicted for being an accomplice and not regarded by the judge as a principal. At common law, of course, and under section 8 of the Accessories and Abettors Act 1861 he was liable to be “tried, [*1371] indicted, and punished as a principal offender.” This section now applies to all offences: see section 1 of the Criminal Law Act (Northern Ireland) 1967. Section 5 of the Act of 1883 is to the same effect. But what had to be proved beyond reasonable doubt against the appellant was that he intentionally assisted in the placing of the bomb by the principals and in the principals’ having possession of the explosives, not that he himself personally placed the bomb or had possession of the explosives.

        

I shall, like the authors of Smith and Hogan, Criminal Law, 3rd ed. (1973) ch. 8, use the terms “abettor” and “counsellor” to cover aiding and abetting on the one hand and counselling and procuring on the other. An abettor is one who is present assisting or encouraging the principal at the time of the offence while a counsellor is one who before the commission of the crime conspires to commit it, advises its commission or knowingly gives assistance to one or more of the principals. It is enough to prove an accused to be an abettor or a counsellor without showing which. Abetting and counselling are by origin common law offences and a guilty mind is a necessary ingredient. The Crown must prove that an accused participated before or during the commission of the crime, assisted the principal and intended to assist him. The mens rea required goes to intent only and does not depend on desire or motive: National Coal Board v. Gamble [1959] 1 Q.B. 11, 23; and Reg. v. Lynch [1975] N.I. 35, 55-57.

        

The classic statement of Lord Goddard C.J. in Johnson v. Youden [1950] 1 K.B. 544, 546-547 was cited and approved in Reg. v. Churchill (No. 2) [1967] 2 A.C. 224, 236-237:

 

“Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence. If a person knows all the facts and is assisting another person to do certain things, and it turns out that the doing of those things constitutes an offence, the person who is assisting is guilty of aiding and abetting that offence, because to allow him to say, ‘I knew of all those facts but I did not know that an offence was committed,’ would be allowing him to set up ignorance of the law as a defence. The reason why, in our opinion, the justices were right in dismissing the informations against the first two defendants is that they found, and found on good grounds, that they did not know of the matters which in fact constituted the offence; and, as they did not know of those matters, it follows that they cannot be guilty of aiding and abetting the commission of the offence.”

 

The question for the purpose of this case is therefore what is meant by the requirement that the alleged counsellor or abettor “must at least know the essential matters which constitute that offence.”

        

Johnson v. Youden is merely one example of many cases in which the distinction is between knowledge and ignorance of facts which constitute a criminal offence. There are a few cases, however, where the contrast is between knowledge of facts constituting a particular crime and knowledge of a less detailed kind which nevertheless is enough to show that the accused (1) knew that something criminal was afoot, and (2) intended to facilitate its commission.

        

Reg. v. Bullock [1955] 1 W.L.R. 1 is such a case. It was concerned with two counts of breaking and entering at different times and places, the common link between which was the use of a car which had been hired by the accused. His defence was an alibi and at the trial the Crown case proceeded on the basis of an allegation that the accused was present at the commission of each crime. The judge charged the jury on the same basis, but, after they had retired to consider their verdict, they returned and asked what was the law if the accused knew that his car was being used for an [*1372] unlawful purpose. The trial judge directed them that, if the accused was not present but the car was, to his knowledge, being driven by the thief or thieves, he would be an accessory before the fact. The Court of Criminal Appeal upheld the conviction.

        

Remarkably enough, when one considers the course of the trial, the accused could hardly be said to have been convicted secundum allegata et probata, but what we are now concerned with is the principle stated in the judgment of the Court of Criminal Appeal by Devlin J. Counsel for the appellant in Bullock’s case sought to rely on Rex v. Lomas (1913) 9 Cr.App.R. 220, where the headnote (misleadingly, as the court held) included a statement to the effect that there must be some particular crime in view. Devlin J. said [1955] 1 W.L.R. 1, 4:

 

“Mr. Lawton has cited and relied upon Rex v. Lomas. The headnote to that case reads: ‘Mere knowledge that the principal intends to commit crime does not constitute an accessory before the fact: there must be some particular crime in view.’ The first part of that headnote, that is, ‘Mere knowledge that the principal intends to commit crime does not constitute an accessory before the fact’ is unexceptionable as far as it goes; mere knowledge is not of itself enough, there must be something further. But in the circumstances of this case, once it was plain that the appellant had hired the car and had control of it, it was equally plain, if he knew that it was being used, that he must also have permitted it to be used. He must formally or informally have lent it for that purpose, and that is certainly enough.”

