1 Q.B.

QUEEN'S BENCH DIVISION.

" S u n d a y . " The requirement of closure makes it plain t h a t the

place is something which is fixed, a place where business is
carried on, and not a place where a casual sale happens to be
effected. I think the ordinary m a n could not make sense of
a requirement of the law t h a t h e was required in the words of
this information to close a place being a p a r t of Peterhouse
Crescent outside the dwelling-house No. 106. I think it is very
undesirable t h a t this court should strain to give meanings to a
section of the Act which would produce a result incomprehensible
to the traders who have to deal with it. The result is, I think,
t h a t it m u s t now be taken as definitely decided in these courts
t h a t a mobile van is not a shop within the meaning of the Shops
Act, 1950, and if Parliament desires to make it so it m u s t intro
duce new legislation for t h a t purpose.
Appeal

1958
STONE

Devlin J

dismissed.

Solicitors: Berrymans
for 0. 0. Lightfoot,
Ipswich;
Field,
Roscoe & Go. for Gotelee & Goldsmith,
Ipswich.
J. D . P .

NATIONAL COAL B O A E D v. G A M B L E .

1958
July 3, 4,
. 2 5 .
Criminal LawAiding and abettingMens teaCoal Board official
allowing overladen lorry to leave collieryLorry owner convicted of Qjd Goddard
offenceWhether board guilty of aidinq and abettinq.
siade and
"

On October 3, 1957, M., the servant of a firm of hauliers, took

his lorry to a colliery of the National Coal Board where it was filled
with coal from a hopper and was then taken to a weighbridge, where
the weighbridge operator H., who was employed by the board,
weighed the lorry and its load and told M. that the load was nearly
4 tons overweight. M., saying that he would risk taking the over
load, took the weighbridge ticket from H. and left the colliery
premises. He was subsequently stopped by the police and his firm
were later convicted of contravening the Motor Vehicles (Construc
tion and Use) Regulations, 1955. It appeared that the hauliers
were collecting the coal for carriage to a power station of an elec
tricity authority, to whom the Coal Board were bound by contract
to supply a bulk quantity of coal. The board were charged with
aiding and abetting the firm in the commission of an offence:
Held (Slade J . dissenting), that the crime of aiding and
abetting was committed on proof of a positive act of assistance
voluntarily done, and a knowledge of the circumstances constituting
the offence, the question of motive was irrelevant; that the property
in the coal did not pass to the buyer until the coal was weighed and
the weighbridge ticket handed to M., and the completion of the sale

Devlin JJ.

12

QUEEN'S BENCH DIVISION.

1958

"~
QOA
BOARD
v.
GAMBLE.

[1959]

of the coal at that moment by H. as agent for the board, with the
knowledge that an offence was going to be committed constituted the
board aiders and abettors.
Ackroyds Air Travel Ltd. v. Director of Public Prosecutions
[1950] 1 All E.R. 933 applied.
p g r gj a ( j e j . The prosecution must prove that the act or
omission on which they rely as constituting the alleged aiding and
abetting was done or made with a view to assisting or encouraging
the principal offender to commit the offence or, in other words, with
the motive of endorsing the commission of the offence.
CASE STATED by Derby justices sitting a t Chapel-en-le-Frith.
At a court of summary jurisdiction an information dated
November 29, 1957, was preferred by the prosecutor, William
Edward Gamble, under section 35 of the Magistrates' Courts Act,
1952, against the National Coal Board t h a t they, on October 3,
1957, at Peak Forest, Derby, unlawfully did aid, abet, counsel
and procure H . Wilson & Sons (Mosboro) L t d . to commit a certain
offence, t h a t is to say, to unlawfully use a heavy motor-lorry with
six wheels on Chesterfield Eoad, the sum of the weight trans
mitted to the road surface by all the wheels of which lorry
exceeded 20 tons, contrary to regulations 68 and 104 of the Motor
Vehicles (Construction and Use) Eegulations, 1955. The informa
tion was heard by the justices on J a n u a r y 30, 1958, when the
court convicted the board and fined t h e m 3 .
By paragraph 4 of the case the justices found the following
facts:
(a) On October 3, 1957, a registered motor-lorry with six
wheels was stopped by the police on Chesterfield Road. The
gross weight of the lorry and its load was found to be 23 tons
11 cwts. The lorry was driven by one Mallender, the servant or
agent of H . Wilson & Sons (Mosboro) Ltd., who owned the lorry.
This firm were convicted and fined under regulations 68 and 104
of the regulations of 1955.
(b) The lorry was loaded at the board's premises at Cotes
Park Colliery, Somercotes.
(c) The method of loading was as follows: Mallender took his
empty vehicle to a hopper at the board's premises which was
operated by a servant of the board. Mallender told the hopper
operator when to stop loading.
(d) Mallender then took his lorry to the board's weighbridge
a t the premises to weigh the load.
(e) The weighbridge operator, one H a s l a m , employed by. the
board, weighed the lorry and its load and informed Mallender that
his load was nearly 4 tons overweight.

1 Q.B.

QUEEN'S BENCH DIVISION.

