Crime Lectures Transcript
Secondary Liability
Christina McAlhone
Track/ Slide 1
In this lecture we will consider the liability of secondary parties and the
principle of joint ventures.
Track/Slide 2
Where the actual offence has been committed it may not only be the actual
perpetrator who committed the offence but also those who gives advice,
assistance, encouragement etc before or after the commission of the offence
or who cause its commission. The parties may also be liable for conspiracy for
example A tells P to rape V. B keeps watch during the rape to warn P if
anyone approaches. C holds V down whilst P rapes V. P is the actual
perpetrator of the offence but A, B and C may also be liable. Collectively all
these persons are known as the parties to the crime or accomplishes. Note a
person giving assistance after an offence has been committed may be guilty
of the separate offence of assisting an arrestable offender under section 4 of
the Criminal Law Act 1967.
Track/Slide 3
Identifying the various parties to a crime. The principal offender. The actual
perpetrator of the crime is known as the principal offender or the principal.
Note it is possible to have more than one principal. A principal can act through
an innocent agent i.e. someone who commits the actus reus at the request of
the principal but who lacks the mens rea for the offence which is possessed
by the principal or lacks the capacity to commit the offence itself if for example
he is under 10 years of age.
Track/Slide 4
The secondary party to a crime or accessory is known as aider, abetter,
counselor or procurer. These modes of secondary liability may be technically
distinguishable. An aider provides assistance or support to the principal to
commit the offence for example he supplies the weapons or tools to commit
the crime or drives the principal to the scene of the crime. An abetter provides
encouragement or instigates or incites the principal to commit an offence at
the time it is committed.
Track slide 5
A counselor conspires to commit the offence or advises on its commission or
encourages its commission by the principal before the offence is committed. A
procurer produces by endeavour i.e causes the offence to be committed for
example by threats or persuasion. Thus for example a person who spikes
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someone’s drink before they drive so that the driver is unknowingly over the
limit is a procurer as is someone who tells the principal to commit an offence.
Track/Slide 6
The liability of secondary parties is governed by section 8 of the Accessories
and Abettors Act 1861 which provides that ‘whoever shall aid, abet, counsel
or procure the commission of an indictable offence is liable to be tried,
indicted and punished as a principal offender.’ Section 44 of the Magistrate
court act 1980 makes provision along similar lines for offences tried
summarily. Although the principal and secondary parties are tried in the same
way it is still important to distinguish the two as, inter alia, the mens rea
requirement may differ with a secondary party.
Track/ Slide 7
The requirements for secondary liability. The first requirement is that there
must be a principal offence. Secondary liability can only arise where the actus
reus of the principal offence has been brought out even though the principal
has lacked the mens rea or is not liable for some other reason for example he
is exempt from prosecution or has available some defence which is not
available to the secondary party and therefore, no offence was committed by
him.
See for example the case of Cogan & Leek in this case C was convicted of
raping A, his conviction was quashed as he had honestly believed that A had
consented. L was held to have procured C to rape A. (who was L’s wife). L
was held liable as the actus reus of rape had been presented. Note that if
there was not actus reus presented the defendant may still be liable for
incitement or conspiracy.
Track/Slide 8
The second requirement is the need for actual advice, encouragement,
assistance etc. The actus reus of secondary liability is the actual giving of
advice, encouragement, assistance etc, so that for example in itself mere
presence at the scene is not in itself sufficient even if accompanied by
knowledge that the offence is taking place
See for example the case of Clarkson in this case a group of soldiers
watching was giving no encouragement on the rape of a victim were not
convicted. However holding the victim down whilst the commission of a rape
would give rise to secondary liability.
Track/Slide 9
The mens rea of secondary party. There is some lack of precision or certainty
as to the exact mental state required of a third party. Unusually the mens rea
is expressed in terms of: the intention to assist, encourage, facilitate etc the
offence and knowledge of the essential matters which constitute the offence
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i.e. the circumstances or consequences required for the actus reus and
knowledge that the principal acts or may act with the requisite mens rea for
the principal offence.
