Chapter 15 - The Scope of Criminal Liability - Secondary Participation

Question 1

What are the different parties to a crime?

Answer 1

• Principal offender: The person who commits the actus reus elements of a substantive criminal offense.
• Co-principals: When two or more people commit an offense together.
• Accomplices: Those who assist in the commission of an offense in some way, whilst not committing the actus reus of the offense themselves.

Question 2

Can someone be charged as a principal offender if they used an innocent agent to commit a crime?

Answer 2

Yes. A person can also be charged as a principal offender where they have used an innocent agent to commit the actus reus of an offense.

Question 3

What is the legal basis for accomplice liability?

Answer 3

The criminal liability of accomplices is laid down in statute. Under s 8 of the Accessories and Abettors Act (AAA) 1861, it is provided that: “Whosoever shall aid, abet, counsel or procure the commission of any indictable offence … shall be tried, indicted and punished as a principal offender.”

Question 4

How are accomplices punished?

Answer 4

The law regards a person who assists in the commission of an offense to be as culpable as the person who commits the crime. Conviction as an accomplice will attract the same powers of punishment as the principal offender.

Question 5

What are the four ways an accomplice may satisfy the actus reus of accomplice liability?

Answer 5

According to the statute, an accomplice may satisfy the actus reus of accomplice liability in four different ways:
* Aiding
* Abetting
* Counselling
* Procuring

Question 6

What does ‘aiding’ mean in the context of accomplice liability?

Answer 6

‘Aiding’ suggests physically helping, assisting, or supporting the principal offender in some way, to enable them to commit the crime. Generally, aid will be given at the time of the offense, although it can also be earlier. Examples include providing the principal offender with the weapon, giving specific information, acting as a lookout, or holding the victim down during an assault.

Question 7

What does ‘abetting’ mean in the context of accomplice liability?

Answer 7

‘Abetting’ requires the accomplice to encourage the principal in some way to commit the crime at the time of the offense. This can be by words or actions. Examples include shouting specific words of encouragement or using gestures.

Question 8

What does ‘counselling’ mean in the context of accomplice liability?

Answer 8

‘Counselling’ involves instigating, soliciting, encouraging, or even threatening the principal to commit the offense. Counselling occurs at some stage before the offense. An example is encouraging an assault by “winding up” the principal offender.

Question 9

What does ‘procuring’ mean in the context of accomplice liability?

Answer 9

‘Procuring’ means to produce by endeavour. The accused sets out to achieve a particular state of affairs and takes appropriate steps to bring about that offense. A defendant who secretly adds alcohol to their friend’s drink, knowing that the friend would shortly be driving home, procures the offense of driving with excess alcohol.

Question 10

Is mere presence at the scene of a crime sufficient to amount to the actus reus of being an accomplice?

Answer 10

No. According to the decision in R v Allen, mere presence at the scene of a crime is not, in itself, sufficient to amount to the actus reus of being an accomplice. To be liable, it must be established that the accomplice was present by prior arrangement with the principal, or actually encouraged or assisted the principal at the scene of the crime.

Question 11

Are there any exceptions to the rule that mere presence at the scene is insufficient for accomplice liability?

Answer 11

Yes. In some cases, presence at the scene of the crime, without any obvious evidence of encouragement, has been found to be sufficient. This applies where the defendant is present at an illegal event. For example, in Wilcox v Jeffrey, the defendant was found guilty of being an accomplice simply by being a spectator at an illegal jazz concert.

Question 12

Can remaining silent at the scene of a crime lead to accomplice liability?

Answer 12

Yes. Remaining silent, or failing to intervene at the scene of a crime where there is a right or a duty to act to control the actions of the principal offender, can amount to encouragement of the offense and lead to accomplice liability. This was confirmed in the case of Tuck v Robson, where a pub licensee was held to be an accomplice to the offense of drinking after hours because he failed to stop his customers.

Question 13

Can a failure to intervene to protect a child from ill-treatment lead to accomplice liability?

Answer 13

Yes. In R v Russell and Russell, the failure of one parent to intervene to protect their child from ill-treatment by the other parent amounted to encouragement of the offense and led to accomplice liability.