(f) Mallender was asked by Haslam whether he intended

taking the load and Mallender, after joking about his overload,
said that he would risk it and took the weighbridge ticket from
Haslam and left the premises.
(g) The weighbridge ticket which was produced by Mallender
showed the gross weight of the lorry and its load was 23 tons
18 cwts., the tare weight of the lorry was 8 tons 6 cwts. and the
net weight of the coal was 15 tons 12 cwts.
(h) The weighbridge ticket was addressed by the board to the
Central Electricity Authority at Carrington.
(i) On the door of the weighbridge ticket office there was a
large notice displayed to the effect that owners and drivers of
vehicles were warned that the National Coal Board were not
responsible for the use of any vehicle on the road which was
loaded beyond its authorized capacity.
(j) Off-loading facilities were provided by the colliery and
Mallender knew well that he could have off-loaded into another
vehicle if he so desired, and that he had done this on previous
occasions, but on this occasion he had a new lorry, with which he
thought he could drive with an overload without risk.
(k) It was not the practice for the board's servants to give
orders of any sort to drivers but they were requested to act in
accordance with accepted practice at the colliery in respect of
loading and weighing vehicles.
(1) The justices accepted Mallender's evidence that if he had
not received his weighbridge ticket he did not think he could have
gone off the colliery, but that the Coal Board had no control over
his actions. He believed he could do what he liked as regards
loading and what he carried on his vehicle and that, if he had not
been given a ticket, there would have been trouble, as he knew
that he could demand a weighbridge ticket " on rule."
(m) The board did not call evidence and submitted that there
was no case to answer.
On the part of the board it was contended that they were
under a duty under section 21 of the Weights and Measures Act,
1889, to issue a weighbridge ticket to Mallender, and that if he
had left their premises without a ticket and had in due course
unloaded the lorry, they would have been guilty of an offence
under that Act. That the board had informed the driver that he
was overloaded and that, on his evidence, there would have been
trouble if Haslam had not issued a ticket. That the board had
no direct control over the driver, and that when the handing over
of the ticket was otherwise explicable an intention to aid and

1-3

1958
NATIONAL
COAL

_
GAMBLE.

14

QUEEN'S BENCH DIVISION.

1958

NATIONAL
COAL

.
GAMBLE.

[1959]

abet in the commission of an offence must be affirmatively proved,

* that the facts, together with the notice displayed by the
board, indicated that the board's sole intention was to carry out
an administrative act which they were under a legal duty to
perform under the Weights and Measures Act, 1889, and that no
intention to aid, abet, counsel or procure the commission of the
offence had been proved.
On behalf of the prosecutor it was contended that the substan
tive offence against the regulations of 1955 was one of absolute
liability, and that aiding and abetting the commission of an
offence against the regulations was also one of absolute liability.
That it was only necessary to prove that the board's servants
had full knowledge of the facts which constituted the substan
tive offence and did acts which assisted the commission of that
offence.
The justices drew the following inferences:
1. From the handing over of the weighbridge ticket by Haslam
to Mallender the board were bound by contract to supply a certain
bulk quantity of coal to the Central Electricity Authority at
Carrington Power Station.
2. From the evidence of Mallender that he could have off
loaded some of the coal into another vehicle and then reweighed
his lorry, that the coal taken from the hopper into Mallender's
lorry remained the property of the board until it had been weighed
and offered by Haslam and accepted by Mallender as part of the
bulk coal sold to the electricity authority, and until the weigh
bridge ticket had been handed over in token.
3. From the form in which the weighbridge ticket was drawn,
that it was a delivery note and was the authority to H. Wilson
& Sons (Mosboro) Ltd. to take and deliver the amount of coal
stated therein to the electricity authority.
The justices were of opinion that Haslam, on behalf of the
board, could and ought to have refused to hand over to Mallender
the ownership of 15 tons 12 cwts. of coal, knowing that Mallender
proposed to use this coal in such a way as to break the law, and
that the handing over of the weighbridge ticket in these circum
stances constituted the offence of aiding and abetting. The board
appealed.
DU

John Thompson Q.C. and Denis Cowley for the National Coal
Board. It is said that this is a matter of absolute liability and
that the board, by not retaining the coal on their premises, were
constituted aiders and abettors. If this is right it is an extension

1 Q.B.

15

QUEEN'S BENCH DIVISION.

of the principle governing the aiding and abetting of a crime.

