Secondary Liability
• In this lecture, we will consider the
liability of secondary parties and the
principle of joint enterprise.
• 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.
Identifying the various
parties to a crime
• The principal offender
• A principal (P) can act through an
innocent agent i.e. someone who
commits the actus reus at the request of
P but who lacks the mens rea for the
offence which is possessed by P or
lacks the capacity to commit the offence
itself if e.g. he is under 10 years of age.
Secondary parties
(Accessories)
• Aider provides assistance/support to P
to commit the offence. E.g. he supplies
the weapons / tools to commit the crime
/ drives P to the scene of the crime.
• Abettor provides encouragement or
instigates or incites P to commit an
offence at the time it is committed.
• Counsellor - conspires to commit the offence /
advises on its commission / encourages its
commission by P before the offence is
committed.
• Procurer - produces by endeavour i.e. causes
the offence to be committed e.g. by threats /
persuasion.
• Thus, e.g. a person who spikes someone’s
drink before they drive so that the driver is
unknowingly over the limit is a procurer as is
someone who tells P to commit an offence.
Liability of secondary
parties
• S.8 Accessories and Abettors Act 1861
(as amended provides:
• "Whosoever shall aid, abet, counsel or
procure the commission of an indictable
offence is liable to be tried, indicted and
punished as a principal offender."
• Secondary liability can arise where the actus
reus of the principal offence has been
brought about (if no AR, D could still be liable
for e.g. incitement / a conspiracy) even
though P lacked mens rea or is not liable for
some other reason, see e.g. 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 Cogan & Leek
(1976).
• The actus reus of secondary liability is
the actual giving of advice,
encouragement, assistance etc, so that,
e.g. mere presence at the scene is not
in itself sufficient (even if accompanied
by knowledge that the offence is taking
place), see e.g. Clarkson (1971).
• Usually 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 i.e. the
circumstances or consequences
required for the actus reus and
knowledge that the principal acts/may
act with the requisite mens rea for the
principal offence.
• It is 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.
• See NCB v Gamble (1959)
• What is the extent of knowledge
required of a secondary party?
• See Ferguson v Weaving (1951)
• D is liable if he knew the particular type
of offence to be committed by P. It is not
necessary to prove he knew the precise
circumstances e.g. time and place of
commission, see Bainbridge (1960).
• Also see DPP for Northern Ireland v
Maxwell (1978) 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.
Example
• 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.
Joint enterprise
• A joint enterprise is where two or more parties
embark upon the commission of a 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.
• 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 (Rook (1993)).
How have the courts
defined a joint enterprise?
• In Peters and Parfitt (1995), 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 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?
• Necessary to determine the scope of the joint
enterprise.
• Scope of the joint enterprise - what were the
parties expressly or implicitly agreeing to?
If a consequence was expressly or impliedly
agreed to, it is within the scope of the joint
enterprise (Anderson & Morris (1966)).
• Thus, accomplice D, can be liable for an
unintended consequence, e.g. 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.
What if there was no express or
tacit agreement that offence Y
be carried out?
• D would not be liable unless he foresaw
(subjective recklessness required) 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 (Powell &
English (1997) HL).
• The appeals in Powell and English were
heard together by the House of Lords.
• Facts of Powell
Is the principle in Powell &
English 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 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.
Would Powell have been decided
differently if D1 and D2 had not known
that D3 was actually carrying a
weapon?
• Yes, their Lordships in Powell & English
stated that in such circumstances, D1 and
D2 would not be accomplices to it as, even if
they foresaw D3 might kill with intent to
kill/do gbh D3, by using a weapon, would
have deliberately exceeded the scope of the
joint enterprise and would be acting alone.
• 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 (Uddin
(1998)).
• HL held in Powell&English 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.
• Cf, 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.
• E.g. if D foresaw that the principal might
use a gun to kill and P used a knife, D
would still be liable for murder.
• 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 (English).
• Also see:
• Uddin
• Greatrex (1999)
• Where P’s actions which cause death
take him outside the scope of the joint
enterprise, D is not liable for murder or
manslaughter (Mitchell).
• The position where P’s mens rea takes
him outside was considered in Gilmour
(2000).
• Gilmour - court distinguished between
situation (a) where P’s actions which
cause death take him outside the scope
of the joint enterprise and (b) where his
actions are within the scope of the joint
enterprise but he acts with a greater
mens rea than envisaged by D.
• In (b) D could be liable for constructive
manslaughter as P’s actions would not
be outside the scope of the joint
enterprise.
• Decision conflicts with others of CA e.g.
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.
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 (s.2(4)
Homicide Act 1957).
• 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.
Can an accomplice be liable for a
graver offence than the
perpetrator?
• Yes, if the accomplice had the mens rea for a
more serious offence than that for which P
had mens rea and the actus reus for both
offences is the same.
• E.g. P might be liable for s.20 if he wounds
with intent to do some physical harm and the
accomplice for s.18 if he foresees that P
might wound with intent to do gbh.
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 (1975)).
• 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).
• Equivocal words of withdrawal are not
sufficient, see Baker (1994).
• Effective withdrawal is likely to be easier
at the preparatory stage than withdrawal
where the offence is in the course of
being committed, see, e.g. Beccera.
Withdrawal from
spontaneous violence
• See Mitchell (1998)
• In Robinson (2000), the court made clear that
this 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 so, as in Mitchell where D
had thrown down his weapon and moved
away before the final and fatal blows were
inflicted.
• Even if D successfully withdraws, he will
remain liable for any offence he might
already have committed, e.g. for
conspiracy if he had already agreed to
its commission with another/others.