Complicity Flashcards
PQ steps
- Identify the principal offence
- Identify the principal offender
- Identify the secondary party – D
- AR for participation = aiding, abetting, counselling, or procurring
- MR for participation
- Do any general defences apply?
- Do any specific defences apply?
P
The principal offender = commits or contributes to the AR by his own conduct, or through an innocent agent
- Joint principal offenders = Macklin and Murphy: both kick a police officer
- As a principal through an innocent agent = R v Michael: poison is actually medicine
+ R v Cogan & Leak: D was acquitted of rape, but the husband can be convicted
Accessory
AR: act to assist and encourage + MR: intention to assist and encourage
- Accessories and Abettors Act 1861 – s.8 = D is liable if they ‘aid, abet, counsel, or procure the commission’ of the offence
- P must commit the crime, in order for D to derive their liability from P
D must intend for P to commit every element of the offence
- What if you aren’t sure whether they were P or D but know they were one = you can convict as long as D was definitely one [R v Giannetto]
- However, if you aren’t sure, you cannot convict, if you cannot exclude that either A or B acted alone = R v Banfield
Causation
- No need to prove ‘but for’ causation = R v Bryce: D drove P - 12 hour delay
- D can still be convicted if P is acquitted for reasons other than those which mean that the offence did not occur = R v AIQ
- No need to provide a causal link = R v Mendez and Thompson: P pursued V, so ‘knowingly assists or encourages another to commit an offence is taken to have contributed to its commission’
- There is no need to prove a positive effect = R v Rowe: P shoots V in an act of gang revenge, D2 and D3 stand close behind
Connection?
- But there has to be a ‘connecting link’ where D had some relevance to the commission of the offence = Stringer
- Connection not causal affect upheld by SC in R v Jogee: D stands in doorway as back-up
- R v Kenndy [self-administered drugs case] broke the chain
vs. In cases of procuring, causation must be established = Attorney-General’s Reference (No. 1 of 1975)
AR: AEA
- Assistance = mere association is not enough, but contribution to the force in numbers or acting as back-up is [R v Mendez and Thompson + R v Jogee]
- Encouragement = D has to perform acts of encouragement and P must be aware of them, no cause = R v Jogee
- Aiding = R v Bryce [dropped off P - 12 hours delay] + Stave v Tally [judge made aware of murder plot]
AR: ACP
- Abetting = R v Clarkson [D watched rape, but it must be proved that he wilfully encouraged it] + R v Coney [illegal prize-fight was watched] + R v Jogee: association and presence are relevant to the question whether assistance or encouragement was provided, but it is not proof of, it depends on the facts
- Counselling = R v Callhaem: P intended to scare V, hired hitman, murder was in the scope of his authority, so D is liable + R v Jogee = if P ignores D, but in prescribed scope, D is liable
- Procurring = A-G’s Reference (No. 1 of 1975): D laced P’s drink, knowing they were going to be driving = to procure is to ‘produce by endeavour’
AR = omission + presence
Omission can amount to AR =
- Wilcox v Jeffrey: [interviewer of jazz player]
- Tuck v Robinson: D allows P to drink beyond licence hours, D had the ‘power to control’ their behaviour, and had a duty to do so under the licence, so conviction upheld by CoA
Presence can amount to AR
- R v Webster: D allows P to drink drive, they crash, killing V, D is an accomplice to death by dangerous driving
- presence as back-up in Robinson v The Queen is capable of amounting to aiding
MR = accessorial liability - intention
Intention as to D’s own conduct, so the intention to aid or abet, but also D’s MR as to P’s crime:
a) intention that P will commit the offence
b) intention that P will have the prescribed MR for the offence
c) they must have the knowledge of the facts/elements of the offence
- D’s intention to aid, abet, counsel, or procure = R v Jogee: D must intend, recklessness or negligence is not enough
+ NBC v Gamble: P driver a truck overloaded
+ Lynch v DPP for Northern Ireland: D drove P to an execution despite not wanting to, but his intention to drive was enough
+ Gillick v West Norfolk and Wisbech AHA = contraception advice or treatment is not aiding or abetting, it would depend on itention [now regulated by the SOA 2003, s.73]
MR = D’s MR as to P’s crime [intention]
- D’s intention that P will commit the offence = R v Jogee: intention for P to have the MR to commit the crime, and intention that P will commit the crime, but intention does not mean knowledge = this strict approach, that intention is needed has been upheld in Brown, Johnson, and Seed
- D’s intention that P will have the MR for the offence = R v Jogee: changed the law that foresight is not enough, it is mere evidence of D’s intention of P’s intent
- D’s intention that P will have the MR for the offence = R v Jogee: changed the law that foresight is not enough, it is mere evidence of D’s intention of P’s intent
MR = D’s MR as to P’s crime [knowledge]
D’s knowledge that P’s acts will amount to an offence = R v Jogee: you have to have the knowledge of the facts of the case
- Vs. Courts struggle to maintain the high threshold of knowledge, to almost recklessness = Carter v Richardson: P learner driver charged with drink driving, D had a duty to intervene, he did not need to know exactly by how much P was over the limit
- Vs. Blakely and Sutton v Chief Constable of West Mercia = D intended for P to be over the limit but not for P to drive, which is insufficient
- You don’t have to have knowledge of every detail = R v Bainbridge: D supplied P with equipment, D knew it was for an illegal activity, D can still be convicted as they knew of the ‘type of crime’, it however, is not enough, to know that ‘something’ illegal will happen
+ this was supported by DPP for Northern Ireland v Maxwell as D knew that P would comit one of a limited number of crimes, so HoL upheld the conviction
Can the accessory be convicted where the principal does not commit a crime?