Haslam was bound under the Weights and Measures Act, 1889,
s. 21, to issue a weighbridge ticket to Mallender. The board's
servant who put their coal on the lorry had neither the knowledge
that the load was overweight nor, if it turned out to be overweight, that Mallender would refuse to unload it. Unless there
was knowledge plus the motive to further the crime the board
cannot be held guilty of an offence.
[DEVLIN J. Up to the moment that the property passes the
hoard can order the coal to be unloaded.]
Haslam could not order Mallender to unload without being in
breach of contract. Merely to sell coal did not involve including
in the contract that no lorry shall carry an overweight. [Eeference was made to the Sale of Goods Act, 1893, ss. 17 and 18,
rules 1 and 2.] The board could not be required to see that
Mallender did not leave the premises overloaded. That could
only be so in a case of master and servant. Once the lorry is
loaded rule 5 (2) of section 18 of the Act of 1893 applies, and
there is no power to detain the driver. If the property has not
passed, the board is entitled to stop the lorry from leaving the
premises and to demand back their property. The question is:
Is the board obliged to do so because, if it does not do so, it will
be held to have aided and abetted?
For the board to be guilty of aiding and abetting there must
be some coincidence of purpose. In Beg. v. Coney,1 in which
the defendants were charged with aiding and abetting an illegal
prize fight, it was held that the mere voluntary presence of
persons at a prize fight did not necessarily make them guilty of
aiding and abetting. Hawkins J. said 2 that to constitute an
aider and abettor, some active steps must be taken by word or
action, with the intent to instigate the principal. Encourage
ment did not necessarily amount to aiding and abetting. Only
if a person encouraged intentionally by expressions intended to
signify approval did he aid and abet. Here Haslam did not
intend to signify his approval. In Bex v. Lomas 3 it was made
clear that mere knowledge of an intended crime was not sufficient
to constitute a person an accessory. [Eeference was made to
Beg. v. Bullock.4-] There must, in some degree, be a joining in
the enterprise; it is not sufficient for a person merely to be aware
i (1882) 51 L.J.M.C. 66.
> Ibid.' 78.
a (1913) 9 Cr.App.B. 220;
T.L.B. 125.

* [1955] 1 W.L.E. 1; [1955] 1

All E . E . 15.
30

1958

NATIONAL

COAL
.
G-AMBLB.

16

QUEEN'S BENCH DIVISION.

1958
NATIONAL
COAL
BOARD

v.
(TAMBLE,

[1959]

t h a t an offence is going to be committed, even though it m a y be

within his power to prevent it. The reasons given in the opinion
0 f the justices do not sustain the conclusion reached.
Piers Ashworth
for the prosecutor.
There was sufficient
evidence before the justices to justify a conviction. The property
in the coal did not pass until after the giving of the weight ticket,
even applying the rules in section 18 of the Sale of Goods Act,
1893.
For under those rules the coal has to be in a deliver
able state before the property in it can pass. Section 62 (4) of
the Act of 1893 says t h a t goods are in a deliverable state when
they are in such a state t h a t the buyer is bound to take delivery
of them. Section 21 of the Weights and Measures Act, 1889,
requires a seller of a consignment of more than 2 cwt. of coal
to deliver a ticket or note in accordance with t h e Act. If t h e
seller attempted delivery without such a ticket, the buyer could
refuse to accept the goods without committing a breach of con
tract. The goods were not in a deliverable state until there was
a weight ticket in existence. The weight ticket was a condition
precedent to the passing of the property. The goods were uncon
ditionally appropriated to the contract when they had been
weighed and there was some act of assent by the Coal Board
thereafter.
There is no dispute that the lorry went on the road over
loaded, t h a t it was known to be overloaded, and t h a t the Coal
Board's servant handed over the weight ticket to the driver, thus
transferring the property in the coal to the electricity authority.
That was more than enough to constitute the offence of aiding
and abetting. The requirement imposed in Ackroyds Air Travel
Ltd. v. Director of Public Prosecutions 5 t h a t a person convicted
as an aider and abettor m u s t know of all the circumstances
constituting the offence, it being immaterial whether he knew
there was an offence, has been fulfilled. I t has been contended
that the sole purpose of the giving of the ticket was the perform
ance of a statutory duty; there was no duty to deliver a ticket
in 'the case of an overloaded lorry. The ticket also acted as an
authority to the driver to leave the premises, and thereby facili
tated the driver's exit and facilitated the offence. Allowing the
driver to pass out of the premises was not simply a passive act;
it was a positive act of aiding the offence. To p u t it in another
way, if the driver left with the coal before the issue of a weight
ticket, he might be guilty of larceny.
s [1950] 1 All E.B. 933, 936.

1 Q.B.

17

QUEEN'S BENCH DIVISION.

C.J. The delivery was not complete until

the issue of the ticket. Under the contract the Coal Board were
not bound to deliver any particular quantity of coal. If, on
filling up the lorry with coal, they find they have loaded more
than 20 tons and yet issue a ticket, you say that is an
encouragement. ]
Yes, and in any event, if the Coal Board adopt a system of
loading lorries, so that they cannot ascertain the weight of the
coal until after loading, it is their duty to off-load if the permitted
weight is exceeded. The adoption of a system by which they
risk overloading makes them guilty of aiding, if in fact they have
overloaded. In Churchill v. Norris 6 the driver of a lorry, judging
the weight of timber by its size, thought that he had loaded a
permitted quantity; in fact he had loaded an excessive quantity.
His employer was found guilty of permitting a lorry to be driven
when overloaded. He had taken the risk of overloading. I t is
true that the present case can be distinguished from Churchill
v. Norris 6 because there the offence was one of permitting, and
the employer was the owner of the offending lorry, but, even so,
the same principle applies. In Provincial Motor Cab Co. Ltd. v.
Dunning 7 a regulation made by the Board of Trade provided
that whenever during the hours of darkness a vehicle was used
on the highway a lamp should be fitted. The defendant company
employed a foreman to ensure that its cabs complied with the
regulation, but nevertheless it was convicted of aiding one of its
drivers when he contravened the regulation. The company
adopted a careless system of supervising its cabs.
[LORD GODDARD C.J. If the lorry had been owned by the
Coal Board, the case might be the same.]
Even though the defendant company in that case were the
owners of the cab, the same principle applies. The Coal Board
loaded the lorry, and the Coal Board should have unloaded the
excess quantity of coal.
Thompson Q.C. in reply. The justices failed to distinguish
between doing something to assist and doing something which
assists. The justices must look at the mind of the person
alleged to aid the offence, and determine what the purpose of
the alleged aiding was. It is not enough to say that the giving
of the weight ticket completed the passing of the property and
facilitated the exit of the driver. Was the giving of the ticket
referable to the purpose of promoting the commission of the
[LORD GODDARD

(1938) 158 L.T. 255.

