Ch 15 - Part I - The Law of Complicity

Question 1

Principals and accomplices

Answer 1

> Distinction seems straightforward.
But in DPP v Nedrick-Smith [2006] court appears to become rather confused as to differences between joint principals, joint enterprise, and accessories.

Question 2

Principal - definition

Answer 2

> The principal is the person whose acts or omission amount to the AR of the offence.

Question 3

Accomplice - definition

Answer 3

> The accomplice is a person who aids, abets, counsels, or procures the principal in the commission of the offence.
A.k.a. accessories, secondary parties, or accomplices.

Question 4

Who is the principal?

Answer 4

> Perpetrator of the crime.

>Giannetto good case to explain what prosecution needs to show in order to establish that D is a principal.

Question 5

Who is the principal? R v Giannetto

Answer 5

> R v Giannetto [1997]:
-D made threats to his wife and paid Welch to kill her.
-Prosecution was unable to establish who had killed her.
-Convicted of murder on basis that either he or someone acting on his behalf (maybe Welch) killed her.
-Appealed on basis the judge had failed to indicate jury that they had to be unanimous in deciding whether he was the principal or accessory.
Lord Justice Kennedy:
-Appeal dismissed as “they were entitled to convict if they were all satisfied that if he was not the killer he at least encouraged the killing, and accordingly this ground of appeal fails.
-“There are 2 cardinal principles. The first is that the jury must be agreed upon the basis on which they find a D guilty. The second is that a D must know what case he has to meet.”
-“Where the Crown allege, fair and square, that on the evidence D must have committed the offence either as principal or as secondary offender, and make it equally clear they cannot say which, the basis on which the jury must be unanimous is that the D, having the necessary MR, by whatever means caused the result which is criminalised by the law.”

Question 6

Innocent agent - definition

Answer 6

> An innocent agent is a person whose act causes the harm to V, but who is “innocent”: either because they lack criminal capacity or were unaware of the criminal nature of the act.

Question 7

Doctrine of innocent agency

Answer 7

> Where an innocent agency is involved the principal is the person who ‘causes’ the innocent agent to perform the AR & the innocent agent isn’t guilty of any crime.
Michael 1840: nurse nor child is innocent agency. Didn’t innocent poison (‘medicine’) from mum to baby but left it on side and child then took it and administered to baby.
David Omerod says some crimes can’t be committed through innocent agency, e.g. bigamy & rape.

Question 8

Complicity - definition

Answer 8

> There are 2 primary ways one can be an accomplice:

1. assisting the commission of an offence.
2. encouraging the commission of the offence.

Question 9

Complicity: the actus reus

Answer 9

> SC decision in Jogee 2016 simplified in more modern terminology to the ideas of encouraging and assisting and made it clear that the principles underpinning joint enterprise are the same as those underpinning the other forms of being an accomplice so now joint enterprise is imply one way of assisting/encouraging the commission of an offence.
Section 8 of the Accessories and Abettors Act 1861.

Question 10

Section 8 of the Accessories and Abettors Act 1861

Answer 10

> 3 key points:

1. There must be an offence committed by the principal.
   - However, the new offences in s.44 and s.46 of the Serious Crime Act 2007 mean a person can be guilty of an offence for doing an act capable of giving assistance/encouragement to a crime, even if principal doesn’t go on to commit it.
2. The accomplice is charged with the basic offence. SC explained in Jogee that this was because the accomplice shared in the crime committed by the principal: “even if it was not his hand which struck the blow, ransacked the house, smuggled the drugs or forged the cheque, he has encourage or assisted those physical acts.”
3. Prosecution only need to prove that D was an accomplice - no need to specify in what way.

Question 11

Complicity: the AR - Assisting

Answer 11

> Assisting = offering help/assistance.
Inc. giving equipment (Bainbridge 1960) or information (A-G v Able 1984).
All that is required is that the assistance was of some help to the principal in committing the crime (Bryce 2004).
However, must be of at least come assistance to commission of crime.
Principal needn’t even be aware that they have been assisted.
In Stringer (Ian) 2011, CA rejected argument that act of assistance had to occur at time of crime.
Procuring now regarded as cases of assistance.

Question 12

Complicity: the AR - s. 8

Answer 12

> S. 8 of the Accessories and Abettors Act 1861:
-“Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender.