Track/Slide 10
The intention to assist, encourage etc This means that it will be sufficient if the
secondary party intends to do an act which he knows will facilitate the
commission of an offence by the principal, even if he does not care whether
the offence is committed or not or actually hopes it will not. Motive is
irrelevant.
Thus for example a pub landlord who sells beer to D who is drunk and whom
he knows is going to drive home afterwards is a secondary party to Ds
offence of driving whilst intoxicated.
This principle comes from the case of NCB v Gamble. In this case the coal
board employed an operator who told the driver that the drivers lorry was
overloaded (this was an offence). The diver told the operator that he was
willing to take the risk of being caught with an overloaded vehicle. The
operator gave him a ticket him to leave the pitch. The Divisional Court held
that the operator was a secondary party to the principal offence of driving an
overloaded vehicle. The judge stated ‘an indifference to the result of a crime
does itself not make abbetting. If one man deliberately sells to another a gun
to be used for murdering a third. He may be indifferent as to whether the third
man lives or dies and interested only in a cash profit to be made out of the
sale but he can still be an aider and abetter. To hold otherwise would negative
the rule that mens rea is a matter for intent only and does not depend on
desire or motive.’
Track/Slide 11
What is the extent of the knowledge required of a secondary party? As the
defendant must have knowledge of the circumstances or consequences
required for the actus reus the d in the case of Ferguson v Weaving (a pub
licensee) was not liable for aiding and abetting the offence of drinking alcohol
after closing time as he did not know that after hours drinking was taking
place.
Track/Side 12
If a defendant aids, abets, counsel’s or procures X to commit a specified
offence clearly D knows that the offence is to be committed. However if D
provides the tools or information gives information for a proposed crime and X
has not specified a particular victim or place for the commission of the offence
is D liable for the offence X commits? Does D have the knowledge required of
a secondary party? This issue was considered in the case of Bainbridge in
which it was held that D is liable where he knew the particular type of offence
to be committed by X. It is not necessary to prove he knew the precise
circumstances for example the time and place of the commission. In this case
the d supplied metal burning equipment in the knowledge that it would be
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used for a breaking and entering type of offence. His appeal against
conviction was quashed and it was irrelevant that he did not know that it was
to be used to break into a bank six weeks later.
Track/Slide 13
You should also read the case of DPP v Maxwell which extended Bainbridge
to cover not only knowledge of the type of crime but also the situation where
the offence committed was within the range of a limited number of crimes
which the secondary party contemplated would be committed.
Track/Slide 14
The following example illustrates the principle in DPP v Maxwell. D provides
assistance to P, knowing that P is going to commit an offence, but D does not
know whether P intends to commit offence A,B or C. D is liable if P commits
any one of the offences A, B or C.
Track/Slide 15
The issue of joint enterprises. A joint enterprise is where two or more parties
embark upon the commission of criminal offence with a common design. The
rule of joint enterprise is that all the parties will be equally liable for the
consequences which follow the implementation of the agreement, and this
may include any unforeseen consequences.
Track/Slide 16
Even if one of the parties is not present when the offence is actually
committed the principles relating to joint enterprise still apply to him. This was
made clear in the case of Rook. Thus a defendant may still be liable even if
he has just left the scene of the crime as may a defendant who was the
mastermind behind the offence but does not get his hands dirty but getting
involved in the commission of the crime.
Track/Slide 17
How have the courts defined a joint enterprise? In Peters and Parfitt it was
defined as being: “A shared common intention…each has the same intention
as the other and each knows that the other intends the same thing.”
Liability is imposed on each party of the joint enterprise for any crimes
committed by their accomplices which fall within the joint enterprise.
Track/Slide 18
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Liability is imposed on each party to the joint enterprise for any crimes
committed by their accomplices which fall within the scope of the joint
enterprise. When might an accomplice exceed the scope of the joint
enterprise? It is necessary to determine the scope of the joint enterprise.
Track/Slide 19
The first question to ask in determining the scope of the joint enterprise is
what were the parties expressly or implicitly agreeing to? If a consequence
was expressly or implicitly agreed to, it is within the scope of the joint
enterprise according to Anderson & Morris. Thus, accomplice D, can be
liable for an unintended consequence for example death occurring in the
course of using force in a robbery if the scope of the enterprise to which D
was a party included the use of force upon V.