D convicted when P is excused = R v Bourne: D has the excuse of duress, however, D could still be convicted as it was held that he acted through his wife as an innocent agent
– although, this is a bit of a stretch as innocent agents do not know what they are doing, in this case it could be argued that he procured it
+ Yes, R v Millward = D gives employee instructions to use a faulty equipment, knowing this, it detaching killing V, P was acquitted, but D could still be convicted
– vs. However, if P fails to perform the offence, then there is no offence = Thornton v Mitchell: P reversed into a blind spot, he did everything to be safe, by getting D to get out and check
Can D be convicted of a more/less serious offence than P?
R v Richards, says no, to more serious, but in R v Howe, in obiter dicta, D may be liable for a more serious offence than P, if D has the MR for that offence, whilst P has the MR for the lesser offence
+ D can be convicted of a less serious offence than P = R v Yemoh
Departures from the plan
- R v BHV = if P unilaterally changes the intended victim, then D is not liable, but if P intentionally commits an offence against V2 in the course of committing the offence against V1, then D is liable if D had conditional intent [supported by R v Jogee]
- Deliberate departures to commit a fundamentally different crime = R v Perman: D is an accomplice to P in a robbery, P kills V, D was unaware the weapon was loaded, so not liable for murder
- Parasitic accessorial liability was abolished in R v Jogee [where D intends to help commit one crime, but P commits another, D could still be liable if he foresaw the possibility [vs. The high court in Australia rejected Jogee]
General defences and those specific to accessories
- General defences: duress [except to murder and attempt], loss of control, diminished responsibility, insanity
- Specific = overwhelming supervening act, withdrawal, being the victim, and performance of a duty
Specific defences = Overwhelming Supervening Act
- R v Jogee: Where P commits the offence in a manner different to that which D intended, then only where P’s act amounts to “some overwhelming supervening act” - previously ‘fundamentally different’ in Gamble, which was a kneecapping case, but P slit their throats
- a ‘mere escalation’ of violence is not enough = Tas
- Grant = D and P drove around looking for V, runs them over, D argued it was a different act, CoA said they were still guilty of murder, as they admitted to intending GBH
- Church = an overwhelming supervening act requires that no one in D’s shoes could have contemplated P’s act, such as R v Rafferty[ D beat V to steal card but P had drowned V]
Specific Defences = Withdrawal
- R v Grundy [two weeks prior to the burglary, D tried to stop P from committing the crime]
- R v Becerra: withdrawal requires more than a mental change of intention, the nearer to the completion of the crime, the clearer your withdrawal must be, in this case D said ‘let’s go’ when a burglary went wrong, but P stabbed V
- R v Flaherty = D throwing down his weapon may be enough, but it would depend on factors such as how far D was from the crime, if a different weapon was used, and so on.
- Gallant = where D is one of the instigators, more may be needed to withdraw
Specific possible defences = V as a party to the crime?
- R v Gango: in a shootout, P and D intended to shoot and be shot at, so D was assisting the shooting, even if V was not a party to the shootout
- you can be both V and D, was upheld in R v Seed, again involving a shooting
+ applies in a duel = R v ARU
Specific possible defences = performance of a duty?
Performance of a duty? = Garrett v Arthur Churchill [Galss]: criminal law duty outranks civil law duty
