Complicity Flashcards
What is complicity?
The basic idea is that D has liability that derives from their substantial involvement in the commission of a principal offence
They are labelled and sentenced as if they were the principal offender
Establishing the level of involvement necessary is not always easy or logical
Inherent complexity: considering not only D’s AR and MR, but also their MR with respect to a principal offence, and P’s AR and MR for the principal offence
What are the policy issue around the scope of complicity?
How wide the scope should be
What is a principal?
The principal is the person who performs the actus reus of a substantive criminal offence with the necessary mens rea
What is a joint principal?
Where there are two or more people who both perform the actus reus of an offence with the necessary mens rea
They are joint principals or co-principals
What is an innocent agent?
A principal may cause the actus reus of the offence through an innocent agent such as a child
What is a secondary part/ accessory?
A secondary party encourages or assists the comission of the principal offence but he does not directly cause the actus reus. The mens rea requirement is seen in Jogee
If joint principals have different mens rea can they be convicted of the same crime?
no
If joint principals have the same mens rea they will be convicted of the same crime. T/F
True
Who is what in the scenario?
A gives B a knife, telling him to stab C to death, which B does.
A is accomplice
B is principal
C is victim
Who would be liable for murder if both A and B attacked C and evidence could not establish who the fatal wound was inflicted by?
They would both by liable for murder
A and B attack C at the same time but without intending to assist or cooperate one another. Who is liable?
Both are individually liable for their own actions but not for each others
What are the facts of the case of R v Michael (1840)?
Mother asked nurse to give ‘medicine’ to child - it was poison
She put it on mantelpiece nurses’ child gave to child
2 innocent parties
Mother was guilty
If a robbery has taken place and someone is told to be the lookout how will they be charged?
May be convicted as a secondary party or an accessory as they have aided the robbery
If A and B do not commit the actus reus or robbery how would they be charged?
May be charged with an inchoate offence of assisting robbery under serious crime act 2007
What is covered in s8 of the Accessories and Abettors Act 1861?
Complicity is largely a common law doctrine, but its basic structure is codified within
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.
Could A be convicted as a secondary part?
Only if prosecution can prove that:
- that he aided (i.e., helped) the murder by supplying the hammer;
- that he intended to supply the hammer to B;
- that he knew that B might kill; and
- that he foresaw that if B did kill, he would do so with the requisite mens rea for murder
What happens in the case of R v Gnango (2011)
nd man not identified bandana man
Got into gunfight on a London street
Bullet came from bandana man’s gun
Gnango was one caught and charged, held as accomplice
Appeal was allowed by court of appeal, case went to SC
If (1) D1 and D2 voluntarily engage in fighting each other, each intending to kill or cause grievous bodily harm to the other 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?
D liable via four different sets of reasoning
7 judges heard appeal in SC
6/1 majority that Gnango was liable
4 reasons why
- Assisted principal to shoot
- He encouraged principal to shoot
- He was principal offender
-Co-principal
What happens in the case of R v Giannetto (1997)?
Factual uncertainty as to which party committed offence
D threatened to kill v (his wife)
He hired 3rd party to kill her
It was not clear whether the husband or third party had actually killed the wife
So long as the jury sees that either killed wife, husband principal or accesorty
Does not matter if jury is unanimous which role he played
He was liable for murder
What was joint enterprise?
The doctrine of ‘joint enterprise’ operated to hold D liable in situations where the normal principles arguably did not apply
i.e. normal principles of ‘aiding, abetting, counselling, or procuring’
Classic example is where P does some collateral offence during a ‘joint criminal venture’
e.g. killing a security guard during a bank robbery
What does the case R v Powell and Daniels (1999) show?
Joint enterprise case
Parties went to buy drugs together
While at drug seller s place
One committed murder
Was d liable as accesosry or principal
Held as they were in joint venture it was wnough to find them as accessory.
What are the issues of joint enterprise?
The law does not need a separate doctrine, in addition to aiding, abetting, etc
Mere proximity to P should not be enough for liability
R v Stringer [2011] EWCA Crim 1369: ‘joint enterprise as a basis of secondary liability involves the application of ordinary principles; it is not an independent source of liability’
R v Jogee [2016] UKSC 8
Some reasons why the law arguably did need the doctrine:
Policy rationale for prosecuting coordinated crime (e.g. gang activity)
What is the AR conduct, circumstance and result of complicity?
