Attempts and Accomplice Liability

Question 1

R v Jones

Answer 1

Defendant was in a relationship with the victim, who broke up with him; later brought a shotgun, got into the victim’s car when she dropped off her daughter at school and took out the gun to shoot; victim manages to wrestle and avoid being shot; convicted of attempted murder.
RAITO:
C of A held that there was sufficient evidence to go to the jury to decide on whether there was an act that was more than merely preparatory to the commission of the offence when pointed loaded gun.
From the moment a gun is pointed at the victim and onwards, a defendant will be considered to have taken steps that are more then merely preparatory.
C of A approved judgment in Gullefer – where Lord Lane said the AR of attempt “begins when the merely preparatory acts have come to an end and the D embarks upon the crime proper. When that is will depend of course upon the facts in any particular case” – look at what D has done and what else he needs to do to ocmit the offence. If judge satisfied more than merely preparatory then question for jury

Question 2

R v Gullefer

Answer 2

Defendant was betting at a greyhound track; realized his dog wasn’t going to win the race and ran onto the track so that the race would be declared void and he would get his money back; held to be not guilty of attempted theft because his actions until that moment were merely preparatory (had not yet asked for his money back)
RATIO:
The AR of attempt begins ‘when the merely preparatory acts have come to an end and the defendant embarks upon the crime proper. When this is will depend… upon the facts of the case’.

Question 3

R v Whybrow

Answer 3

Defendant wired up a soap dish to electricity supply in order to electrocute and kill his wife; held that only an intention to kill would suffice for attempted murder, even if for actual murder an intention to cause GBH would suffice.
RAITO:
When dealing with a result crime, the defendant must intend the prohibited result even if a lesser MR would suffice for the full offence.

Question 4

R v Millard and Vernon

Answer 4

Defendant charged with attempted criminal damage; held that recklessness was insufficient even though this would suffice for actual criminal damage charge.
RAITO:
Only intention to commit the offence is sufficient in cases of attempts, even if recklessness is sufficient for the MR of the actual offence itself.

Question 5

R v Khan

Answer 5

Defendant attempted to have sexual intercourse with a girl without her consent, but failed; held recklessness as to her consent was sufficient for charge of attempted rape
RATIO
With regards to attempted rape, the defendant must intend sexual intercourse either knowing of the lack of consent or being reckless as to the other’s consent, as for the full offence of rape.

NB: case was prior to Sexual Offence Act 2003 – no case law but it is submitted that principles are likely to be unchanged. The mens rea of the full offence of rape under the 2003 Act is an intention to penetrate and a lack of reasonable belief in consent. If the principle of Khan is followed, this will also be the mens rea of attempted rape.

Question 6

R v Shivpuri

Answer 6

Defendant arrested carrying a package from India he believed contained either heroin or cannabis; in fact the substance was harmless and not an illegal drug; H of L held to be guilty of attempt to deal and harbour drugs; impossibility of offence is irrelevant.
RATIO:
Any attempt to commit an offence carries liability if the defendant intended to carry out the substantive offence and did an act that was more than merely preparatory, even though completion is impossible.

Question 7

R v Tyrrell

Answer 7

Defendant convicted as an accomplice to a sexual offence committed against her; quashed because the offence committed by the principal offender (engaging in sexual intercourse with a girl under 16) was designed to protect her
RAITO:
A person cannot be an accomplice to a crime created to protect them.

Question 8

Garrett v Arthur Churchill (Glass) Ltd and Another

Answer 8

Defendant purchased an antique glass goblet on behalf of a client; client paid defendant for the goblet and defendant handed it over knowing the client was going to attempt to export it without the required license; defendant argued he was merely fulfilling a binding contractual obligation and a refusal to comply would render him in breach of contract; found guilty
RAITO
Criminal law takes precedence over civil law; a defendant should refuse to comply with his contractual obligation if he knows that in doing so he would be assisting a crime.

Question 9

R v Clarkson

Answer 9

Defendant watched as a woman was raped 3 times, although there was no evidence that he encouraged the action.
RATIO:
Mere presence at the scene of a crime is not in itself sufficient to amount to the AR of being an accomplice.

Question 10

Attorney General’s Reference No 1 1975

Answer 10

Defendant spike a friend’s drinks with alcohol knowing the friend would shortly afterwards be driving home; friend was convicted of drunken driving; defendant accused was charged as an accomplice to this offence.
RATIO:
4 words were to be given ordinary meanings as outlined.
There is usually a mental link (i.e a meeting of minds between principal and accomplice) in cases where it is alleged that the accomplice has aided, abetted or counselled the principal. Where it is alleged that the accomplice has procured the commission of a crime, there is not need for a mental link. Procuring means producing by endeavour i.e setting out to ensure that something happens and taking the appropriate steps to achieve that happening.