Track/Slide 20
What if there was no express or implied agreement that during the
commission of offence X, offence Y be carried out? In such a case D would
not be liable unless he foresaw and we are looking for subjective
recklessness here that in the course of the enterprise to commit offence Z, the
other party might carry out, with the requisite mens rea, an act constituting
another crime Y. This principle comes from the case of Powell & English
Track/Slide 21
The facts of Powell are as follows. D1, D2 and D3 went to Bs house in order
to buy drugs. D1 and D2 knew that D3 was carrying a gun and B was shot
when he answered the door. D1 and D2 were found guilty of murder on the
basis that they knew that D3 had a gun on him and foresaw that he would use
it to kill or cause GBH to B they appealed ultimately to the House of Lords and
the House of Lords dismissed their appeal
Track/Slide 22
Is the principle in Powell & Engish fair? In the context of murder, D, who took
part in the joint enterprise but did not actually do the killing, would be liable for
murder if he foresaw that P might kill with the intention to kill/do GBH whereas
P would only be liable if he intended to kill or cause GBH. D would still be
liable even if he had not agreed either expressly or tacitly to the offence being
committed and even if he had stated expressly that it should not occur.
Track/Slide 23
Would Powell have been decided differently if D1 and D2 had not known that
D3 was actually carrying a weapon? The answer to this is yes according to
their Lordships in Powell. They stated that in such circumstances, D1 and D2
would not be accomplices to it as, even if they foresaw D3 might kill with
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intent to kill/do GBH D3, by using the weapon, would have deliberately
exceeded the scope of the joint enterprise and would be acting alone.
Track/Slide 24
However there is an exception to this which was set out in the case of Uddin.
If D3 agrees not to use a weapon but then pulls out a weapon on V and D1
and D2 continue to participate in the attack, they could be said to have tacitly
agreed to a change in the agreed plan and therefore still be liable.
Track/Slide 25
What if D knows that X is going to use a weapon but X uses a different
weapon than that envisaged? This was the issue faced by their Lordships in
English. In this case the D1 and D2s took part in a joint attack on a
policeman. They both injured the policeman with wooden fence post. He
actually died as a result of P stabbing him with a knife. D1 and D2 did not
know that he had a knife. It was held that even if D, a party to a joint
enterprise, intended or foresaw that P would or might act with the mens rea
for the offence actually committed, D could not be liable as a party to that
offence if P’s act was fundamentally different from the acts D had intended or
foreseen because the weapon used was more dangerous than that D
intended or foresaw might be used.
Thus on the facts of the case D was not liable for murder because Ps actions
were fundamentally different from what he foresaw as a knife was more
dangerous than a fence post.
Track/Slide 26
If the weapon used by the principal, although different from what was intended
or foreseen, had been as dangerous as that which D foresaw might be used,
D would still be liable. For example if D foresaw that the principal might use a
gun to kill and P used a knife, D would still be liable for murder.
Track/Slide 27
According to their Lordships in English, it is for the jury to decide whether the
weapon used is more dangerous than the one envisaged so as to remove the
killing from the scope of the joint enterprise. Thus in Uddin the Court of
Appeal’s said the issue of was whether the knife was fundamentally different
from clubs and kicks should have been left to the jury to decide. In Greatrex
the court of appeal seemed willing to agree that kicking with an iron bar which
was contemplated by D was not fundamentally different than striking with a
strode foot which D did not contemplate.
Track/Slide 28
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Where P has exceeded the scope of the joint enterprise and caused the
victims death, when is D liable for the murder? In Mitchell it was held that
where P’s actions which cause death take him outside the scope of the joint
enterprise, D is not liable for murder or manslaughter. The position where P’s
mens rea takes him outside was considered in Gilmour.