Question 14

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

Answer 14

In most situations, the prosecution will have no difficulty in establishing that the parties met or liaised in some way to arrange the details of the crime. However, in cases of procurement, there is no need for a mental link or contact between the principal and accomplice. This is because procuring means “producing by endeavour”—setting out to ensure that something (in this case a crime) happens and taking the appropriate steps to achieve this.

Question 15

Is a mental link required between the principal and accomplice in cases of aiding, abetting, and counselling?

Answer 15

• In cases of counseling and abetting, there does need to be a meeting of minds at some stage between accomplice and principal, as it is difficult to argue that the accomplice advised or encouraged the principal in the commission of the offense if the principal is not aware of this.
• However, in cases of aiding, contact is not required between the principal and accomplice.

Question 16

Does the accomplice’s encouragement or advice need to be a substantial cause of the crime?

Answer 16

No. In R v Calhaem, the defendant hired a hitman to kill her love rival, but the hitman claimed he had no intention of actually killing the woman. The Court of Appeal held that there was no need to establish that the defendant’s acts or words had been a substantial cause of the crime.

Question 17

When is a causal link required between the accomplice and principal?

Answer 17

The need for a causal link between the accomplice and the principal, so it can be demonstrated that the behavior of the accomplice caused the crime to be committed, appears to be restricted to cases where the alleged accomplice has acted in order to bring about the crime, namely, where they have procured it.

Question 18

What is ‘joint enterprise’?

Answer 18

“Joint enterprise” or “joint venture” refers to a situation where more than one party commits an offense with a common purpose or plan.

Question 19

What are the two mens rea elements that must be proven for accomplice liability?

Answer 19

1. Intention to do the act: Proof that the defendant intentionally did the act that assisted, encouraged, or procured the commission of the offense, or intentionally spoke the words that advised, procured, or encouraged the crime.
2. Knowledge of the circumstances: The alleged accomplice’s knowledge or awareness of the circumstances of the principal offense.

Question 20

Does the defendant need to wish for the crime to be committed to be found guilty of accomplice liability?

Answer 20

No. Once it is established that the defendant intentionally did the act or spoke the words that constitute the actus reus of accomplice liability, this element of mens rea is made out, even if the defendant does not wish the crime to be committed.

Question 21

What are the two elements of the mens rea of an accomplice?

Answer 21

In National Coal Board v Gamble, Devlin J stated that there are two elements to the mens rea of an accomplice:
1. An intention to aid (proved by a positive act of assistance voluntarily done).
2. Knowledge of the circumstances.

Question 22

What does ‘knowledge of the circumstances’ mean in the context of accomplice liability?

Answer 22

‘Knowledge of the circumstances’ means the defendant must have known that certain things were going to happen, or at least contemplated that those things might happen which in fact constitute an offense. They must know ‘the essential matters which constitute that offence’.

Question 23

Is mens rea required to establish accomplice liability for crimes of strict liability?

Answer 23

Yes. It is necessary to establish mens rea even in cases involving strict liability. Crimes of strict liability are those where a defendant may be convicted even though they lacked mens rea for one or more elements of the offense.

Question 24

How specific must the accomplice’s knowledge be?

Answer 24

The accomplice must know “a crime of the type in question was intended.” As long as the type of crime is known, the defendant need not know the exact details.
* For example, in R v Bainbridge, the defendant supplied oxygen cutting equipment that was used to break into a bank.
* The defendant was aware that the equipment was to be used for breaking into some premises, but did not know the exact details of the crime. This was found to be sufficient knowledge to establish accomplice liability.

Question 25

What happens if a defendant, charged as an accomplice, had a range of offenses within their contemplation?

Answer 25

In Maxwell v DPP for Northern Ireland, the House of Lords found that if a defendant, charged as an accomplice, had a range of offences within their contemplation, they were liable for whichever of those offences the principal chose to commit.

Question 26

Can an accomplice be convicted of a different offense than the principal?