AR conduct: any action or omission
AR circumstance:
- D’s conduct is capable of assisitnig or encouraging P to commit an offence or,
- of causing P’s offence
AR result:
- D’s conduct assists or encourgae P to commit an offence or
- Causes Ps offence
What is the MR conduct, circumstance and result of complicity?
MR Conduct: voluntariness
MR circumstance:
- knowledge to both
MR result:
- intention or
- none
What is the ulterior mens rea for complicity?
- Intend P to commit principal conduct
- Intent or know principal circumstances
-Intend P will cause the prinicpals results unless prinicpal offence is one of consturctuve liability - intend P will have the principal mR requirement
What are all of the elements required for complicity?
Complicity requires:
D’s AR
D’s MR
D’s Ulterior MR with respect to the principal offence
P’s AR and MR for the principal offence
D’s MR as to the result depends on which kind of AR is committed
‘Aiding’, ‘abetting’, or ‘counselling’ require intent
‘Procuring’ requires no MR (strict liability)
What does aiding mean?
encouraging
What does counselling mean?
encouraging
is presence enough to encourage an offence?
R v Clarkson [1971] 3 All ER 344: watching a rape
R v Coney (1882) 8 QBD 534: watching illegal prize fighting
Does contribution to Ps offence need to be substantial?
Any contribution will do, does not need to be substantial
R v Bryce [2004] EWCA Crim 1231: D helped P 12 hours before the offence
D drove Principal to the place the Principal could kill the V
Prinicpal didn’t kill v till 12 hours later
D was complicit as he did something that continued to provide assistance to the principle in committing the murder.
Despite time delay and other acts in between
Encouragment does not need to be communicated to P. T/F
False must be communicated
What is procuring?
Causing by endeavour
procuring is not independant from aiding, abetting or counselling. F/T
false is independant
What does the case AG’s Reference (No 1 of 1975) [1975] 2 All ER 684 show?
Even where D has not assisted or encouraged P, D has played a cusal role in the principal offence
D spiked principles drink knowing that they were driving home
Drove home and committed a drink driving offence
Initially held that the D could not be an accomplice as the principle had no knowledge of their involvement
On appeal held that the d had procured the offence as they had actually caused it
What occurs in the case of Beatty v Gillbanks (1882)?
Even where the D has not assistant or encouraged the princple as long as the d has played a causal role in the principle offence coming about.
Salvation army had a meeting in a time they knew would provide a violent relaction from the group called the skeleton army
The question here was by having the meeting knowing it would cause a violent reaction was whether the salvation army had procured the violence
held the violent reaction of the other group was voluntary therfore breakign the chain of causation
Provoking is not procurring the other party still choose to react
Innocent agents are not ‘procured’ because P does not commit an offence
Exception: where the offence cannot be committed via innocent agent
What happens in the cage of Cogan v Leek (1976)?
Even where D has not assisted P, the principal effect would not have occured without D playing a causal role
D told his wife to have sex with principle
She was scared so she did not resist
She had sex with the other man
He was not aware that the wife was not actually consenting
Other man was charged with rape and the husband as an accomplice
The other man was innocent of the rape but nethereless the husband was guilty as he had procured the rape
The other man didn’t have the necessary mens rea but the husband netherless created the situation and was therefore guilty as the accomplice
What happens in the case of R v Millward (1994)?
D causal role in principal offence but not assited or encouraged P
D told emploee to drive tractor and trailer even though he knew the hook up mechanism was faulty
The mechanism was faulty and caused death
Employee did not commit death by reckless driving as they did not know about the faulty hookup mechanism
The d was guilty of procuring on the basis that he procured the offence
How is MR different in complicity?