 

Reg. v. Bainbridge [1960] 1 Q.B. 129 is the case where the Stoke Newington branch of the Midland Bank was broken into and oxyacetylene equipment was used in the crime. The arguments of counsel in the Court of Criminal Appeal illustrate many of the points which were taken in the case before us. The trial judge had directed the jury that the prosecution had to prove that the defendant knew that a felony of the type committed was intended and with that knowledge did something to help the felons commit the crime, but that they need not prove that he knew what premises were to be broken into. The court held this direction to be correct and Lord Parker C.J. said, at pp. 133-134:

 

“Mr. Simpson, who has argued this case very well, contends that that direction is wrong. As he puts it, in order that a man should be convicted of being accessory before the fact, it must be shown that at the time he bought the equipment in a case such as this he knew that a particular crime was going to be committed, and by a particular crime Mr. Simpson means that the premises in this case which were going to be broken into were known to the appellant and contemplated by him, and not only the premises in question but the date when the breaking was going to occur; in other words, that he must know that on a particular date the Stoke Newington branch of the Midland Bank is intended to be broken into.

   

“The court fully appreciates that it is not enough that it should be shown that a man knows that some illegal venture is intended. To take this case, it would not be enough if he knew - he says he only suspected - that the equipment was going to be used to dispose of stolen property. That would not be enough. Equally, this court is quite satisfied that it is unnecessary that knowledge of the particular crime which was in fact committed should be shown to his knowledge to have been intended, and by ‘particular crime’ I am using the words in the same way in which Mr. Simpson used them, namely, on a particular date and particular premises.

        

“It is not altogether easy to lay down a precise form of words which will cover every case that can be contemplated but, having considered [*1373] the cases and the law this court is quite clear that the direction of Judge Aarvold in this case cannot be criticised. Indeed, it might well have been made with the passage in Foster’s Crown Cases, 3rd ed. (1809), P. 369 in mind, because there the author says: ‘If the principal totally and substantially varieth, if being solicited to commit a felony of one kind he wilfully and knowingly committeth a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt. For on his part it was no more than a fruitless ineffectual temptation,’ the converse, of course, being that if the principal does not totally and substantially vary the advice or the help and does not wilfully and knowingly commit a different form of felony altogether, the man who has advised or helped, aided or abetted, will be guilty as an accessory before the fact.

   

“Judge Aarvold in this case, in the passage to which I have referred, makes it clear that there must be not merely suspicion but knowledge that a crime of the type in question was intended, and that the equipment was bought with that in view. In his reference to the felony of the type intended it was, as he stated, the felony of breaking and entering premises and the stealing of property from those premises. The court can see nothing wrong in that direction.”

 

Mr. Kennedy would seek to say that, if Reg. v. Bainbridge is to be followed, its operation should be confined to the type of case where the accused knows that an attack by means of explosives is intended but perhaps does not know the target or the precise date of the intended operation. Counsel would argue on the same principle that it was necessary that the appellant should at least be proved to have known that there were explosives of some kind in the Cortina, even if he did not know their precise nature. There are analogous cases concerning the possession of forbidden drugs where their existence but not their precise nature is known to the accused: Reg. v. Warner [1969] 2 A.C. 256, 289. I digress for a moment to point out that firearms and ammunition are, by virtue of section 9 of the Act of 1883, “explosive substances.”

        

Clearly, in Reg. v. Bainbridge [1960] 1 Q.B. 129 the Court of Criminal Appeal considered that the knowledge of the appellant was sufficient to satisfy the test propounded in Johnson v. Youden [1950] 1 K.B. 544 which was cited in that case in argument for the appellant. Before leaving Bainbridge we would refer to the argument of Crown counsel in that case who said, at pp. 131-132:

 

“The word ‘contemplated’ is perhaps the most appropriate to use; a man is accessory before the fact if he gives assistance beforehand to the principal for the purpose of the principal carrying out an offence which he then contemplates. It need not be an offence against a particular contemplated subject.”

 

Lord Pearce in Thambiah v. The Queen [1966] A.C. 37 said, at p. 46:

 

“Nice problems may arise when preparations abetting one kind of crime are followed by the execution of a crime of another kind or when the abetting preparations are merely for some criminal but indefinite purpose. The only two cases on abetting to which their Lordships were referred do not help. In Reg. v. Bullock [1955] 1 W.L.R. 1 (explaining Rex v. Lomas, 9 Cr.App.R. 220) a person who hired cars which were used in two burglaries was held guilty as an accessory. But the point there in issue was how far there had been any sufficient direction of the jury on the facts of that case. The case contains little guidance on the question how much particularity of intention must be shown in proving the charge of abetting. This is a matter which must clearly be affected by the extent and degree of the abettor’s activities and their proximity to the actual crime.” [*1374] It is just such a problem that we now have to decide. What then is the real principle? A clue may be provided by the words of Lord Goddard C.J. in Thomas v. Lindop [1950] 1 All E.R. 966, 968:

 

“More than once this court has pointed out that it is impossible to convict persons of aiding and abetting the commission of an offence unless they know the facts which must be proved to show that an offence has been committed. We pointed that out in Ackroyd’s Air Travel Ltd. v. Director of Public Prosecutions [1950] 1 All E.R. 933, and Avory J. and Shearman J. said it in no uncertain terms in Bowker v. Premier Drug Co. [1928] 1 K.B. 217. It is, of course, not necessary to show that the person knew that it was an offence, because he cannot plead ignorance of the law, but where anyone is charged with aiding and abetting a person to commit an offence, it must, at least, be shown that he knew what that person was doing. A person who does not know of the acts which another person is doing cannot be charged with aiding and abetting him because he does not know that he is doing acts which amount to an offence.”