1 Q.B. 1959.

' [1909] 2 K.B. 599.

2

1958

NATIONAL

COAL
.
GAMBLB.

18

QUEEN'S BENCH DIVISION.

1958

NATIONAL
COAL
BOARD
Vi

[1959]

offence, or was it given because of a belief that its issue was part
^ a contractual obligation? The issue of the ticket was so
equivocal that it does not necessarily lead to an inference of
...

,,

~.

assisting the offence.

GAMBLE.

Cur. adv.

vult.

July 25. The following judgments were read.

LORD GODDABD C.J. stated the facts and continued. In
Ackroyds Air Travel, Ltd. v. Director of Public Prosecutions,1 I
stated the law with regard to aiding and abetting in this way:
" . . . a person could only be convicted . . . as an aider and
" abettor if he knew all the circumstances which constituted the
" offence. Whether he realized that those circumstances con" stituted an offence was immaterial. If he knew all the
" circumstances and those circumstances constituted the offence
" . . . that was enough to convict him of being an aider and
" a b e t t o r . " Humphreys J. in the same case said 2 : " . . . it
" must be shown that the unlawful act has been committed, and,
" therefore, that the offence has been committed, and, further,
" that the person charged as an aider and abettor was aware
" of the facts sufficiently to enable him to know that the act
" was unlawful."
To enable one to decide whether the board were properly con
victed as aiders and abettors it seems to me necessary to decide
in the first instance when the property in the coal had passed.
This was a sale of unascertained goods and the property in those
goods passes on a sale when the parties intend it should pass,
and rules are set out in section 17 of the Sale of Goods Act, 1893,
for enabling the court to determine when property passes subject,
of course, to the intention of the buyer and seller. In my opinion
it is quite clear that neither side could have intended the property
in the coal to pass when it was put from the hopper into the
lorry. The quantity would have to be ascertained in order to
enable the price to be ascertained. The lorry is then taken to
the weighbridge to be weighed and in my opinion no sale takes
place whereby the property is passed until the weighing is com
pleted and assented to by the buyer, and this is shown by the
handing to him and the acceptance by him of a weighbridge
ticket. In my opinion, therefore, no property passed until the
weighbridge ticket was accepted by Mallender.
1

[1950] 1 All E.E. 933, 936.

Ibid.

1 Q.B.

QUEEN'S BENCH DIVISION.

19

1958
As soon as Haslam weighed the coal he knew it was overweight and called Mallender's attention to that fact. From NATIONAL
Mallender's answer he knew that Mallender intended to drive
COAL
the overweighted lorry on the highway and with that knowledge
.
he completed the sale and handed the weight ticket to Mallender
GAMBLE.
whose duty then was to give it to the purchasers, namely, the Lord Goddard
Central Electricity Authority. Haslam could, in my opinion, have
'
refused to allow the overweight amount of 3 tons 18 cwts. to
leave the colliery. No specific amount had been asked for.
The board were no doubt bound to deliver coal to the electricity
authority under their contract, but were not bound to deliver
any particular amount of coal at any particular moment.
The justices drew the inference, and it was not disputed,
that the board were bound by contract to supply a bulk quantity
of coal to the authority. I t was urged on behalf of the board
that they had no right to require Mallender to unload the coal
or rather the excess, but with this I cannot agree. For the
reasons I have already given the property had not passed until
the delivery was completed, and it could only be completed by
the weighing and the delivery and acceptance of the ticket.
Suppose a purchaser took his lorry to the hopper and asked
for 10 tons of coal or the Coal Board had offered to supply him
with 10 tons of coal. Nobody would know how much the
hopper delivered until it had been weighed. If it was found
that more than 10 tons had been put into the lorry it seems to
me beyond question that the board could insist upon the excess
being taken out. Here no specific amount was asked for, but
the board, by their servant, knew that more had been put into
the lorry than could be lawfully carried on the road and with
that knowledge completed the sale.
In my opinion that
amounted to an aiding and abetting of the offence, as Haslam
knew Mallender was going there and then to drive the lorry on
the highway, in other words, a specific offence was contemplated.
In this connexion I would refer to Reg. v. Bullock,3 where
Rex v. Lomas * was distinguished. In so holding I do not think
an undue burden is placed on the Coal Board; if their weigh
bridge operators are instructed to refuse to give a weight ticket
to the driver of a lorry which with its load exceeds the permitted
maximum and the latter nevertheless drives away with the load,
the board will not have aided or abetted the offence. Compliance
3

[1955] 1 W.L.E. 1; [1955] 1 All

E.E. 15.

