Ch 15 - Part I - The Law of Complicity Flashcards

Question

R v Daley

Answer 1

>R v Daley [2015]: -D knew friend had loaded gun with him and had travelled by car to where friend shot V dead. -Appeal turned on whether D's presence with his friend was sufficient to amount to liability? >Lord Justice Hallett: -"Knowingly and voluntarily aligned himself with the gunman." -"Arrived on same street within a matter of seconds or minutes of V and they ensured the murder scene was free from potential witnesses." -"Both went to some lengths to cover their tracks." -"Further we reject the assertion that the principle of parasitic accessory liability should not be applied to cases involving possession of deadly weapons." -"On the jury's verdict the appellant lent himself to a criminal enterprise knowing a lethal weapon was to be carried and foreseeing it might be used to murder, as it was, in his presence." >As Daley had foreseen Thomas might kill, he had MR of murder although following Jogee it would now need to be shown that Daley had intended to assist Thomas in the killing. >Interestingly, what seems to have caught the particular attention of the court was that Daley had associated himself with Thomas and they were working as a team. Perhaps this was key point behind the conviction. Similar in Giedraitis [2016].

Answer 2

>MR requirement for an accomplice is that they do their acts of assistance intending to assist the principal in the commission of the offence.

Answer 3

>Law on MR for accomplices unclear for a long time however, SC in Jogee has now provided authoritative guidance. >Rejects the complex & sometimes contradictory approaches taken in previous cases.

Answer 4

>R v Jogee [2016]: - D convicted of murder of V as V was stabbed to death by Hirsi. - D told Hirsi 'to do something' to V and after D threatened V with the bottle, Hirsi stabbed him.

Answer 5

>Lord Hughes and Lord Toulson (with whom Lord Neuberger, Lady Hale & Lord Thomas agreed): - "Requisite conduct element is that D2 has encouraged or assisted the commission of the offence by D1." - "The mental element in assisting or encouraging is an intention to assist or encourage the commission of the crime and this requires knowledge of any existing facts necessary for it to be criminal" - "If the crime requires a particular intent, D2 must intend to assist or encourage D1 to act with such intent. - "There can be cases where D2 gives intentional assistance or encouragement to D1 to commit an offence and to act with the mental element required of him, but without D2 having a positive intent that the particular offence will be committed. This may be so, for example, where at the time that the encouragement is given it remains uncertain what D1 might do; an arms supplier might be such a case." - If encourages "D1 to commit one of a range of offences... D2 does not have to 'know' (or intend) in advance the specific form which the crime will take." - "Secondary liability does not require the existence of an agreement" - D2 liable for intended act not an act that goes beyond. - "In cases of secondary liability arising out of a prior joint criminal venture, it will also often be necessary to draw the jury's attention to the fact that the intention to assist, and indeed the intention that the crime should be committed, may be conditional." - Ask "jury whether they are sure that D1's act was within the scope of the joint venture, that is, whether D2 expressly or tacitly agreed to a plan which included D1 going as far as he did, and committing crime B, if the occasion arose." - "In cases where there is a more or less spontaneous outbreak of multi-handed violence, the evidence may be too nebulous for the jury to find that there was some form of agreement, express or tacit." - "If a person is a party to a violent attack on another, without an intent to assist in the causing of death or really serious harm, but the violence escalates and results in death, he will not be guilty of murder but guilty of manslaughter. So also if he participates by encouragement or assistance in any other unlawful act which all sober and reasonable people would realise carried the risk of some harm (not necessarily serious) to another, and death in fact results... the test is objective." - "He need not encourage or assist a particular way of committing it, although he may sometimes do so." - "Where the offence charged does not require MR, the only MR required of the secondary party is that he intended to encourage or assist the perpetrator to do the prohibited act, with knowledge of any facts and circumstances necessary for it to be a prohibited act: National Coal Board v Gamble."

