ATTEMPTS AND ACCOMPLICE LIABILITY

Question 1

What are the two types of scenario where someone can be liable for attempting to commit an offence?

Answer 1

• incomplete attempt where D has not done all acts necessary to bring about offence
• complete attempt but desired outcome not followed

Question 2

What is the justification for criminalising complete attempts?

Answer 2

• D has committed all necessary acts for offence and intended to commit it and therefore is no less blameworthy than a person who successfully completes offence

Question 3

What is the actus reus and mens rea of attempt?

Answer 3

AR: to do an act that is more than merely preparatory to the commission of the offence
MR: intent to commit offence

Question 4

Which offences are capable of being subject to an attempt charge?

Answer 4

• all indictable offences
• EXCEPT attempting to be an accomplice

Question 5

Can someone be guilty of an attempt of an offence if there is an omission to act? For example parents who neglect their 8 year old daughter dies. Have they satisfied the AR of murder or attempted murder?

Answer 5

• if she dies then AR of murder satisfied due to special relationship
• however if she survives then the AR of attempted murder cannot be established because AR of attempt requires an ACT

Question 6

What is meant by ‘more than merely preparatory’?

Answer 6

• case law seems to suggest that significant steps need to be taken towards full commission of the offence but it is not necessary to establish that D has done all they intended to do (R v Jones)
• judge must feel that D has ‘embarked upon the crime’
• essentially the court will decide, given the facts, whether what D has done is MORE than more preparation and has reached a point where it is an attempt

Question 7

What needs to be shown in terms of the MR for attempted murder?

Answer 7

• even though the MR is intent to kill or cause GBH, only an intention to kill will suffice to satisfy MR of attempted murder
• no lesser mens rea will suffice

Question 8

Will recklessness suffice in terms of attempts?

Answer 8

• under Millard v Vernon
• usually recklessness is not enough for the conviction for an attempted crime
• under Attorney’s General Reference it was held that on a charge of attempted aggravated CD, D must intend to damage property so they must intend the consequence forming AR of the offence
• however they can be reckless as to whether life is endangered as this is an ulterior MR

Question 9

Is conditional intent adequate in terms of MR for attempts?

Answer 9

• yes eg if someone puts hand into V’s pocket and theres nothing worth stealing then it is still adequate MR of attempted theft

Question 10

Will D be guilty of an offence which is impossible? What’s the AR and MR required?

Answer 10

-eg impossibility as to ends (Jose puts his hand into Lesley’s pocket hoping to steal something but her pocket is empty) and impossibility of means (Selena tried to break into a safe using a teaspoon) will not prevent the establishment of the AR of attempt

-s1(2) of the CAA says that a person may be guilty of attempting to commit an offence to which this section applies even through the facts are such that the commission to the offence is impossible
- s1(3) of the Criminal Attempts Act says that D will be deemed to have the intent to commit a crime if, on the facts which they believed them to be true, they would have had such intent

Question 11

Draw a flowchart summarising AR and MR of attempts

Answer 11

Question 12

What is the difference between the principal offender and an accomplice?

Answer 12

• principal offender is the person who commits the AR of the offence
• those who assist in the offence in some way whilst not committing AR themselves is are known as accomplices

Question 13

What is the AR for accomplice liability under s8 of the Accessories and Abettors Act 1861 ?

Answer 13

• ‘whosoever shall aid, abet, counsel or procure the commission of any indictable offence shall be tried indicted as a principal offender’

Question 14

Define aid/abet/counsel/ procure.

Answer 14

Aid - give assistance DURING the offence
Abet - give encouragement DURING offence
Counsel - give encouragement BEFORE the crime is committed
Procure - bring about the offence BEFORE

Question 15

Draw a table highlighting when the aiding/abetting/counselling and procuring must take place for the AR to be fulfilled

Answer 15

Question 16

R v Clarkson

Answer 16

• mere presence at the scene not enough sufficient to amount to the actus reus of being accomplice

Question 17

Wilcox v Jeffrey

Answer 17

• D was accused of being an accomplice to an illegal
  performance by an American musician.
• D was found to have encouraged the commission of the offence as he met the musician at the airport, bought a ticket for the concert and attended the performance.
• paying to attend an illegal event could amount to encouragement of the crime and so establish the actus reus of accomplice liability.

Question 18

Du Cros v Lambourne

Answer 18

• the police were unable to determine whether the defendant had been the driver of, or a passenger in, a speeding vehicle. - no dispute that the car belonged to the defendant. Despite the uncertainty as to the defendant’s role in the offence, the defendant was convicted of what would now be the offence of dangerous driving.
• the court held that he was either the principal offender (the driver) or an accomplice, in that he had encouraged the commission of the offence by failing to control the actions of the driver when he had a duty to do so as the car was his.

Question 19

So in which circumstances can presence at the scene amount to AR of accomplice liability?

Answer 19

• if attendance was by prior arrangement with principal
• remaining silent or failing to intervene at the scene of a crime where is a right or duty to act to control the actions of the principal offender

Question 20

What conclusion did Attorney’s General Reference come to about whether a mental link between the principal and accomplice is needed.