Question 13

Complicity: the AR - encouraging

Answer 13

> Urge someone to commit offence or simply indicated commission of offence would be desirable.
No need to show the encouragement caused the offence.
Jogee: “Once the encouragement or assistance is proved to have been given, the prosecution does not have to go so far as to prove that it had a positive effect on [P]’s conduct or on the outcome: R v Calhaem [1985]. There might, for example, have been many supporters encouraging [P] so that the encouragement of a single one of them could not be shown to have made a difference. The encouragement might have been given but ignored, yet the counselled offence committed. Conversely, there may be cases where anything said or done by [A] has faded to the point of mere background, or has been spent of all possible force by some overwhelming intervening occurrence by the time the offence was committed. Ultimately it is a question of fact and degree whether [A]’s conduct was so distanced in time, place or circumstances from the conduct of [P] that it would not be realistic to regard [P]’s offence as encouraged or assisted by it.”

Question 14

Complicity: the AR - Joint Enterprise

Answer 14

> Used to be thought they had their own special set of rules however, not they are simply an example of assistance/encouragement.
A joint enterprise involving accessory liability arises where people embark together on the commission of a criminal offence, during which one of them goes on to commit a further offence. The other can be seen as an accomplice to the commission of that further offence.
NB: crime must be committed in the course of or incidental to the original crime (Gnango 2010).
An accomplice can’t be party to a joint enterprise if they join after the principal has committed the crime.
Now that joint enterprise has collapsed into the general law of accessories, it would need to be shown that if A and B were embarking on Crime A together, A was encouraging or assisting B in the commission of the crime.

Question 15

Complicity: the AR - the problem of Gnango

Answer 15

> The fact Jogee, now the leading case on accomplices, doesn’t refer to Gnango 2011 is perhaps indicative of the fact that it raised complex issues which arise from the particular facts of the case.
Q, in brief, for the SC was:
-If (1) D1 and D2 voluntarily engage in fighting each other, each intending to kill or cause GBH and each foreseeing that the other has the reciprocal intention, and if (2) D1 mistakenly kills V in the course of the fight, in what circumstances, if any, is D2 guilty of the offence of murdering V?
A majority (6-1) upheld Gnango’s conviction for murder as an accomplice, but disagreed on the basis.
Approaches:
1. Joint enterprise
2. Accessory
3. G as a principal
4. G is not guilty in relation to murder

Question 16

Complicity: the AR - the problem of Gnango - joint enterprise approach

Answer 16

1. G and BM jointly engaged in a crime of affray.
2. SC and CA rejected this approach.
3. Weakness is that BM and G were not acting jointly in the affray as they were fighting each other, not embarking on an enterprise together. They weren’t acting in concert, but against each other.

Question 17

Complicity: the AR - the problem of Gnango - accessory approach

Answer 17

1. By in engaging in a gun fight with BM, G had encouraged BM to fire at him. BM guilty of murder under doctrine of transferred malice and G was liable as an accomplice to that murder as he had encouraged BM to act in that way.
2. Rejected by CA but accepted by SC by 4 (if not 6) of the majority.
3. One problem with approach was that G hadn’t encouraged BM to shoot at him.
   - Difference between encouragement and provocation.
   - Critics note that if BM had shot G, we would surely have said G encouraged his on murder so shouldn’t make a difference if act had an unexpected result of killing V.
   - Richard Buxton suggests G’s participation in shoot-out was “egging BM to respond”.

Question 18

Complicity: the AR - the problem of Gnango - G as principal approach

Answer 18

1. G caused BM to fire back at him and thereby causes V’s death. G liable as a principal or joint principal.
2. Put forward by Lords Brown and Clarke in SC as an alternative justification for conviction.
3. Lords Dyson and Kerr argued doctrine of novus actus interveniens meant that the free voluntary informed act of BM broke the chain of causation. But given Lord Dyson still felt this analysis was possible, suggests its a fatal argument.

Question 19

Complicity: the AR - the problem of Gnango - G not guilty in relation to murder

Answer 19

> Although G may be guilty of affray & attempted murder of BM he wasn’t responsible for BM’s murder of V. It wasn’t act he encouraged or caused.
Lord Kerr dissenting judge in SC.
Majority concluded that if Gnango wasn’t guilty in relation to the killing it would seem contrary to the common sense of justice.

Question 20

Complicity: the AR - the problem of Gnango - Findlay Stark

Answer 20

> There is not one approach, then, in Gnango which received universal acclaim by the majority judges.
Seems that the secondary liability basis for upholding Gnango’s murder conviction presumably ‘wins’, but only by the slimmest of margins (on one view, 4:3).

Question 21

Complicity: the AR - the problem of Gnango - conclusion

Answer 21

> View that Gnango was guilty of murder as an accomplice which has most support.
SC struggles as they were too compartmentalised?
It wasn’t necessary to precisely identify the nature of the accompliceship here given the close connection he had to the killing.