Track/Slide 29
In Gilmour the Court held that the defendant could be liable for manslaughter
on the basis of an unlawful and dangerous act if the principals actions would
not be outside the scope of the joint enterprise. The facts of Gilmour are as
follows. D, aware that the accomplices were going to petrol bomb the house,
waited near by in order to assist their escape. The principal threw a petrol
bomb at the house with an intention to kill, D only foresaw arson to the house
and three boys were killed in the resulting fore. D was held liable for
manslaughter as P had committed the very act that D had contemplated but
with a greater mens rea than he had contemplated.
Track/Slide 30
The decision in Gilmour conflicts with others of the Court of Appeal for
example Anderson and Morris which stated that D ceases to be a party to the
actions of P in this situation – P has acted outside the scope of the common
purpose and D is not liable for manslaughter. The issue is, therefore, unclear.
Track/Slide 31
Accomplices and defences available to the perpetrator. Where P performs the
actus reus of murder with intent to kill/do GBH but has the partial defence of
diminished responsibility available to him so as to reduce his liability to that for
manslaughter, D, the accomplice, remains liable for murder (s2(4) Homicide
Act 1957)
Track/Slide 32
There is no equivalent provision covering the situation in which P can rely
upon provocation but D cannot. However there is no reason why D should not
be liable for murder.
Track/Slide 33
Can an accomplice be liable for a graver offence than the perpetrator? The
answer to this is yes if the accomplice had the mens rea for which P had
mens rea and the actus reus for both offences is the same. For example P
might be liable for s20 if he wounds with intent to do some physical harm and
the accomplice for s18 if he foresees that P might wound with intent to do
GHB.
Track/Slide 34
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Withdrawal of participation by an accomplice. Mere repentance without any
action on D’s part will leave D liable for the offences committed by his
accomplice (Beccera). If there is an unequivocal communication or
countermanding of the prior participation so as to indicate to the other parties
that assistance in the enterprise is being withdrawn before the stage of
commission of the principal offence, D can escape liability for that offence
(Rook).
Track/Slide 35
Equivocal words of withdrawal are not sufficient see for example Baker in
which the words ‘I am not doing it’ were held to be equivocal and therefore
insufficient because they did not clearly disassociate D from the offence. It
could merely mean that D would not strike any more blows. The effect of
withdrawal is likely to be easier at the preparatory stage than withdrawal
where the offence is in the course of being committed. See for example the
case of Beccera.. In this case D broke into the house with A and B intending
to steal. D gave a knife to A to use if necessary on anyone interrupting them.
The tenant of the upstairs flat V came down to investigate the noise. D said
there’s someone coming lets go. D then jumped out of the window and ran
away. A then stabbed V with the knife and killed V. D was tried for murder and
attempted to argue that he had withdrawn from the joint enterprise before the
stabbing. The court of appeal held that these words of withdrawal, coupled
with D’s leaving of the scene, was not sufficient to withdraw D from the
enterprise. A withdrawal at that stage required something more
countermanding in some manner more effective than D’s words and actions.
The court did not specify what would be sufficient but it is submitted that it
would be sufficient for D to intervene in the attack. It is also submitted that if
effective communication is possible then D would not have to go to the police
but if it were not effective then D would have to go to the police.
Track/Slide 36
Withdrawal from spontaneous violence. Where the violence is spontaneous
rather than pre planned it seems that communication of withdrawal might not
be required see Mitchell. In this case the Ds and X caused a disturbance at a
restaurant where the premises were damaged. They left the restaurant and
were pursued by several of the restaurant staff. Fighting broke out and as a
result one of the restaurant staff, V, died. There was evidence that after V had
been repeatedly punched and kicked the defendant had walked away and X
had turned around picked up a stick and hit V with it several times. D’s
convictions for murder had been quashed by the court of appeal as the
violence was spontaneous, not pre planned so that the defendants did not
have to communicate their withdrawal to X they had actually withdrawn by
walking away.
However in Robinson the court made clear that Mitchell was an exceptional
case and that communication of withdrawal must be given even in cases of
spontaneous violence except where it is not reasonable and practicable to do
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so, as in Mitchell where the defendant had thrown down his weapon and
moved away before the final and fatal blows were inflicted.
Track/Slide 37
Finally even if the defendant successfully withdraws, he will remain liable for
any offence he might have already committed for example conspiracy if he
had already agreed to its commission with another/others.
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