* (1913) 9 Cr.App.B. 220; 30

T.L.E. 125.

20

QUEEN'S BENCH DIVISION.

[1959]

19

58

vsdth the requirements of the Weights and Measures Act, 1889,

be made by posting the ticket to the purchaser. The Coal
Board obviously desire to maintain that the overloading of
.
customers' lorries is no concern of theirs, but in that I cannot
GAMBLE.
agree. The object of the legislation is to protect the roads of
Lord Goddard. the country from damage to which the board would directly
1-1
contribute if they allow excessive weight to be taken from their
premises. In my opinion the justices came to a right decision
in point of law and I would dismiss this appeal.
I will now ask Devlin J. to read his judgment and then I
will read Slade J. 's dissenting judgment.
NATIONAL
COAL

can

DEVLIN J. A person who supplies the instrument for a crime

or anything essential to its commission aids in the commission
of it; and if he does so knowingly and with intent to aid, he abets
it as well and is therefore guilty of aiding and abetting. I use
the word " supplies " to comprehend giving, lending, selling or
any other transfer of the right of property. In a sense a man
who gives up to a criminal a weapon which the latter has a right
to demand from him aids in the commission of the crime as
much as if he sold or lent the article. But this has never been
held to be aiding in law: see Rex v. Lomas" and Reg. v.
Bulloch.6 The reason, I think, is that in the former case there
is in law a positive act and in the latter only a negative one. In
the transfer of property there must be either a physical delivery
or a positive act of assent to a taking. But a man who hands
over to another his own property on demand, although he may
physically be performing a positive act, in law is only refraining
from detinue. Thus in law the former act is one of assistance
voluntarily given and the latter is only a failure to prevent the
commission of the crime by means of a forcible detention, which
would not even be justified except in the case of felony. Another
way of putting the point is to say that aiding and abetting is a
crime that requires proof of mens rea, that is to say, of intention
to aid as well as of knowledge of the circumstances, and that
proof of the intent involves proof of a positive act of assistance
voluntarily done.
These considerations make it necessary to determine at what
point the property in the coal passed from the board and what
the board's state of knowledge was at that time. If the property
had passed before the board knew of the proposed crime, there

9 Cr.App.E. 220.

[1955] 1 W.L.E. 1.

1 Q.B.

QUEEN'S BENCH DIVISION.

21

was nothing they could legally do to prevent the driver of the

1958
lorry from taking the overloaded lorry out onto the road. If it NATIONAL
had not, then they sold the coal with knowledge that an offence
COAL
was going to be committed.
_.
The board called no evidence, so that a good deal was left to GAMBLB.
inference; but the conclusions of fact reached by the magistrates
Devlin J.
have not been seriously disputed. The board had an instalment
contract with the Central Electricity Authority for a supply of
coal to be delivered at the colliery into lorries sent by a carrier on
behalf of the authority. The quantity of each instalment was not
prescribed and the inference is that the board were to deliver and
the carrier to receive as much as each lorry could carry (which
means, of course, as much as it could legally and safely carry)
until the contract quantity was exhausted. The method of
delivery was for the lorry to be loaded by hopper and then to
proceed to a weighbridge; there were off-loading facilities if the
load was found to be overweight. At the weighbridge a ticket
was issued in accordance with the Weights and Measures Act,
1889, s. 21, which provides that where any quantity of coal
exceeding 2 cwt. is delivered by means of any vehicle to any
purchaser, the seller of the coal shall deliver or send by post to
the purchaser or his servant, before any part of the coal is
unloaded, a ticket or note in the prescribed form.
On this occasion the carrier's lorry was driven by one
Mallender and its maximum legal load (after allowing for the
tare weight) was 11 tons 12 cwt. It was loaded at the hopper,
Mallender telling the operator when to stop. Mallender then
took the lorry to the weighbridge. The weighbridge operator,
one Haslam, weighed the lorry and its load and informed
Mallender that his load was nearly 4 tons overweight. Haslam
asked Mallender whether he intended taking .the load and
Mallender said he would risk it; he then took the weighbridge
ticket from Haslam and left the colliery.
In these circumstances, prima facie, the property in the coal
passed on delivery to the carrier in accordance with rule 5 of
section 18 of the Sale of Goods Act, 1893. If the delivery was
complete after loading and before weighing, the board had not
until after delivery any knowledge that an offence had been com
mitted. But where weighing is necessary for the purpose of
the contract, as, for example, in order to ascertain the price of
an instalment, the property does not pass until the weight has

22

1958
NATIONAL
COAL

GAMBLE.'
Devlin J.

QUEEN'S BENCH DIVISION.