Mens rea as an accomplice differs from the required of all other froms of criminal liability as it is not only the d’s awareness of the nature and effects of their own act but also their awareness of the principals intentions
What happened in the case of R v Jogee(2016)
Jogee and Hirsi spent an evenning drinking and taking drugs
Went to a house occupied by a Ms Reid she told them to leave as her firend was coming round
They said they were not scared of her friend and would sort him out – lots of comings and goings between them at the flat
Eventually they came back Jogee was carrying a bottle and told Hiris to do something to mr fife
Hirsi ended up stabbing mr fife with a knife he found in the kitchen of the flat
Trial: trial judge directed the jury that they could convict Jogee of murder if they concluded that he had taken part in the attack and relaised that it was possible that Hirsi might use the knife with intent to cause serious harm
Hirsi was charged with murder
Jogee was convicted of murder –he appelaed was he accomplice to murder
Was dismissed got reduced to 18 years
Appealed to supreme court and the case joined with a privy council appeal the case of ruddick
How was R v Jogee changed the MR of complicity?
Previously, foresight of the possibility P’s offence could make D complicit
Now, D must have intent to assist or encourage P’s offence
Foresight is not enough, but may be evidence of intent
the accessory must intend to assist or encourage the principal’s conduct, or in the case of procuring, to bring the offence about;
(2)if the crime requires a particular mens rea, the accessory must intend to assist or encourage the principal to act with that mens rea.
Innocent agency and procuring an actus reus would appear to be exceptions to this rule;
(3)the accessory must have knowledge of any existing facts or circumstances necessary for the principal’s conduct to be criminal
What are the two basic fault elements of MR in complicity?
The accomplice must intend to do whatever acts or assistance are required and must be aware of their ability to assist or encourage the principle
Knowing the essential matters which constitute of the principle offence
Essential matters are unclear- includes facts, circumstances that make up the conduct element of the principle offence but theres uncertainty about the extent to which constitutes the principle offence
If someone knows of the essential matters of an offence to be done by P, what are they?
Potential accomplice
What occurs in the case of R v Haynes (2019)?
MR and complicity
- gang murder
Haynes was 16 and another teenager was stabbed to death
Said it wasn’t him but was convicted as he was part of the gang
The jury can consider the forseight of the accused along with the other evidence of the case to determine if the accused had the necessary intention
D’s own conduct does not need to be voluntary?
False must be voluntary
D must intend to assist or encourage P, this is seperate from D intending P to commit the offence. T/F
True
What happens in the National Coal Board v Gamble (1959)?
D supplied coal to principle and weighed the principles lorry at a weigh station before they left the premises the weight of the lorry was over the max permitted level but the d allowed the lorry to leave anyway
The question was whether d the coal board was complicit in the offence that the lorry driver proceeded to commit
Held that d may be indiffernet to principles ofence they still had indirect intent that their conduct would assist
Direct or indirect intent will satisfy this element
What is the type of intent if D intends for P to commit robbery, and to kill security guards if they have to ?
D’s ‘encouragement’/etc is complete—not conditional
This is covered by (in)direct intent
What are the 4 ways P to commit the principal offence?
- as expected
- less serious
- more serious
- different
What were the requirements of knowledge pre Jogee?
Pre Jogee the requirement of knowledge meaning foresight was held to be evidence of knowing the essential matters
Why is the requirement of foresight not explicitly overruled by Jogee?
Requirement of ‘foresight’ is now explicitly overruled by Jogee:
D must ‘intend’ all aspects of the principal offence be committed
This includes P’s MR
Does it matter if D has intent that P will commit an offence but is not sure exactly which one or is unclear of the details?
Does not matter as long as they know the essential details when looking at the prinicipal offence being as expected
What happened in the case of DDP for NI v Maxwell (1978)?
Principal offence as expected:
D assisted the principle by driving him to a pub knowing he would attack the pub
However would not be complicit if principle committed rape as that is not within essential matters
He did not know how the princple would attack the pub
Principle used pipe bombs
Maxwell complicit to explosive offence
He knew the essential matters that there was to be an attack the exact detaills
D has intent that P will commit a strict liability offence?
Does not require mens rea on the part of the accomplice – previous law indicated that the d would need to intend the principle to commit all the elements of the principle offence – higher standard for the accomplice
How does P’s Ar R limit D’s liability with regards to a principal offence which was less serious than expected?
D cannot be an accomplice to something that was not done
What was found in the case of Thornton v Mitchell (1940)?