Answer 6

>MR: -A must intend to assist or encourage P to commit the crime (including that the principal has the necessary MR). -It must be shown A intended to assist P. -Merely foreseeing that the act will assist or encourage the principal is not enough on its own to establish the MR. However, it can be used as evidence of intent. -As Hallett LJ in Haynes 2019 put it in the CA: "Proof of foresight, as we now know, does not in itself suffice to prove the intent for murder, but it remains good evidence of intent post the Jogee judgment."

Answer 7

>There's been debate over whether or not accessory law uses the Woollin test that is used for the normal law of intent. -I.e. jury is entitled to find intent if D foresaw the result as a virtual certainty and the result was in fact virtually certain. >Krebs suggests that may be helpful to ask whether A has endorsed what P has done. >Antje Pedain: "If intending something means to endorse it as consequence of one's voluntary actions, then the issue is not about whether you endorse it as the certain, the likely, or the unlikely consequence of your behaviour. It is about endorsement as such. The point is whether you give that consequence your blessing." >Where the offence involves doing an act in particular circumstances the jury should ask whether D 'knew the essential matters of the offence.' (O'Neil v Gale 2013). >Knowledge here includes a D who deliberately shuts their eyes to the circumstances. >It must be shown that A intended to help P commit the offence, with P having the MR required.

Answer 8

>SC confirmed in Jogee that at accomplice could have necessary intent on notion of 'conditional content.' >E.g. A intends to assist P in killing if the conditions require it. >Especially helpful in a case involving gangs. >Jogee: -"If the jury is satisfied that there was an agreed common purpose to commit crime [X], and if it is satisfied also that [A] must have foreseen that, in the course of committing crime [X], [P] might well commit crime [Y], it may in appropriate cases be justified in drawing the conclusion that [A] had the necessary conditional intent that crime [Y] should be committed, if the occasion arose." >Problematic idea as there's a fine line between saying that you foresaw something and saying you intended to help if necessary. >What seems to be required is that A either wants P to commit the offence, or at least is keen to help P even if P commits the offence. >In Anwar 2016 (after Jogee), CA said that for A to be guilty recklessness (mere foresight of what P might do) is not enough and there must be intent: -"It is not sufficient that [A] foresaw [P] might intentionally cause GBH or kill if the circumstances arose. What is now required is that D2 intended that D1 cause GBH or kill if the circumstances arise."

Answer 9

>Most difficult cases on accessories are those where the crime P commits differs from that which A intended. >Law seeks to draw a line between trivial ad fundamental differences. >Both AR and MR can differ. >Jury left to determine whether it's fundamentally different. >Weapons usually enough evidence. >Tas [2018]: -Where there was an "overwhelming supervening event which is of such a character as could relegate into history matters which would otherwise be looked on as causative (or, indeed, withdrawal from a joint enterprise) rather than mere escalation which remained part of the joint enterprise." >There is confusion over this comment: -Unclear whether concerns AR or MR. -Reflects a major theoretical issue about the theoretical basis for accessory liability: is A liable for causing P to commit the offence; or is A liable for authorising P to commit the offence? -Seems can be relevant either way so if the act is an overwhelming supervening event than A can claim either there was no AR and/or there was no MR. >Also important to appreciate that if P does a fundamentally different act, that doesn't mean A isn't guilty. >In Jogee their Lordships said that in cases of a physical attack it might be simpler for the jury to ask whether A intended V to suffer the injury. >However, questionable.

Answer 10

>Jogee: - "With regard to the mental element, the intention to assist or encourage will often be specific to a particular offence. But in other cases it may not be." - "It is enough that the offence committed by DQ is within the range of possible offences which D2 intentionally assisted or encouraged him to commit."

Answer 11

>What if A intends to help P, believing P will have one MR, but in fact P acts with a different one? >Jogee: -"If a person is party to a violent attack on another, without an intent to assist in the causing of death or really serious harm, but the violence escalates and results in death, he will be not guilty of murder but guilty of manslaughter." >Treat quote with care as if fundamental difference then A won't be guilty at all.