[1959]

been agreed. I n Simmons v . Swift7 the parties agreed to buy

& s e u " ^e bark stacked at Eedbrook at 9 5s. per t o n . " I t
W a s held t h a t the property did not pass until t h e bark had been
weighed and the price ascertained. Bayley J . s a i d 8 t h a t the
concurrence of the seller in the act of weighing was necessary and
he might insist on keeping possession until the bark had been
weighed.
an

I t was contended on behalf of the board t h a t H a s l a m had no

option after weighing but to issue the ticket for t h e amount t h e n
in t h e lorry. I think t h a t this contention is unsound. I n the
circumstances of this case the loading m u s t be taken as subject
to adjustment; otherwise, if the contract were for a limited
amount, t h e seller might make an over-delivery or an under
delivery which could not thereafter be rectified and the carrier
might be contractually compelled to carry away a load in excess
of t h a t legally permitted. I think t h a t the delivery of t h e coal
was not completed until after the ascertained weight had been
assented to and some act was done signifying assent and passing
the property. The property passed when H a s l a m asked Mallender
whether h e intended to take the load and Mallender said he
would risk it and when t h e m u t u a l assent was, as it were, sealed
by t h e delivery and acceptance of the weighbridge ticket.
H a s l a m could therefore after he knew of the overload have
refused to transfer the property in the coal.
This is the conclusion to which the justices came.
Mr.
Thompson submits on behalf of the board t h a t it does not justify
a verdict of guilty of aiding and abetting. H e submits, first, t h a t
even if knowledge of the illegal purpose had been acquired before
delivery began, it would not be sufficient for the verdict; and
secondly, t h a t if he is wrong about that, the knowledge was
acquired too late, and the board was not guilty of aiding and
abetting simply because H a s l a m failed to stop t h e process of
delivery after it had been initiated.
On his first point Mr. Thompson submits t h a t the furnishing
of an article essential to the crime with knowledge of t h e use to
which it is to be p u t does not of itself constitute aiding and
abetting; there m u s t be proved in addition a purpose or motive of
t h e defendant to further the crime or encourage the criminal.
Otherwise, he submits, there is no mens rea.
I have already said t h a t in my judgment there m u s t be proof
of intent to aid. I would agree t h a t proof t h a t t h e article was
i (1826) 5 B. & C. 857.

Ibid. 863.

1 Q.B.

23

QUEEN'S BENCH DIVISION.

knowingly supplied is not conclusive evidence of intent to aid.

Reg. v . Fretwell 9 is authority for t h a t . Rex v . Steane,10 in which
the defendant was charged with having acted during the war with
intent to assist the enemy contrary to the Defence Eegulations
then in force, makes the same point. B u t prima facieand Rex
v. Steane makes this clear alsoa m a n is presumed to intend the
natural and probable consequences of his acts, and t h e eonsequence of supplying essential material is t h a t assistance is given
to the criminal. I t is always open to the defendant, as in Rex
v . Steane, to give evidence of his real intention. B u t in this
case t h e defence called no evidence. The prima facie presump
tion is therefore enough to justify t h e verdict, unless it is t h e law
t h a t some other m e n t a l element besides intent is necessary to
the offence.
This is what Mr. Thompson argues, and he describes t h e addi
tional element as the purpose or motive of encouraging the crime.
No doubt evidence of an interest in t h e crime or of an express
purpose to assist it will greatly strengthen t h e case for t h e
prosecution. B u t an indifference to the result of t h e crime does
not of itself negative abetting. If one m a n deliberately sells to
another a gun to be used for murdering a third, h e may be
indifferent about whether the third m a n lives or dies and interested
only in t h e cash profit to be made out of t h e sale, b u t he can
still be an aider and abettor. To hold otherwise would be to
negative the rule t h a t m e n s rea is a m a t t e r of intent only and
does not depend on desire or motive.
The authorities, I think, support this conclusion, though none
has been cited to us in which t h e point h a s been specifically
argued and decided. The Lord Chief Justice has quoted t h e
s t a t e m e n t of t h e law in Achroyds Air Travel Ltd. v . Director of
Public Prosecutions " which is consistent with the results reached
in the earlier cases of Cook v . Stockwell12
and Cafferata v.
Wilson13
and with t h e later case of Reg. v . Bullock.14,
The
same principle has been applied in civil cases where t h e seller
has sued upon a contract for the supply of goods which h e knew
were t o be used for an illegal purpose. I n some of t h e authorities
there is a suggestion t h a t he could recover on t h e contract unless
it appeared t h a t in addition to knowledge of the purpose he had
(1862) Leigh & Cave 161.
i [1947] K.B. 997; 63 T.L.K. 403;
[1947] 1 All E.E. 813.
" [1950] 1 All E.E. 933.

(1915) 84 L.J.Q.B. 2187.

" (1936) 53 T.L.E. 34; [1936] 3 All
E.E. 149.
" [1955] 1 W.L.E. 1.

1958

NATIONAL
COAL
0-

GAMBLE.
Devlin J.

24

QUEEN'S BENCH DIVISION.

1958

NATIONAL
COAL
Vm

GAMBLE.

Devlin j .