Answer 26

Yes. The accomplice’s liability will be based on their own level of mens rea, whether that be higher or lower than the principal’s.

Question 27

Can an accomplice be convicted of a more serious offense than the principal?

Answer 27

Yes. In R v Howe, the House of Lords held that an accomplice can be convicted of a more serious offense than the principal if the accomplice had the necessary mens rea for the more serious offense.
* For example, if the accomplice intended to kill the victim, but the principal only intended to cause grievous bodily harm, the accomplice could be convicted of murder, while the principal would only be convicted of manslaughter.

Question 28

Can an accomplice be convicted of a less serious offense than the principal?

Answer 28

Yes. In R v Gilmour, the Court of Appeal held that an accomplice can be convicted of a less serious offense than the principal if the accomplice did not have the necessary mens rea for the more serious offense.
* For example, if the principal intended to kill the victim, but the accomplice only intended to cause criminal damage, the accomplice could be convicted of manslaughter, while the principal would be convicted of murder.

Question 29

What happens if the principal goes beyond the agreed plan?

Answer 29

If the principal goes beyond the scope of the plan, the accomplice must intend to assist or encourage the principal in the commission of the “new” offense. Foresight of what the principal might do is evidence of such intent but no more.

Question 30

What is the significance of the case R v Jogee?

Answer 30

In the case of R v Jogee, the Supreme Court concluded that the previously established law on accomplice liability, which equated foresight of the “new” offence with intent to assist, was wrong. The Court held that “the correct approach is to treat [foresight] as evidence of intent” from which the jury can infer intention, but it clarified that foresight and intention are not synonymous.

Question 31

Can an accomplice withdraw from a plan and avoid liability?

Answer 31

Yes, but only if the withdrawal is effective.

Question 32

What is required for an effective withdrawal from a plan?

Answer 32

In R v Becerra, the Court of Appeal held that timely communication of the intention to abandon the common purpose is an essential element of an effective withdrawal. What constitutes “timely communication” will depend on the facts of each case. The more the accused has done to set up the crime, the more they are expected to do to withdraw from it.

Question 33

What is the ‘rule in Tyrrell’s case’?

Answer 33

The rule in Tyrrell’s case states that a person cannot be convicted as an accomplice to an offense if the offense was designed to protect them. This rule applies only to the “victim” of the offense and not any other person who might fall within the class of persons protected by the offense.

Question 34

What is the age of criminal responsibility for accomplice liability?

Answer 34

Anyone may face liability as an accomplice provided they are above the age of criminal responsibility, which is 10 years old or more.

Question 35

What general defenses are available to accomplices?

Answer 35

Accomplices have the same general defenses available to them as do principal offenders.

Question 36

What is the first step in assessing criminal liability?

Answer 36

The first step in assessing criminal liability is to distinguish between principal offender(s) and any accomplices.

Question 37

How is the actus reus of accomplice liability established?

Answer 37

The actus reus of accomplice liability is established by proof that the defendant aided, abetted, counselled or procured the commission of the offence. This usually involves physical or verbal advice or assistance before or at the time of the offence.

Question 38

What are the two parts of the mens rea that must be proven to convict someone as an accomplice?

Answer 38

To convict someone as an accomplice, the prosecution must prove that the defendant:
* intended to do the act or say the words that assisted or encouraged; and
* had all the circumstances of the principal offence within their contemplation.

Question 39

Does the accomplice need to know the specific type of crime that the principal commits?

Answer 39

No. The accomplice need not know or intend the specific type of crime that the principal commits. It is enough if the offence is within the range of possible offences that the accomplice intentionally assisted or encouraged them to commit. This principle was established in DPP for Northern Ireland v Maxwell.

Question 40

Can a person be convicted as an accomplice even if the principal is acquitted or is not charged?

Answer 40

Yes. A person can be convicted as an accomplice notwithstanding the fact that the principal is acquitted or is not charged.

Question 41

How is it determined if a withdrawal from a joint plan was effective?

Answer 41

Whether an accomplice’s withdrawal from a joint plan was effective will depend on the participation of the defendant and the stage at which they seek to withdraw.