Answer 12

1. AR of being an accessory is assisting or encouraging the principal's offence. 2. MR is that D intended to assist or encourage the commission of the offence by the principal, including that the principal has the necessary MR. >Still difficulties which David Ormerod and Karl Lard analyse in 'Jogee: Not the End of a Legal Saga But the Start of One?' [2016]:

Answer 13

>Resolving the intention/foresight conundrum: i) Knowledge or intention? ii) What does 'intention' mean in this context? iii) Directing the jury? iv) The underlying problem of principle - whether there ought to be parity between the accessory and the principal.

Answer 14

>How does one reconcile the requirement for D to have 'intention' to assist or encourage P to commit the crime with intent with the stated requirement for D to 'know' any existing facts necessary for P's act to be criminal. >Knowledge and intention are often wrongly regarded as synonymous in criminal law. Knowledge speaks to the present and intention to the future. >Since what is being debated is the accessory's MR as to what P will or might do in the future, the language of intention is, we suggest, more accurate. >If intention is the correct test then foresight can have a role to play as a matter of evidence in establishing that substantive requirement. If the requirement is one of knowledge, strictly speaking, then foresight cannot assist; D cannot know the future no matter what he foresees.

Answer 15

>Should the jury be directed that they must be sure D possessed a high level of foresight before they will be entitled to infer that D possessed the necessary intent? >Crucially, there is no explicit statement as to what threshold D must possess before jury will be entitled to infer that he possessed the requisite intention. >The failure to specify whether there needs to be the slightest or a high level of foresight, and so failure to specify what intention means in this context could lead to difficulty. >Unclear if SC meant for Woollin direction to apply. >HoL in Woollin did expressly state that its decision applied only to murder and didn't state whether it extended to accessorial liability. >Indeed, Lord Steyn prefaced his judgment in Woollin by remarking that intention doesn't necessarily have same meaning in every context of criminal law. >3 issues arising from uncertainty around foresight & intention: 1. Unclear how judges are to direct juries on the law. Different judges may direct juries in different ways. 2. As a matter of principle, there is lack of clarity on whether there ought to be parity as to the level of foresight required of the principal and the accessory. 3. Without speedy resolution by the CA there is the danger that the debate HoL sought to put an end to in Woollin will be replayed which would be undesirable as the law would be thrown into a state of confusion.

Answer 16

>Deeply undesirable for a practice to develop whereby different trial judges direct different juries that differing thresholds of foreseeability apply when interpreting the same term in the same allegation. >Would adopting 'golden rule' proposed by Lord Bridge in Moloney work? So jury told that intention is an ordinary English word and jury need no elaboration unless necessary. Not directing jury on foresight from the outset seems to run counter to the tenor of the judgment in Jogee. >Alternatively, use a test not concerned about the objective likelihood in fact of whether the principal would intentionally kill or cause GBH, but whether D had the requisite MR.

Answer 17

>What is the definition of MR for an accessory to murder & does it differ from the definition that applies when considering the liability of the principal? >Could make it easier to convict the secondary party than it would be to convict the principal. >One of main crticisms leveled at the law on joint enterprise was the fact a lower MR threshold applied to the accessory as opposed to the principal, which meant that he was convicted despite not necessarily having demonstrated any of the culpability or wrongdoing of the principal. >Although judge would be directing jury that the same MR (intention) applies to both the principal & accessory, as a matter of substance a different threshold of foresight would suffice for guilt, depending upon whose liability was being considered. >In Jogee, the SC held that it was anomalous to require a lower mental threshold of guilt in the case of the accessory then in the case of the principal. This was catalogued as one of the factors that justified the court departing from Chan Wing-Diu. Although not decisive, this strongly suggests the SC sought to impose the same mental threshold upon both the accessory and the principal.

Answer 18

>The following statements summarise the interrelation of accomplice and inchoate offences: 1. It is an offence to conspire or attempt to commit an offence. 2. It is not an offence to attempt to aid, abet, counsel, or procure. 3. It is not an offence to conspire to aid, abet, counsel, or procure. 4. It is an offence to aid, abet, counsel, or procure an attempt to commit an offence.