[1959]

an interest in the venture and looked for payment to the proceeds of the crime. But in Pearce v. Brooks 15 Pollock C.B.
stated the law as follows 16 : " I have always considered it as
" settled law that any person who contributes to the performance
"of an illegal act by supplying a thing with the knowledge that
" i t is going to be used for that purpose, cannot recover the
" price of the thing so supplied. If, to create that incapacity,
" it was ever considered necessary that the price should be
" bargained or expected to be paid out of the fruits of the
" illegal act (which I do not stop to examine), that proposition
" has been overruled by the cases I have referred to, and has
" now ceased to be law."
The case chiefly relied on by Mr. Thompson was Reg. v.
Coney." In that case the defendants were charged with aiding
and abetting an illegal prize fight at which they had been present.
The judgments all refer to " encouragement," but it would be
wrong to conclude from that that proof of encouragement is
necessary to every form of aiding and abetting. Presence on the
scene of the crime without encouragement or assistance is no aid
to the criminal; the supply of essential material is. Moreover,
the decision makes it clear that encouragement can be inferred
from mere presence. Cave J., who gave the leading judgment,
said of the summing-up 1S : " I t may mean either that mere
" presence unexplained is evidence of encouragement, and so of
" guilt, or that mere presence unexplained is conclusive proof of
" encouragement, and so of guilt. If the former is the correct
" meaning I concur in the law so laid down; if the latter, I am
" unable to do so." This dictum seems to me to support the
view I have expressed. If voluntary presence is prima facie
evidence of encouragement and therefore of aiding and abetting,
it appears to me to be a fortiori that the intentional supply of
an essential article must be prima facie evidence of aiding and
abetting.
As to Mr. Thompson's alternative point, I have already
expressed the view that the facts show an act of assent made by
Haslam after knowledge of the proposed illegality and without
which the property would not have passed. If some positive act
to complete delivery is committed after knowledge of the
illegality, the position in law must, I think, be just the same as
if the knowledge had been obtained before the delivery had been
" (1866) L.E. 1 Ex. 213.
" Ibid. 217.

" (1882) 8 Q.B.D. 534.

Ibid.

18

1 Q.B.

QUEEN'S BENCH DIVISION.

begun. Of course, it is quite likely that Haslam was confused

about the legal position and thought that he was not entitled to
withhold the weighbridge ticket. There is no mens rea if the
defendant is shown to have a genuine belief in the existence of
circumstances which, if true, would negative an intention to aid;
see Wilson v. Inyang.1* But this argument, which might have
been the most cogent available to the defence, cannot now be
relied upon, because Haslam was not called to give evidence about
what he thought or believed.
The fact that no evidence was called for the defence makes
this case a peculiar one. We were told that the board desired to
obtain a decision on principle which would enable them to regulate
their practice in the future. They therefore accepted respon
sibility for Haslam's act without going into any questions of
vicarious liability; and they called no evidence in order, we were
told, that the decision might be given on facts put against them
as strongly as might be. What they wished to establish was that
responsibility for overloaded lorries rested solely with the carrier
and that the sale and delivery of the coal could not, if that was
all that could be proved, involve them in a breach of the criminal
law. For the reasons I have given I think that the law cannot
be so stated and that the appeal should be dismissed.
SLADE J. (read by Lord Goddard C.J.). Before a person can
be convicted of aiding and abetting the commission of an offence
the prosecution must prove: (a) that he knew the essential
matters which constituted the offence (Johnson v. Youden,20
Ferguson v. Weaving 21) and (b) that with such knowledge he
assisted, or at least encouraged, the principal offender to commit
the offence.
Mere passive acquiescence is sufficient only, I think, where
the alleged aider and abettor has the power to control the offender
and is actually present when the offence is committed: for
example, the owner of a car sitting alongside his chauffeur when
the latter commits an offence.
In my judgment the words " assist " and " encourage " neces
sarily import motive, i.e., purpose or object. It is not sufficient
that the alleged abettor should be proved to have done some act,
or to have made some omission, without which the principal
i [1951] 2 K.B. 799; [1951] 2
T.L.B. 553; [1951] 2 All E . E . 237.
20
[1950] 1 K.B. 544; 66 T.L.R.
(Pt. 1)395; [1950] 1 All E.R. 300.

21 [1951] 1 K.B. 814; [1951] 1

T.L.R. 465; [1951] 1 All E.R. 412.

25

1958
NATIONAL
COAL

GAMBLE.

Devlin j .

26

QUEEN'S BENCH DIVISION.

1958

NATIONAL
COAL

_
GAMBLE.

siade J.

[1959]

offender could not have committed the offence; nor is it sufficient

^ a t s u c b- a c * o r omission had the effect of facilitating the commission of the offence or that it in fact operated on the mind of '
the principal offender so as to decide him to commit it. The
prosecution must prove that the act or omission upon which they
rely as constituting the alleged aiding and abetting was done or
made with a view to assisting or encouraging the principal offender
to commit the offence or, in other words, with the motive of
endorsing the commission of the offence.
The foregoing brings me to the facts found, the inferences
drawn and the opinions expressed by the magistrates. Mr.
Thompson, who appeared for the National Coal Board, invited the
court to identify the board with their servant Haslam and, if the
court thought Haslam had aided and abetted Mallender, the
lorry driver (who was not the servant of the board) to commit
the offence, to treat the board also as being answerable for
Haslam's offence. As I have reached the conclusion that there
was no evidence upon which the magistrates could find that
Haslam had aided and abetted Mallender to commit the offence,
I am prepared to deal with the appeal upon the basis of Mr.
Thompson's invitation, though I should have felt doubtful of the
court's jurisdiction to do so in a criminal charge had my opinion
been otherwise.
I accept the opinion of the magistrates that the property in
the coal taken from the hopper and loaded into the lorry did not
pass from the board to their customer, the Central Electricity
Authority, until Haslam issued the weighbridge ticket to
Mallender. It is, I think, clear that Haslam knew the essential
matters which constituted Mallender's proposed offence when,
but not until, he had weighed the coal. I do not think, how
ever, that Haslam knew that it was the issue of the weigh ticket
which operated to pass the property in the coal and thus to
complete the sale of the coal to the board's customer, and I
regard this consideration as important in considering Haslam's
motive in issuing the weigh ticket. It is highly improbable that
Haslam was acquainted with the provisions of sections 17 and 18
of the Sale of Goods Act, 1893, for ascertaining the intention of
the parties with regard to the passing of the property in the coal,
or that he ever applied his mind to the question of the precise
moment at which the property in the coal would thereby be
deemed to have passed. I will, however, assume against Haslam
that such knowledge must be imputed to him. I then ask myself
what courses were open to Haslam when he learnt, for the first

