R v Clarkson; R v Carroll; R v Dodd  1 WLR 1402
Presence without participation during rape and aiding and abetting
The defendants were drinking when they heard sounds indicating that a woman was being raped. They entered the room where the sounds came from. Despite their suspicions being confirmed, the defendants just stood there and did nothing (there was no evidence of their direct physical involvement) while the rapes were committed. It was possible that the defendants had an intention to or actually encouraged the rapes. The defendants were convicted of aiding and abetting the commission of three rapes. They appealed.
The defendants argued that the judge-advocate failed to appropriately direct the court that it was for the prosecution to prove by inference that the defendants intended to or actually encouraged the rapes. They claimed that the directions given left space for the court to think that the defendants could be found guilty even if the court was not sure the inferences evidenced an intention to encourage or actual encouragement.
The Courts-Martial Appeal Court held that in order to convict of aiding and abetting, it is not sufficient to show that the defendants were present during the commission of the principal offences. The prosecution also had to prove that the defendants actually encouraged the offence (i.e. it is not even to prove that they intended to encourage the offence). In the present case, the evidence only proved that the defendants were continuingly and deliberately present, but this was not enough to conclude that, by their presence, they actually encouraged the rapes. Consequently, the convictions had to be quashed.