`

The emphasis here is not placed, as in Johnson v. Youden [1950] 1 K.B. 544, on knowing “the essential matters which constitute [the] offence” but on knowing “the facts which must be proved to show that an offence has been committed” and on knowing that the principal “is doing acts which amount to an offence.”

        

Once the “particular crime” theory of guilty knowledge is rejected in favour of the Bainbridge principle, the question arises how far that principle goes. In a practical sense the question is whether the principle applies to the facts proved in this case.

        

Suppose the intending principal offender (whom I shall call “the principal”) tells the intended accomplice (whom I shall call “the accomplice”) that he means to shoot A or else leave a bomb at A’s house and the accomplice agrees to drive the principal to A’s house and keep watch while there, it seems clear that the accomplice would be guilty of aiding and abetting whichever crime the principal committed, because he would know that one of two crimes was to be committed, he would have assisted the principal and he would have intended to assist him. Again, let us suppose that the principal tells the accomplice that the intention is to murder A at one house but, if he cannot be found or the house is guarded, the alternative plan is to go to B’s house and leave a bomb there or thirdly to rob a particular bank (or indeed murder somebody, or bomb somebody’s house or rob any bank, as to which see Bainbridge) and requests the accomplice to make a reconnaissance of a number of places and report on the best way of gaining access to the target. The accomplice agrees and makes all the reconnaissances and reports, and the principal then, without further communication, selects a target and commits the crime. It seems clear that, whichever crime the principal commits, all the ingredients of the accomplice’s guilt are present. In each of these examples the accomplice knows exactly what is contemplated and the only thing he does not know is to which particular crime he will become an accessory when it is committed. His guilt springs from the fact that he contemplates the commission of one (or more) of a number of crimes by the principal and he intentionally lends his assistance in order that such a crime will be committed. In other words, he knows that the principal is committing or about to commit one of a number of specified illegal acts and with that knowledge he helps him to do so.

        

The situation has something in common with that of two persons who agree to rob a bank on the understanding, either express or implied from conduct (such as the carrying of a loaded gun by one person with the knowledge of the other), that violence may be resorted to. The accomplice knows, not that the principal will shoot the cashier, but that he may do so, and if the principal does shoot him, the accomplice will be guilty of murder. A [*1375] different case is where the accomplice has only offence A in contemplation and the principal commits offence B. Here the accomplice, although morally culpable (and perhaps guilty of conspiring to commit offence A), is not guilty of aiding and abetting offence B. The principle with which we are dealing does not seem to us to provide a warrant, on the basis of combating lawlessness generally, for convicting an alleged accomplice of any offence which, helped by his preliminary acts, a principal may commit. The relevant crime must be within the contemplation of the accomplice and only exceptionally would evidence be found to support the allegation that the accomplice had given the principal a completely blank cheque.

        

Interesting hypothetical problems can be posed if, for example, one person supplies to another house-breaking implements or weapons which are used - and perhaps used repeatedly - by the person supplied or by a third person, either immediately or months or years later. Such questions must we think, be solved by asking whether the crime actually committed is fairly described as the crime or one of a number of crimes within the contemplation of the accomplice. They are typical of the kind of problem which may be encountered in the application of any principle of the common law which, while requiring to be soundly based, can only proceed from one instance to another. But those questions do not arise in the present case.

        

The facts found here show that the appellant, as a member of an organisation which habitually perpetrates sectarian acts of violence with firearms and explosives, must, as soon as he was briefed for his role, have contemplated the bombing of the Crosskeys Inn as not the only possibility but one of the most obvious possibilities among the jobs which the principals were likely to be undertaking and in the commission of which he was intentionally assisting. He was therefore in just the same situation, so far as guilty knowledge is concerned, as a man who had been given a list of jobs and told that one of them would be carried out. And so he is guilty of the offence alleged against him in count 1.

        

So far as count 2 is concerned, the situation of the appellant and the reasoning which governs it are precisely analogous to the situation and reasoning in relation to count 1. He must have known that materials of offence were, with the knowledge of the principals (or one or more of them), in their possession and control with the intention alleged in the indictment and that an explosive substance was one of the most obviously likely of those materials. And the appellant was intentionally assisting the principals to commit the substantive crime charged under section 3 (b). Therefore he is guilty on count 2 also. Accordingly, the appeal against conviction will be dismissed on both counts.

 

Appeal dismissed.