1 Q.B.

QUEEN'S BENCH DIVISION.

27

time (i.e., on seeing the scale register the tare of the vehicle and
1958
the weight of the coal as in excess of 20 tons) the essential NATIONAL
matters of the offence which he knew that Mallender intended
COAL
to commit. Two courses only were open to him: (1) to call upon
cMallender to off-load the coal, or so much of it as was necessary GAMBLE.
to reduce the total weight to 20 tons; and to refuse to issue a
siade J.
weigh ticket; or (2) to leave the coal where it was, thereby completing the sale, whereupon he would have to issue the weigh
ticket in order to avoid contravening the requirements of section
21 of the Weights and Measures Act, 1889. Haslam chose the
second of these alternatives, and it is his adoption of this choice
which has been held by the magistrates to constitute the aiding
and abetting of Mallender's offence.
If there were any evidence that Haslam's exercise of this
choice was inspired by a desire to encourage Mallender to commit
the offence (which Haslam knew Mallender intended to commit)
I would agree with the magistrates' decision. Some acts or
omissions speak for themselves; they are consistent only with a
desire to encourage or assist. Other acts or omissions are quite
colourless and no sinister inference can legitimately be drawn
from them. The motive for these can only be supplied by other
conduct, for example, where an otherwise equivocal act is accom
panied by words of encouragement to commit the offence.
Mr. Thompson referred us to Reg. v. Coney,22 and particularly
to the judgment of Hawkins J. 23 Coney's case was considered
by the Court of Criminal Appeal in Wilcox v. Jeffery,2* and both
these cases seem to me to emphasize the importance of ascer
taining the motive underlying an act or omission relied upon as
constituting encouragement to another to commit an offence.
I do not think the magistrates applied their minds to the
question whether Haslam issued the weigh ticket and thereby
completed the sale for the purpose of, or with a view to,
encouraging Mallender to commit the offence, or whether he did
so with no such purpose in mind. Indeed, if I am wrong in my
view that the words " encourage " and " assist " necessarily
import " motive " there is no reason why they should have done
so.
None of the facts found by the magistrates is, in my judg
ment, capable of supporting the inference that Haslam, in making
the choice he did, issued the weigh ticket and thereby completed
" 8 Q.B.D. 534.
=3 Ibid. 557.

2i
[1951] W.N. 77; [1951] 1T.L.R.
706; [1951]- 1 All E.E. 464.

28

QUEEN'S BENCH DIVISION.

1958

NATIONAL
COAL
B

GAMBLE.

siade J.

[1959]

the sale with a view to encouraging Mallender to commit the

offence which Mallender informed him he intended to commit.
On the contrary, I think the facts so found tend to negative
rather than to support any such inference, for example, the large
notice displayed by the board on the door of the weighbridge.
ticket office and the facts found in paragraph 4 (k) and (1) of the
case; nor can I see any reason why Haslam should desire to
encourage the commission of the offence.
Moreover, if knowledge is not to be imputed to Haslam as to
the precise moment when the property in the coal passed to the
board's customer, I think Haslam was in a difficult position and
may well have thought that he had no right to insist upon the
off-loading of the excess coal, that Mallender might well have
demurred to any such insistence, and that he, Haslam, could
only have enforced his demand by taking the law into his own
hands.
.For these reasons I think that the question raised by the case
should be answered in the negative, and that the conviction of
the board should be quashed.
Appeal dismissed.
Solicitors: Donald H. Haslam for Lawrence G. Jenkins,
Nottingham; Kingsford, Dorman & Co. for D. G. Gilman, Derby.
J. D. P.

1958

July l, 2,
3, 11.

GEEEN v. EUSSELL.

McCAETHY (THIED PAETY).

[X 1956 G. No. 97.]

Ashworth J.

Fatal Accidents Acts Damages Insurance Payment to employer

under personal accident group insurance policy Employer
"absolute owner" of policyEmployer's payment to deceased
employee's dependantWhether payment to be taken into account
in assessing damagesFatal Accidents (Damages') Act, 1908 (8
Edw. 7, c. 7), s. 1.
By section 1 of the Fatal Accidents (Damages) Act, 1908: " I n
" assessing damages in any action . . . under the Fatal Accidents
" Act, 1846 . . . there shall not be taken into account any sum
" paid or payable on the death of the deceased under any contract
"of assurance or insurance. . . . "
In 1951 an employer took out a personal accident group
insurance policy which, after reciting " Whereas the insured is