DPP V Armstrong

''DPP v Armstrong'' is a decision of the Queen's Bench Division of the English High Court of Justice dealing with incitement when the offence incited could be deemed "impossible" to complete, on the precise facts. It was ruled that this impossibility (and more specifically complete lack of means and/or intention by another person to complete the very specific offence incited) is irrelevant to the incitement itself and therefore a conviction is sustainable.

Facts

Armstrong approached a police informer seeking child pornography. The informer introduced Armstrong to a police officer acting undercover. Armstrong proceeded with this contact and made specific arrangements for a transaction which would be illegal.

He was arrested and charged with inciting the officer to distribute indecent photographs of children contrary to common law. In fact the police officer had no intention of providing child pornography.

Argument

The case was heard by a stipendiary magistrate where the defence argued that because Armstrong and the officer lacked a shared intention to commit an offence, Armstrong should be acquitted. He was referred to the cases of ''R v Shaw'' and ''R v Curr'' and ruled that on these authorities, the lack of an intention by the police officer to supply child pornography was fatal to the prosecution case, and acquitted. The prosecutor appealed.

Decision

Lord Justice Tuckey, having reviewed the common law and academic opinion, considered that neither implied a requirement to prove shared intention as contended by Armstrong. Turning to those two authorities (''Shaw'' and ''Curr''), he further stated that there was nothing in either to imply such a requirement. He ruled that:

The trial magistrate had two questions for the appeal:

#Was I correct to decide that the Respondent had not incited DC Tobin to distribute indecent material because enever had any intention of doing so?
#Was I correct in holding in law that the evidence of the police officer meant the offence was impossible to perform?

The appellate court found "no" as to both. Accordingly the court (the only words of the other judge were a standard concurrence: "I agree.") rejected the defence of impossibility and the magistrates' ruling was quashed.

The offence of incitement simply entails the defendant incite another to commit a criminal offence, whether or not that offence is committed. It is not necessary that the person incited should have the mens rea for the offence incited.''Card, Cross and Jones: Criminal Law'' 16th Ed., Prof. Richard Card (ed.), Reed Elsevier (printed by CPI Bath, Bath, UK), 2004. at 17.3 (p667)

Reconciliation of precedents

Professor John Smith noted in commentary to the ''DPP v Armstrong'' case that the distinguishing of the troublesome ruling in ''R v Shaw'' 994– effectively shunning it – was to some logicians unconvincing but ingeniously pointed out the flaw in the indictment there which was a welcome way of largely overruling ''R v Shaw'', a decision of court of higher official rank but similar bench of eminent judges, considered of binding, not persuasive precedent. It has limited ''Shaw'' to its peculiar indictment's wording, which hinged on its poor construction in relation to an alleged theft incitement.

The judgment noted and contrasted itself to the approved suggested state illegality scenario of framing a "young man" by a detection-target-seeking police officer and an agent provocateur, as envisaged by Lord Diplock in ''R v Sang'' in the highest court twenty years earlier.Judgment, eight paragraphs from its end, citing ''R v Sang'' 979UKHL 3, (1979) 69 Cr App R 282 9793 WLR 263, 980AC 402

References

{{DEFAULTSORT:Armstrong
English criminal case law
1999 in United Kingdom case law
High Court of Justice cases
Entrapment