R v Clarkson; R v Carroll; R v Dodd [1971] 1 WLR 1402
Presence without participation during rape and aiding and abetting
Facts
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.
Issues
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.
Decision/Outcome
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.
Updated 20 March 2026
This article accurately summarises the decision in R v Clarkson; R v Carroll; R v Dodd [1971] 1 WLR 1402. The core legal principle — that mere presence at the scene of an offence is insufficient to establish aiding and abetting, and that the prosecution must prove actual encouragement — remains good law and continues to be cited in English and Welsh courts.
Readers should be aware of subsequent case law that has refined this area. In R v Bryce [2004] EWCA Crim 1231, the Court of Appeal confirmed that encouragement need not be communicated to the principal offender, provided it in fact assisted or encouraged the commission of the offence. The Supreme Court’s decision in R v Jogee; Ruddock v The Queen [2016] UKSC 8 is also highly relevant: it fundamentally restated the law on joint enterprise and secondary liability, holding that foresight of a possible further offence is evidence of intent but not a substitute for it. While Jogee primarily addressed parasitic accessory liability rather than the specific question of presence alone, it reinforced and is consistent with the principle in Clarkson that mere presence and passive acquiescence are insufficient without proof of actual assistance or encouragement. Students reading this case should study it alongside Jogee for a complete picture of secondary liability.
