Blakely and Sutton v DPP [1991] Crim LR 763 examined the mens rea (mental element) required for the offence of procuring. The central premise established was that the mens rea of procuring entails both the intention to perform the act that significantly contributed to the commission of the principal offence and actual knowledge of the risk that the principal offence would be committed as a result.
Blakely was having an affair with X. During an encounter at a pub, X expressed his intention to go home to his wife. Blakely's friend, Sutton, suggested adding alcohol to X's tonic water to prevent him from drinking and driving. However, X left before they could convey this advice, and X was subsequently found to be over the legal alcohol limit when driving. Both Blakely and Sutton were charged with procuring the offence.
The trial judge instructed the jury to convict if Blakely and Sutton were reckless as to whether X would commit the offence. They were convicted of procuring the offence on the basis that they had been reckless, following the definition of recklessness in R v Caldwell [1982]. The Divisional Court allowed the appeal, emphasising that the judge's direction could have led to a conviction based on the absence of any consideration by Blakely and Sutton regarding the risk that X might commit the offence.
The Court of Appeal eventually quashed their convictions, asserting that objective recklessness, as defined in Caldwell, was insufficient for liability. The court expressed the view that only intention should be considered as a basis for establishing liability in the context of procuring the offence. This decision clarified the requisite mental state for procuring, emphasising the importance of intention rather than relying solely on objective recklessness.
Justice McCullough, delivering the judgment, clarified that the mens rea of procuring requires both an intention to perform the act that significantly contributed to the commission of the principal offence and advertent recklessness. Advertent recklessness implies that the accused contemplated the risk that their act would or might bring about or assist in the commission of the principal offence but nonetheless proceeded to do it intentionally.
The judgment highlighted that inadvertent recklessness, where the accused gave no thought to the risk, is insufficient. The court also suggested that using the term "recklessness" in this context should be avoided to prevent confusion regarding the required mental state for procuring.
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