R v Millward [1994] Crim LR 527

Procurement - Causing death by reckless driving; whether accessory could be liable where principal lacked mens rea


H, employed by B, was driving a tractor when a trailer became detached from the tractor due to a poorly-maintained tow-hitch, hit a car and killed a passenger. B, the employer, was convicted of aiding, abetting, counselling or procuring H to cause death by reckless driving due to B’s instructions to H to drive the tractor with the poorly-maintained tow-hitch on the highway and which resulted in the death. H was acquitted. B appealed against his conviction.


The issue in question was whether B, charged as the accessory, could be liable where the principal, H, lacked mens rea. B claimed that the procurer cannot be convicted after the principal had been acquitted, and that the word “reckless” had to be read as a requirement for a mental element into the offence’s actus reus , and the acquittal implied this was therefore not committed.


An accessory can be liable where the principal commits the actus reus of the offence, even if the principal lacks the necessary mens rea to be convicted himself. Procuring does not require a joint intention between accessory and principal. In this case the actus reus was the taking of the vehicle in its defective condition on the road so as to cause the death, which was procured by B. The appeal was dismissed. Today, under section 2A(1) of the Road Traffic Act 1988 it is expressly provided that the new offence of dangerous driving is committed where it is obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous; therefore where such a driver is not, and could not be expected to be, aware of the defects, he could not commit the actus reus of the offence and procurement of the offence would not be possible.