A2 Law
Participation
Introduction
When more than one person is involved in committing a criminal offence,
it will depend on the involvement of each person whether they are;
 A principal offender, or,
 A secondary party
The principal offender is the person who commits the actus reus, or is the
immediate cause of any consequence. For example, during the course of
a burglary one person may wait outside and act as ‘lookout’ while the
other goes in and steals items from the house. The person who goes into
the house is the principal offender, while the ‘lookout’ is the secondary
party.
Principal Offender
To be guilty the principal offender must also have the necessary mens rea
for the offence.
Joint Principals
Also known as co-principals. Where two or more people commit the
actus reus with the required mens rea they are all principals. If in the
example above both people had entered the house then they would both
be principal offenders.
Tyler v Whatmore (1976)
One man steered the car while the other changed the gears, they were
both carrying out the driving of the car and were therefore both principal
offenders. They were both convicted of driving without due care and
attention.
Innocent Agent
An innocent agent is someone who the principal uses to commit the act
for them. The principal will be charged with the offence, the agent may
be innocent because;
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 They do not have the capacity to commit the offence, e.g. they are
under the age of 10
Example: A seven year old is sent into a shop to steal by an adult.
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Secondary Parties
Also known as an accessory or an accomplice. Under s8 of the
Accessories and Abettors Act 1861 a secondary party will be charged
with the main criminal offence and if found guilty will be liable to the
same punishment as the principal offender.
A secondary offender can only be convicted if there was an actus reus for
the main offence.
Thornton v Mitchell (1940)
Bourne (1952)
In situations where the principal offender has carried out the act, then the
secondary party can be convicted even if the principal is acquitted, if the
actus reus was committed but the principal lacked;
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For example, the principal has the partial defence of provocation to a
charge of murder, they will then be charged with manslaughter, and any
secondary party without a defence would be charged with murder.
Actus Reus of Secondary Participation
The actus reus is that the secondary party must aid, abet, counsel or
procure the commission of an offence – s8 Accessories and Abettors Act
1861.
In Attorney General’s Reference (No.1 0f 1975) (1975) the Court of
Appeal held that each of these four words has a separate meaning.
Aiding
This is giving help, support or assistance. This could be before the
offence is committed, e.g. providing the tools for a burglary, as in
Bainbridge (1959), or during the time the offence is being committed,
e.g. acting as lookout.
Abetting
This is any conduct which instigates, incites or encourages the
commission of the offence.
Giannetto (1997)
Abetting can be immediately before the offence is committed or during
its commission. An example is shouting encouragement or paying for a
ticket for an illegal event.
Wilson v Jeffery (1951)
Wilcox knew that an American musician was not allowed to enter the
UK. Wilson met him from the airport and then paid for and attended a
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concert at which he was playing. Wilson was convicted of an offence
under the Aliens Act 1920.
Wilson was guilty as he paid for a ticket for the performance, however,
mere presence will not usually be enough for secondary participation,
there must be an intention to encourage.
Clarkson and Others (1971)
Clarkson and another soldier entered a room within army barracks where
a woman was being raped. They remained in the room while the rape
continued but did nothing. Their convictions for abetting rape were
quashed.
If the defendant is under a duty to control the principal offender then
mere presence may be enough for them to abet and therefore become a
secondary party.
Tuck v Robson (1970)
The defendant was the landlord of a pub. He didn’t serve drinks after
hours but allowed customers to remain in the pub drinking after licensing
hours. He was convicted of abetting breaches of the licensing laws as he
was in charge of the pub and had the authority to tell people to leave.
Counselling
This is advising or encouraging before the commission of the offence.
Calhaem (1985)
The defendant hired a ‘hit man’ to kill a woman. The ‘hit man’ decided
not to go through with the murder but when he met up with the woman he
claimed that he “went berserk” and killed her. Calhaem argued that the
casual connection between her acts and the killing was broken when the
‘hit man’ decided to kill the woman of his own accord. It was held that
there was no need for a casual connection between the counselling and
the offence.
Procuring
This means ‘to produce by endeavour’. In other words setting out to see
that something happens and taking steps to bring it about.
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Attorney General’s Reference (No.1 of 1975) (1975)
The important factor is the need for a casual link. Did the defendant’s act
cause the offence to be committed?
Millward (1984)
Millward was a farmer who gave instructions for a poorly maintained
tractor to be driven on the public roads. The trailer became detached
from the tractor and as a result another motorist was killed. Millward was
convicted of procuring the offence of causing death by reckless driving,
even though he didn’t set out to produce the result through endeavour.