Answer 19

>Even if principal has been acquitted it may still be appropriate to convict the accomplice. 1. Principal acquitted as insufficient evidence they committed the offence but as long as it is clear that someone committed the offence and the accomplice aided then the accomplice can be convicted. 2. Even if principal is acquitted because he lacked MR the accomplice can still be convicted. E.g. Cogan and Leak [1976], Millward [1994]. 3. If principal has been acquitted because there's no evidence the AR was performed then no one can be convicted as an accomplice. 4. If the principal is acquitted as they have a special defence. E.g. in Bourne, D convicted of abetting his wife even though wife never charged and had she been charged she was likely to be acquitted on the defence of coercion (no longer a defence). 5. If principal has been convicted of an offence which the accessory couldn't have committed, the accessory can still be convicted.

Answer 20

>What is the position if the accomplice has a more serious MR than the principal? -Lord Mackay in Howe [1987]: "I would affirm [the] view that where a person has been killed and that result is the result intended by another participant, the mere fact that the actual killer may be convicted only of the reduced charge of manslaughter for some reason special to himself does not, in my opinion in any way, result in a compulsory reduction for the other participant. >Glanville Williams suggests such cases should be regarded as examples of a 'semi-innocent agent' (although Kadish argues that this terminology only adds to the mystery). >The reasoning in Richards [1974] that the accomplice couldn't be convicted of a more serious offence than that committed by the principal, was rejected in Howe.

Answer 21

>What if accomplice changes his mind and seeks to cease to be part of the criminal enterprise? >Necessary to withdraw before offence committed and something must be done to withdraw from enterprise - a change of heart wouldn't suffice because MR occurs at time of act of assistance, not at time principal commits the offence. >Becerra (1975): the overarching test is that the communication of withdrawal must "serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw." >R v Gallant [2008]: if D was the instigator of a gang's attack he may have to do more to demonstrate withdrawal than a peripheral gang member. >Otway [2011]: To withdraw, D doesn't actually have to try & prevent the crime occurring. >Rook = key case/

Answer 22

>R v Rook [1993]: -A man hired 3 men, including the appellant (D) to kill his wife. -On the day itself D did not turn up, the wife was killed by the other 2 men. -D was convicted for murder as part of a joint enterprise, he had assisted and encouraged the crime. -D gave evidence that he never intended to kill the wife, that his plan was to take the money and disappear. >Lord Justice Lloyd: -Quote from Whitehouse 1941 = "What is 'timely communication' must be determined by the facts of each case but where practicable and reasonable it ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw." -Becerra 1976 = the words "Come on let's go" and sudden departure from crime scene were insufficient to communicate withdrawal. -In present case, "his absence on the day could not possibly amount to 'unequivocal communication' of his withdrawal." -Didn't make it clear to others so "the minimum necessary for withdrawal from the crime was not established on the facts." -"Unnecessary for us to consider whether communication of his withdrawal would have been enough, or whether he would had to take steps to "neutralise" the assistance he had already given." >Appeal dismissed.

Answer 23

>Where defence of withdrawal succeeds, accused may still be guilty of an offence under the Serious Crimes Act 2007. >Different rules seem to apply where accessory & principal have joined together simultaneously to commit a crime: -In Mitchell [1999], CA held that where a group simply spontaneously attacks someone it is sufficient to withdraw, simply to walk away; there is no need to communicate a withdrawal. >However, Robinson restricted Mitchell to the facts of its case. >O'Flaherty [2004]: CA suggested that it was for jury to consider whether the 2nd attack was in reality a continuation of the first, or a separate incident. However, they suggested the jury's main focus should be on whether D has disengaged himself from the gang by the time the 2nd attack took place by making an effective withdrawal.

Answer 24

``` >Where a provision in statute is designed to protect a class of persons it may be construed as impliedly excluding their liability as an accessory. >More controversial is where one adult encourages another adult to cause him ABH (e.g. sadomasochistic activity). C the 'victim' here be convicted of aiding and abetting the offence against himself? ```

Answer 25

>There are a no. of offences which are committed by those who assist a person after they have committed an offence. >E.g. accept money/other benefits for not passing on info which would have secured prosecution/conviction of an offender. >E.g. impeding apprehension of an arrestable offender.

Ch 15 - Part I - The Law of Complicity Flashcards

(49 cards)