Question 11

Wilcox v Jeffrey

Answer 11

Defendant met an American musician at the airport, bought a ticket for an illegal performance of a concert and attended it; held to have encouraged the commission of the offence and was an accomplice to the illegal performance.
rATIO:
Paying to attend an illegal event can amount to encouragement of the crime and so establish the AR of accomplice liability.

Question 12

Du Cros v Lambourne

Answer 12

Police stopped a car for dangerous driving, unable to determine whether the defendant had been the driver or the passenger in the vehicle (which belonged to the defendant); convicted nonetheless because if he was not the principal offender he was an accomplice.
rATIO
Remaining silent or failing to intervene where there is a right or duty to control the principle offender can amount to encouragement.

Question 13

Tuck v Robinson

Answer 13

Licensee of a public house allowed his customers to drink after hours; held to be an accomplice to the offence of drinking after hours as he had the right/duty to stop them
Ratio:
Remaining silent or failing to intervene where the defendant has a right to control the principle offender can amount to encourangment

Question 14

R v Russel and Russel

Answer 14

Failure of one parent to intervene to protect his child from ill-treatment by the other parent amounted to encouragement
RAITO:
Remaining silent or failing to intervene where there is a duty to control the principal offender can amount to encouragement – this includes where one parent fails to intervene to protect his child from other parent.

Question 15

R v Gnango

Answer 15

A man pulled out a gun and began firing at defendant, who returned fire; passer-by fit in the head by a bullet from the man’s gun and was killed; defendant convicted of murder, quashed on appeal, restored by Sureme court.
RATIO
A defendant who aids, abets, counsels or procures another to shoot at him is guilty of the attempted murder of himself. A defendant can be regarded as a principal to a joint enterprise to engage In unlawful violence specifically designed to cause death or serious injury from which death has resulted.

Question 16

R v Calhaem

Answer 16

D hired a man to kill her love rival; hit man claimed he had no intention of killing woman but wen along to the house to make it look like he did; at house intended victim scream and hit man went berserk and killed her; defendant denied she was an accomplice to the murder arguing her counselling had not cause the hit man to commit the offence.
RATIO:
No need for a causal link in cases where the allegation is that the accomplice counselled the principal. There is no need to establish that the D’s acts or words had been a substantial cause of the crime and the fact that the killer may have carried out the offence regardless of the D’s encouragement is irrelevant

Question 17

R v Dias

Answer 17

Victim injected himself with drugs supplied by the defendant; defendant charged as an accomplice to a charge of constructive manslaughter; held that he could not be an accomplice as victim had not carried out the AR of the act
RAITO
For a defendant to be guilty of accomplice liability, the AR of the crime must be committed by a principle offender.

Question 18

R v Cogan and Leak

Answer 18

L convinced C to have sex with his wife, telling him that if she struggled or resisted it was evidence of her enjoyment (untrue); C convicted of rape but acquitted because he honestly believed she consented; L appealed on basis there was no principal offence to which he could have been an accomplice; held that AR of rape had been committed by C while L had knowledge of her lack of consent, therefore this was sufficient to make her an accomplice; alternatively C was an innocent agent through whom L had committed the offence of rape.
rATIO
A defendant can still be convicted of accomplice liability despite the principal offender raising a successful defence as long as the AR of the crime is committed. Alternatively, the court may find that the defendant committed the main offence through an innocent agent.
Note: this last part of the decision regarding innocent agent was criticized, arguing that sexual offences by their nature require personal involvement therefore the principle of innocent agent should not apply (R v Bourne)

Question 19

R v Bourne

Answer 19

defendant forced wife to commit act of burglary with a dog; she was found not guilty as she raised defence of duress; Defendant charges as an accomplice, the allegation being that he had procured the commission of the offence through his wife, and not as a principal offender acting through an innocent agent.
RAITO
In cases involving sexual offences, the appropriate charge is that of acting as an accomplice having procured the commission of the offence, rather than a charge of being a principal offender acting through an innocent agent.

Question 20

Callow v Tillstone

Answer 20

A butcher was convicted of selling unfit meat despite the fact that he had had the meat certified as safe by a vet before the sale; conviction was upheld as the offence was one of strict liability and it mattered not how diligent he had been to ensure the safety of the meat; vet not found guilty of accomplice liability because lacked the MR
RATIO
To be guilty of accomplice liability, it is necessary to establish MR even in cases where the accused faces a charge of being an accomplice to a crime of strict liability.

Question 21

R v Howe

Answer 21

2 young men (18 and 19) were acting under order the orders of an older man; under his instructions tortured and killed 2 victims, while the 3rd intended victim managed to run away
RAITO
If an accomplice has a higher MR than the principal, it is possible for the accomplice to face a more serious charge than that of the principle as long as the AR of the offence is committed.