Activity
Consider whether anyone in the scenarios below aided, abetted,
counselled or procured.
1. Carly knows that Baldeep is an expert at hacking into computers.
Carly tells Baldeep that she wants to get into a secure exam board
site and asks her to explain the best way to do this.
2. Clare sees Andy attacking Aimie. Clare does not like Aimie and so
she starts shouting “go on Andy, give it to her”.
3. Ashley lends Jonathan a screwdriver which Jonathan uses to break
into a car.
4. Emily lives in a caravan in Camp Hill. She asks Annabelle to tow
the caravan to another part of Nuneaton. Emily knows that the tow
bar on the caravan is in bad condition and is likely to become
loose. Annabelle tows the caravan; it becomes loose and crashes
into Colin, who is walking down the street, killing him.
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Mens Rea of Secondary Participation
The secondary party must an intention to aid, abet, counsel or procure the
act of the main offence.
Not caring whether the offence is committed or not can be enough to be
guilty as a secondary party as National Coal Board v Gamble (1958)
shows. In this case a weighbridge operator issued a ticket to a lorry
driver knowing his lorry was overloaded. The intention to carry out the
act which aided the offence was enough.
Knowledge
The secondary party only needs to have knowledge of the typr of crime
which id committed. They do not need the details of where and when it
will happen.
Bainbridge (1959)
It is enough that the secondary party has knowledge that one of a range of
offences is going to be committed.
DPP for Northern Ireland v Maxwell (1978)
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Flowchart on participation
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Shared Intention
In most cases the principal and the secondary party will have a shared
intent. An exception is where a secondary party procures an offence.
This was stated in Attorney-General’s Reference (No.1 of 1975)
(1975).
Joint Enterprise
A joint enterprise is where two or more defendants have agreed to carry
out one crime together. The most common situation would be a burglary.
When during the course of this agreed offence something goes wrong,
such as the owner of a house returning during the burglary. One of the
joint offenders then kills the owner. Is the other person involved in the
burglary also liable for the murder as a secondary party?
The rule is;
If, when the secondary party took part in the first offence (the burglary),
they contemplated or foresaw that the principle might commit a certain
type of other offence (murder), then the secondary party is guilty of this
other offence.
Powell (1997)
English (1997)
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Foresight/contemplation
Therefore a secondary party who foresees or contemplates that the
principle may commit the offence will have the sufficient mens rea. This
means that a lower level of intention is sufficient to convict a secondary
party of murder than for a principle.
As Lord Steyn stated in the House of Lords;
“Recklessness may suffice in the case of the secondary party but it does
not in the case of the primary offender.”
Is it just that a secondary party, who did not personally carry out the
killing, can be convicted on a lower level of intention and so face the
same mandatory life sentence as the actual killer?
Different Act
Where the principle carries out a completely different act, the secondary
party will not be liable. This was the case above in English (1997).
The problem of unexpected events within a joint enterprise have been
further considered by the Court of Appeal, who set out a series of
principles which should be followed in such cases.
Uddin (1998)
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Withdrawal from a Joint Enterprise
There are some cases where the defendant has agreed to take part in an
offence but then decides they do not want to go ahead with it. To avoid
being found guilty they must make their withdrawal from the offence
clear and effective.
Look up the following cases on withdrawal
Becerra and Cooper (1975)
Rook (1993)
Spontaneous Offences
Where spontaneous violence had occurred then it is possible for the
secondary party to withdraw effectively by walking away.
Mitchell and King (1998)
An unplanned fight broke out in a restaurant and continued into the street.
(Go into Nuneaton town centre on any Friday night to see an example of
this!) D1 and D2 were involved in the fight during which the victim was
badly beaten. D1 then dropped a stick, stopped fighting and walked
away. D2 picked up the stick and renewed the attack on the victim, who
later died of his injuries. Walking away was sufficient to withdraw
effectively.
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The situation would be different if the violence had been pre-planned.
Where this is the case the defendant must communicate his withdrawal to
the others involved in the plan.
Examination Question
“The criminal law deals satisfactory with those who aid, abet, or counsel
a principle offender in carrying out a crime or who procure the
commission of an offence by someone else. It is vital that such
participation in crime is properly dealt with.”
Assess the truth of this statement, by reference to the relevant law.
(50 marks)
(OCR, Criminal 1, Unit 2571, January 2005)
Complete the above examination question for homework, to be handed in
next Thursday.
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