Objective Notes: W201 – Individual & State
UNIT 28– MANUAL FOUR
ACCOMPLICE LIABILITY
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A R of Acc Liab
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Aid, abet, counsel or procure commission of offence where aid = physical
assistance to principal offender (princ off) (e.g. supplying weapons) &
Counsel = advice/ encouragement (e.g. how to gain access to premises) &
by A-G ref (No. 1 of 1975) [1975] – words to have ordinary meaning but
cases suggest aid/ abet = something done at scene of crime & counsel
procure/ = action before crime is committed;
No acc liab if assistance is provided after crime committed – involvement to
be before or during crime;
R v Clarkson [1971] - Def to positively assist/ encourage by words or actions
& mere presence does not satisfy A R so where def present at scene acc liab
only incurred where def present by prior arrangement with princ off; or
actually encouraged/ assisted princ off by words/ actions;
But by Du Cros v Lambourne [1907] failure to intervene at scene or
remaining silent where def has duty to control acts of princ off can =
encouragement.
MR
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Acts/ words establishing A R of acc liab – intention by R v Clarkson [1971]
to provide encouragement he actually gave – wilful encouragement &
realised he is so doing; i.e. proof def intentionally/ deliberately carried out
aiding etc act; or spoke the words advising, procuring etc crime.
Knowledge of circumstances –
o Johnson v Youden [1950] –def knew essential features constituting
offence but does not have to know that a crime has been committed –
may not know that facts = an offence & ignorance of law not =
defence;
o All circs of princ offence to be within his contemplation - knew certain
things which in fact = offence would happen; or at least contemplated
may happen & irrelevant whether he realises that facts actually =
offence
o By Maxwell v DPP for N Ireland [1978] where def had range of
offences within contemplation, he had acc liab if princ off committed
one of those.
Distinguishing princ off’s MR & that of acc
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Princ off must either intend offence or be reckless, depending on nature of
offence but acc liab incurred where def knew or foresaw that a result might
occur - M R lower than for the princ off;
DPP v K & C [1997]- A R must be found but absence of princ off M R OR
presence of full defence does not prohibit acc liab;
As to strict liab offences by Ferguson v Weaving [1951] acc liab only
incurred where def intended to do assisting act & knew (or had within
contemplation) all essential elements of offence;
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Objective Notes: W201 – Individual & State
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R v Howe [1987] – where acc had M R for more serious offence than
committed, he could have acc liab for that offence provided A R is found.
Acc liab re unexpected consequences of agreed plan
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R v Slack [1989] - acc is liab where tacitly agreed to offence commission or
lent himself to such commission & by R v Hyde [1990] even where no
agreement between the parties, if def realised that princ off might commit
specific offence, he had acc liab - given assistance/ encouragement by
lending himself to enterprise;
By Slack & Hyde where def realises that princ off might commit offence &
princ off has M R required, he has seen such action as possibility & is liab if
offence is committed & irrelevant in these circs if he had not agreed it would
occur or hoped it would not; but if did not foresee possibility no acc liab if
princ off goes beyond agreed scope of the planned crime;
R v Lovesey & Patterson [1970] – where consequences, unexpected by all,
result from agreed plan both co-adventurers (=princ off & acc) are liab
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Acc liab where princ off deliberately exceeds agreed plan
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Where princ off deliberately goes beyond plan to extent consequence not
within acc’s contemplation & he did not know princ off intended result, by
Lovesey, R v Anderson & Morris [1966] & R v Dunbar [1988], acc has no
liab for results but by R v Gilmour [2000], where princ off carries out in
unexpected way, contemplated act, acc liab to extent of his intent;
But by R v Powell where pros unable to prove who fired gun acc is liab knew 3rd member had gun & realised he might use it to kill/ cause GBH
since def satisfied acc liab elements; & foresight of risk by acc that princ off
will murder suffices;
However in R v English where different weapon used to that contemplated,
acc had no liab because princ off had gone beyond plan’s scope - confirmed
Anderson & Morris and Dunbar – where princ off has gone beyond plan, acc
has no liab at all – not even for mans & where def has foreseen some
weapon would be used but actual weapon materially different, he can escape
liab - it was for jury to decide whether this was so.
Withdrawal from plan
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R v Becerra [1975] - action necessary to break chain of responsibility
depended on facts involved but must include timely communication of
withdrawal intention - where possible unequivocal notice to other(s), that
they would be continuing without acc’s further aid etc;
Whether this established is question of fact for jury - whether withdrawal
effective depends on circs but where at crime scene, acc telling princ to
leave & then departing would not have done enough to substantiate this effective comm. one element but, at scene, not itself enough;
R v Grundy [1977] words may be sufficient where withdrawal is before
offence is committed;
Withdrawal before event - effective comm. may establish this but may
not be enough if assistance physical rather than verbal - physical
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Objective Notes: W201 – Individual & State
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intervention necessary – e.g. warning victim but in withdrawal at scene comm. not enough, for jury to decide what additional elements to be
present but may needs physical intervention by acc to prevent offence;
R v Mitchell & anr [1999] - where violence pre-planned Becerra remains
authority but where spontaneous, C of A suggested mere withdrawal
without comm. can suffice but in R v Robinson [2000] – Mitchell
exceptional – def moved away before attack commenced – so Becerra
applies in most acc cases - at minimum effective comm. to be established
for withdrawal to be sufficient, must be before attack has commenced
but where encouragement given & attack commenced, unlikely
withdrawal then will escape liab.
Evaluation of acc liab current position
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Powell & English established acc only liab for acts within scope of plan - acc
liab for same offence as princ off if foresees princ off will commit that with
M R required but Lord’s decision = acc guilty of murder or of no offence at
all & debatable whether just that princ off must have intent but acc – who
may not have wished offence to occur – has liab simply if he foresees that
princ off may murder;
Approach based on not recklessness in foreseeing death/ injury but in
knowing that princ off might kill with M R - acc participant inn intentional
crime & policy of public protection means that in collaborative ventures, def
who knows that murder might occur to be treated as murderer if it does;
Policy important but false premises that acc liab is either for murder or
nothing - if accepted that princ can be liab for murder but acc for mans,
courts would accept that where def has lower M R than princ not guilty of
same offence so where death results from collaborative acts, all participants
should have liab, but such liab should relate to individual culpability.
Bizarre that Powell approach = less blameworthy M R for acc than princ off
&, since acc liab depends heavily on M R M R required should be intention;
Individual not responsible for others’ acts without intentional assistance/
encouragement & such extension of acc’s will to princ off’s actions, renders
acc full liab but where acc only foresees princ might murder, not full
extension & the responsibility is more akin to recklessness so Powell results
in over inclusiveness – murder convictions where mans is more appropriate;
Conversely, English provides under inclusiveness – no liab at all - not guilty
because held not to be responsible for fatal act – use of weapon;
This results from all or nothing approach but is questionable -if had foreseen
that princ off might have killed victim with post would have been liab but
because a different weapon was used, he had no liab at all;
Whilst knife more lethal than post, distinction purely on method not
supportable - long established that method irrelevant & where there is shared
enterprise, each member, irrespective of his contribution, shares
responsibility for all acts done in furtherance of the common purpose so if
there is foresight of murder, accs should have liab, irrespective of weapon,
subject to considerations re level of culpability.
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