Answer 20

• a meeting of minds does not mean the parties must have discussed the matter before the crime occurs.
• if the principal becomes aware of the accomplice’s encouragement (abetting) or advice (counselling) during the commission of the crime, that will suffice to establish the actus reus of accomplice liability
• so for abetting an counselling a mental link is required

Question 21

Does a casual link need to be established between the principal and the accomplice?

Answer 21

• in cases where the accomplice is said to have procured the commission of the crime, there must be a causal link between the accomplice and the principal, so it can be
  demonstrated that the behaviour of the accomplice caused the crime to be committed

Question 22

In cases of acts of assistance (ie aiding) does a mental or casual link need to be established?

Answer 22

• neither need to be established
• you can be guilty of accomplice liability without the principal even knowing about the accomplice’s assistance

Question 23

Can someone be an accomplice if the principal offender is not guilty ie has a defence or AR/MR not established?

Answer 23

• R v Diaz, which means that the actus reus must be able to be established otherwise the accomplice cannot be guilty of being an accomplice to an offence where the AR not met
• R v Cogan and Leak, if the prosecution is acquitted due to a valid defence, then there is a possibility that the accomplice can still be guilty

Question 24

Explain the principle of innocent agency using this scenario:

Celia tells Eric that she wants some of her property destroyed. She asks him to collect it from her office and burn it. Eric gets the property and burns it, believing Celia’s story, but in fact it belongs to Sumeena who reports the matter to the police.

Answer 24

• Eric not guilty of CD he has defence of s5(2)a which is consent of the owner
• therefore Celia has instigated offence therefore procuring it
• however in cases where an innocent agent is used to commit the AR, the law will make Celia the principal offender rather than accomplice

Question 25

What are the limits to innocent agency?

Answer 25

• in sexual offences often there is a conception that the principal offender needs to be the person directly involved

Question 26

What is the MR of an accomplice?

Answer 26

Question 27

National Coal Board v Gamble

Answer 27

• it doesn’t matter if they didn’t want or intend for the offence to happen as long as these two were met:

(a) an intention to aid (proved by a positive act of assistance voluntarily done); and
(b) knowledge of the circumstances

• did D with knowledge of the circumstances deliberately did an act or spoke words which amounted to to encouragement etc

Question 28

Garrett v Arthur Churchill (Glass) Ltd and Another

Answer 28

• what if he defendant argues they HAD to do the act of assistance under a contractual obligation
• criminal law takes precedence over civil law

Question 29

How does Johnson v Youden explore the ‘knowledge of the circumstances’ part of the MR?

Answer 29

• they must have intended (known) or contemplated all the elements of the crime committed by principal

Question 30

What about for crimes of strict liabilty where no mens rea need be established for D to be guilty? Where does this leave the accomplice? Does the MR still need to be established?

Answer 30

• Callow v Tillstone
• a shopkeeper was convicted of a strict liability offence of selling meat unfit for human consumption despite having had the meat checked by a vet, who gave him a certificate allowing him to sell it
• the vet, however, was acquitted of the charge of aiding and abetting this offence, as he did not know and had not contemplated that the meat was unfit to eat.
• he had been negligent in his job: he should have realised it but did not. He did not therefore have within his contemplation all the circumstances of the offence, and thus lacked the mens rea of accomplice liability
• so shopkeeper was liable and vet got off free

Question 31

How specific does the knowledge or awareness of the essential elements of the offence need to be?

Answer 31

• as long as the accomplice knows a crime of the type in question was intended
• exact details need not known
• R v Bainbridge confirms that its not enough to show that some kind of illegal act was occur
• a specific offence should be known

Question 32

Maxwell v DPP

Answer 32

• if the D had a range of of offences within their contemplation they were liable for whichever offence the principal chose to commit

Question 33

Can the principal offender and the accomplice have different mens rea? Consider the example:

Abu has paid Okhai £5,000 to inflict serious injury on Tunde, such that Tunde will not be able walk for at least a month. Okhai attacks Tunde but does not want to hurt him badly. He trips him up, and as a result Tunde suffers a badly sprained right ankle but no other injuries. Okhai pleads guilty to an offence under s 47 of the OAPA 1861.

Answer 33

• Abu cannot physically be liable as an accomplice to an offence under s18 of the OAPA as the AR has not occurred
  (wound or GBH)
• he can only be liable for being an accomplice to an offence under s47 of OAPA
• HOWEVER under R v Howe, if the accomplice is had a higher MR than the principal it is possible for the accomplice to be convicted of a higher charge only if the AR is committed
• under R v Gilmour

Question 34

Where two or more people set out to commit an offence (Crime A), and in the course of that joint venture the principal offender (D1) commits another offence (Crime B), what mens rea does the other person (D2) need in order to be guilty as an accomplice to this new offence?

Answer 34

• R v Jogee; Ruddock v The Queen
• must show intent (foresight of what principal offender will do)

Question 35

What if the accomplice has a change of heart? What amounts to a sufficient withdrawal from the plan?

Answer 35

• under R v Becerra
• whether there has been an effective withdrawal will depend on the circumstances of each case but, in simple terms, the more the accused has done to set up the crime, the more they are expected to do to withdraw from it.
• where the alleged withdrawal takes place at the scene of the crime, it would appear that simply urging the principal to leave and departing from a property are insufficient to amount to an effective withdrawal
• some sort of physical intervention needed eg taking knife away
• effective communication needed
• all depends on jury