Question 22

Complicity: the AR - omissions and accomplice liability

Answer 22

> Jogee - simply being present at the scene of a crime does not on itself render you guilty as an accomplice.
No duty to intervene and stop crime taking place.
Clarkson 1971: Not accomplice to rape when he came across man committing rape and simply watched.
Willett 2010: simply being present in a car when driver drives over V is insufficient to make you an accomplice.
This is part of the general rule that omissions don’t form the basis of criminal liability.
There are exceptions.

Question 23

Complicity: the AR - omissions and accomplice liability - circumstances in which mere presence can render a person an accomplice.

Answer 23

1. Police officer request citizen to assist in suppression of a breach of peace (Brown).
2. If under normal law on omissions you are under a duty to protect a person in peril and fail to do so you can be guilty of an offence.
3. Where a person has a legal power to intervene to prevent a crime and fails to so they may be responsible as an accessory. E.g. in Rubie v Faulkner 1940, driving instructor convicted as an accessory to a dangerous driving offence after failing to intervene to prevent his pupil driving dangerously.
4. If the person’s presence effectively encourages P then this may amount to being an accessory, but only if the accomplice is aware that P is encouraged by their presence (Tait 1993).

Question 24

Complicity: the AR - omissions and accomplice liability - circumstances in which mere presence can render a person an accomplice - If the person’s presence effectively encourages P then this may amount to being an accessory

Answer 24

> R v Robinson (Denis): standing by ready to help P if necessary could certainly amount to encouragement.
Lordships in Jogee:
-“Most people are bolder when supported or fortified by others than they are when alone. And something done by a group is often a good deal more effective than the same thing done by an individual.”
Francom 2001: given length of time D present in flat whilst V was tortured, jury was entitled to infer that D’s presence encourage the principals.
Harder cases are where a group watch an illegal fight or concert.
‘Happy slapping’.
R v Daley seems to present the limits as to when presence can create liability.

Question 25

R v Daley

Answer 25

> 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].

Question 26

Mens Rea For Accomplices: Definition

Answer 26

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

Question 27

Mens Rea For Accomplices: General principles

Answer 27

> 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.

Question 28

Mens Rea For Accomplices: Jogee - facts

Answer 28

> 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.

Question 29

Mens Rea For Accomplices: Jogee - judgment

Answer 29

> 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.”

Question 30

Mens Rea For Accomplices: Jogee - summary

Answer 30

> 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.”

Question 31

Mens Rea For Accomplices: Intent general

Answer 31

> 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.

Question 32

Mens Rea For Accomplices: Conditional Intent

Answer 32

> 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.”

Question 33

Fundamentally different acts

Answer 33

> 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.

Question 34

Mens Rea For Accomplices: Range of Offences

Answer 34

> 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.”

Question 35

The Relevance of the MR of the Principal

Answer 35

> 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.

Question 36

Summarising the current law on accessories

Answer 36

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]:

Question 37

David Ormerod and Karl Lard analyse in ‘Jogee: Not the End of a Legal Saga But the Start of One?’ [2016] - overview

Answer 37

> 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.

Question 38

David Ormerod and Karl Lard analyse in ‘Jogee: Not the End of a Legal Saga But the Start of One?’ [2016] - knowledge or intention?

Answer 38

> 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.

Question 39

David Ormerod and Karl Lard analyse in ‘Jogee: Not the End of a Legal Saga But the Start of One?’ [2016] - what does ‘intention’ mean in this context?

Answer 39

> 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.

Question 40

David Ormerod and Karl Lard analyse in ‘Jogee: Not the End of a Legal Saga But the Start of One?’ [2016] - directing the jury?

Answer 40

> 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.

Question 41

David Ormerod and Karl Lard analyse in ‘Jogee: Not the End of a Legal Saga But the Start of One?’ [2016] - the underlying principle - whether there ought to be parity between the accessory and the principal

Answer 41

> 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.

Question 42

Secondary Participation & Inchoate Offences

Answer 42

> 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.

Question 43

Conviction of secondary party and acquittal of principal

Answer 43

> 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.

Question 44

Can a secondary party ever be guilty of a greater offence than the principal?

Answer 44

> 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.

Question 45

Withdrawal by a secondary party - overview

Answer 45

> 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/

Question 46

Withdrawal by a secondary party - R v Rook

Answer 46

> 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.

Question 47

Withdrawal by a secondary party - exceptions

Answer 47

> 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.

Question 48

Accessories and Victims

Answer 48

>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?

Question 49

Assistance after the offence

Answer 49

> 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.