Question 22

National coal Board v Gamble

Answer 22

Lorry filled with coal was driven onto a weigh-bridge; operator (employed by the National Coal Board) weighed the load and found it to be nearly 4 tons overweight; driver said he would risk taking the overload so operator gave him a weigh-bridge ticket allowing him to drive over; when driver stopped by the police, the National Coal Board was charged with aiding and abetting the firm in the commission of the offence
RATIO
There are 2 elements to the MR of an accomplice – intention to aid and knowledge of the circumstances.
Confirmed that the fact that the D may not have wanted or intended the offence to occur or not have intended to assist in the commission of the offence was immaterial to liability

Question 23

R v Becerra

Answer 23

Accomplice wanted to withdraw; told the principal ‘ come on, let’s go’ and left through the window; held to be insufficient to amount to withdrawal once they were already at the scene of the crime
RAITO:
Effective withdrawal by the accomplice is a question of fact in each case; there is a stage at which nothing less than physical intervention to prevent the crime suffices and simply urging the principal to leave and departing from a property are insufficient to amount to withdrawal. One essential element is effective communication of the decision to withdraw.

Question 24

R v Grundy

Answer 24

Alleged accomplice provided information to principal and then spent 2 weeks trying to persuade him not to commit the crime
RAITO
C of A – defence of withdrawal should have been left to the jury. Words alone may suffice where the withdrawal takes place before the crime occurs.

Question 25

Johnson v Youden

Answer 25

2 defendant were charged with aiding and abetting a builder in selling a house at a price which was over the legal limit, this violating a strict liability statue; argued that they did not know that the builder was charging over the legal limit, so they could not be held liable
RATIO
Knowledge of the circumstances means that the defendant must have had within his contemplation all the circumstances of the principal offence; he must have known or suspected that certain things would or might happen to constitute the AR of an offence
NOTE: he did not have to know that a crime had been committed because he may not know the facts constitute an offence and ignorance of the law is not a defence.

Question 26

R v Bainbridge

Answer 26

Defendant had supplied oxygen cutting equipment to principal offenders; they used this to break into a bank; defendant had been aware the equipment was to be used for breaking into some sort of premises; found guilty even though he did not know the exact details
RATIO
C of A - An accomplice must know that a crime of the type in question was intended. While the details need not be known, awareness that some form of illegal act would be committed is insufficient, the accomplice must have a specific type of offence within his contemplation.

Question 27

Maxwell v DPP Northern Ireland

Answer 27

Defendant showed other members of the Ulster Volunteer Force the way to a particular pub, where the principal offenders threw in a pipe; argued he did not know exactly what the principle offenders were going to do and thus lacked the necessary MR; held that being a member of the organization, he knew that he was taking part in an attack either on the pub or on the people therein and that the weapon or weapons to be used must have been in the car he was guiding.
RAITO
If a defendant, charge as an accomplice, had a range of offences within his contemplation, he is liable for whichever of those offences the principal chose to commit.

Question 28

R v Slack

Answer 28

Defendant and another man went to the flat of an elderly widow with the intention of robbing her; in the course of the robbery B murdered the widow with a knife given to him by the defendant; defendant argued he thought his partner was only going to use the knife to threaten her.
RAITO
An accomplice will be liable if he has tacitly agreed to the commission of the offence, or if he has ‘lent himself’ to the commission of that offence

Question 29

R v Lovesey and Peterson

Answer 29

Gang executed a plan to overpower a jeweller and steal his more valuable stock; after robbery, jeweller was found dead; held to be guilty of his death despite the fact that it was an accident, as death was a possible outcome to the agreed use of violence
RATIO
All co-adventurers i.e principal and accomplice, are liable for the unexpected consequences of carrying out a plan.

Question 30

R v Jogee

Answer 30

Jogee (d2) and the principal, Hirsi (d1), twice visited the house of Naomi Reid NR who was in a relationship with Paul Fyfe (PF) NR then sent a text to D2 asking him not to bring D1 back to her house. However, D1 and D2 returned to NR’s house, by which time PF was home. PF, D1 and D2 had an angry exchange. D2 stood outside, shouting encouragement to D1 whilst D1 stabbed and killed PF
RAITO
What happens where D2 assists or encourages D1 to commit C1 but D1 commits C2? To be an accomplice to C2, D2 must 1) intend to assist or encourage 2) acting with the circumstances of C2 in contemplation. Foresight of C2 is evidence of 2) but no more.

Question 31

R v Gilmour

Answer 31

• Where the accomplice assists the principal and has full contemplation of it but a different intent, there is no reason why he shouldn’t be liable for ‘degree of offence appropriate to intent with which he acted’

Question 32

R v English

Answer 32

Defendant and another man attacked a police officer with wooden posts; police officer died from fatal stab wounds inflicted by the other man; defendant unaware that the other man had a knife
RATIO
If the accomplice foresees that the principal might intentionally cause GBH (but not kill) but the principal has caused GBH in a way fundamentally different from that foreseen by the accomplice (i.e by using a different weapon) the accomplice will have no liability for the outcome.
even if foresaw principal may intentionally kill (R v Rahman)