Principal offence: less serious
P does not have AR
D was bus conductor directing the principle who was driving
D was negligent
Principle was charged in
Prinicple seen to not be careless as there was no actus reus
On appeal Mitchel was not an accomplice as you cannot have an accomplice wihtout the crime taking place
What is shown in the case of R v Bourne (1952)?
prinicpal offence: ;ess serious
P has a defence
D was charged as an accomplice to the the principles buggery offence
Held that the principle committed she has a valid defence and was able to plead duress
The defence did not undermine d’s liabiltiy as an accomplice
Can a defence from the P undermine D’s liability as an accomplice?
NO
Generally does D’s ulteriour MR limit their liability?
Yes
if D intends P to commit a battery, but P commits s 18 GBH, what can D be charged with?
D is only complicit up to the level of battery and not the more serious harm
If P’s offence is that of constructive liability with regards to the principal offence being more serious than anticipated, what would happen?
If D intends P commit the base offence, they are liable along with P for the more serious outcome even though neither foresaw the greater harm
Logic is that D, like P, is not an innocent party so should take all the consequences
What happened in the case of R v Bristow (2013)?
Principal offence being more serious
d robbed vehicle repair yard
Owner tried to stop them he was killed
Using the vehicles they ran him over
Was unclear which vehicle did this
All participants were charged with unlawful and dangerous act manslaughter either as the principle or as an accessory
Was liable whether he foresaw the risk of death because it is a crime of constructive liability
Jogee confirms: where D intends P to commit GBH, D can be liable for murder
Ps crime must be sufficiently similar to what D intended for D to be complicit. T/F
True
Principle offence: different
What happens is an overwhelming supervening event is found ?
Principal offence: different
(pre-Jogee: ‘fundamental difference’)
If such an event is found, it will mean D is not complicit in that event
What happened in the case of R v English (1999) in terms of the principal offence being different?
D and other attacked a polcie officer with wooden posts
Unforseen by d the principle had a knife and stabbed and killed a victim
This was a fundamentally different act as anticipated
Jogee: knowledge of weaponry is mere evidence—need to show intent
What happened in terms of the case R v Tas (2018) with regards to the principal offence being different?
Group violently attacked a person and the victim was stabbed by one member of the group
Tas said he did not stab v and did not realise anyone had a knife
The existance of an unknown weapon could not in itself by an overwhelming supervening event
When might an overwhelming supervening event be found?
Not wholly clear post Jogee
What happened in the case of AG’s reference (3 of 2004) (2005)?
Principal offence different
D recruited P to discharge firearm near v to intimidate him
The p intentionallt shot and killed the v
The principle killing was funfamentally differnet from the offence contemplated by the d
was seen as a supervening event
What happened in the case of R v Rafferty (2007)?
Principal offence different
D and P beating up v on beach, D took bank card to et money out of an atm nearby
P continued the attack and when D got back v was dead by drowning
Drowing of the vehicle in D’s absense meant he was not complicit in the murder
What happened in the case of R v Gamble (1989)?
Principal offence different
D intended the p to kneecap v
P used a knife to cut the v throat and killed him
The d clearly intended GBH
The nature of the P actions were held to be so fundamentally different from what was anticipated the d should not be liable for murder
Can withdrawal undermine liability for complicity?
yes
As soon as D assists or encourages a principal offence, they are liable for an inchoate offence regardless of P’s commission or any later withdrawal by D. T/F
True
How does one effect a withdrawal with regards to defences of complicity?
Assistance or encouragement must be withdrawn, not just D’s involvement
Which case looks at how one would effect withdrawal with regards to defences of complicity?
R v Rook [1993] 2 All ER 955: D absent when P murdered D’s wife
Evidence of withdrawal is not balanced agaisnt the level of Ds involvement. T/F
False
Evidenced by R v O’Flaherty
what is the victim rule?
Like with assisting and encouraging, or attempting, the victim of an offence cannot be complicit
What case does the victim rule derive from?
R v Tyrrell (1894)
D encouraged P to have under-aged sex with her
What are the exceptions to the victim rule?
Only applies where offence protects a certain class of people
e.g. applies to sexual offences against children, but not to murder
Only applies if D is the victim (not someone else in the protected group)
What is the central purpose of criminal alw?
To regulate harmful personal conduct
