7. Parties Flashcards
Who is a principal offender?
Person committing actus reus w/ requisite mens rea
When are two defendants both considered to be principal offenders?
If they act together for a common purpose, in committing the act
What is an innocent agent situation, and who is liable?
Where a defendant asks another do something the defendant knows will amount to an offence, but the other person is unaware, defendant can still be guilty as a principal
Actus Reus for accessorial liability
- the principal offender must commit a principal offence.
- the accessory must aid, abet, counsel, or procure the commission of the principal offence.
- take place before or at the time of the offence.
What is abetting?
Encouraging or inciting an offence at time offence is committed/crime scene
Under the doctrine of joint enterprise, when might a secondary participant in a crime be treated as a principal?
If the offence (AR) was committed in the presence of both the principal and secondary party pursuant to a preconceived plan. Acting in concert.
- Accessory is there when the offence is committed and intends for P to commit offence with requisite MR.
Distinction between principal offender and secondary party in committing offence
Secondary party/accessory does not directly commit the actus reus of the offence.
How much knowledge of the principal offence must a secondary party have
to be liable as an accessory?
must know circumstances forming actus reus.
AND
- principal offender would act with requisite mens rea.
- wilful blindness = sufficient
In what circumstance, must a causal link be established between the principal offence and an accessory’s conduct?
only necessary for procurement
- there must be a causal link between accessory’s contribution and principal’s offending
Is mere presence at the scene or failure to intervene/prevent sufficient?
NO - need to satisfy MR!
Mens Rea for accessorial liability
- knowledge of essential matters for the principal offence:
- principal will commit AR and mens rea of offence.
AND
- intend to assist or encourage for the principal offence to be committed
Is it necessary to prove that encourage or assistance had a positive effect on principal offender’s conduct or the outcome?
No!
- Still potentially liable even where encouragement cannot be shown to have made different/was ignored by principal.
Threshold of knowledge needed to satisfy the mens rea for accessorial liability
- know the type or range of crime(s) being committed.
- Not necessary for D to know exact offence taking place and particular details (who, when, where)
Contrast:
- insufficient = if simply aware that something illegal is happening.
Will accessory be liable even where principal offender commits offence beyond that which accessory intended to be committed by P?
No - accessory’s intention must match that required by principal offence.
- if a principal offender escalates violence and kills victim = not liable as accessory to murder if did not encourage/assist w/ intent to kill. Instead, could be liable for manslaughter (R v Jogee).
Can intention be made out even if accessory is not aware of the precise manner in which the offence will be carried out?
- yes (DPP for N.I v Maxwell)
DPP for Northern Ireland v Maxwell [1978]
Member of a terrorist organisation, was liable as an accessory for guiding the car taking a number of men to carry out a violent attack.
Even if he was unaware of the precise form of the attack they were to carry out (shooting, bombing etc) = intended to assist them in doing so.
Does principle of transferred malice apply to accessorial liability?
Yes - provided that principal has not deliberately selected a different victim from that that foreseen or intended by accessory.
- transferred malice only applies where principal mistakenly harms someone else.
If principal deliberately selects a different victim than that intended/foreseen by accessory, what alternative offence should be considered?
charge of conspiracy/inchoate offence against accessory
What are the two qualifications limiting the scope of secondary liability?
- Principal’s act is fundamentally different from that foreseen by accessory.
- Accessory withdraws from joint venture before commission of offence.
Can oblique intention suffice to find party liable as an accessory?
Yes - provided type of principal offence allows for it.
Doctrine of joint enterprise
where two or more people embark on commission of an offence together with common purpose, but only act of one of them (principal) is immediate cause of its commission.
- everyone involved = liable as joint principals if they had foresight that principal might do with the requisite MR an act of kind which committed.
How can a party successfully withdraw from offence?
- If violence is pre-planned, must take active steps to prevent it by communicating with principal or law enforcement agency (but not necessarily spontaneous).
- Questions of fact and degree, but general expectation that party should actively prevent offence from unfolding
(cf. passively running away from crime scene).
Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a second crime (crime B), will D2 be liable for crime B?
Not be liable as joint principal for crime B, but possibly as accessory provided D2 satisfies necessary elements.
What constitutes abetting?
to incite, instigate or encourage principal at the time of the offence
- communicate
What constitutes counselling?
giving principal advice or encouragement before the offence is committed.
- must be connection between the advice and the crime.
- note = causation not needed.
Is conviction of a secondary party and the acquittal of the principal is possible?
Yes
Is it an offence to aid, abet, counsel or procure an attempt to commit an offence?
No, but it is an offence to attempt to aid, abet, counsel or procure
Can accessory liability arise even where defendant is simply responsible for supplying principal with a weapon ?
Yes - amounts to procurement.
- No need for defendant to have further interest in what principal plans to do with it, as long as the weapon was supplied w/out lawful purpose/justification for principal offender possessing it.
- There must be a causal link between D2’s contribution and D1’s offending
Can a party be guilty as a secondary party where there is no principal offender?
No, since no actus reus has been committed to start with.
What is the correct test when determining whether a party (D) to a joint criminal enterprise remains liable for subsequent offences committed by their joint principal?
Consider whether joint principal’s subsequent act is a ‘fundamentally different act’ amounting to an overwhelming supervening event.
- joint principal must have acted in a considerably more dangerous way than D intended.
-note - incorrect to pick answer referring to test as one of ‘mere possibility.’
Can a defendant be liable as a secondary party for merely forseeing the possibility that the principal might commit the offence?
No - mere forseeability as to possibility is no longer sufficient.
Can a defendant be convicted as a secondary party where the principal is charged with an attempted offence?
No - there is no offence of attempted complicity.
- one cannot be guilty as secondary party to offence that was not committed.
