Inchoates and secondary participation

Question 1

Criminal liability for an attempt

Answer 1

Criminal Attempts Act 1981 s 1:

Actus reus - An act which is more than merely preparatory to the commission of an offence

Mens rea - An intention to commit the full offence e.g. for attempted murder, the defendant must have intention to kill

Absence of a valid defence - A defendant cannot be convicted for a non-existent crime (R v Taaffe)

Question 2

Attempt - actus reus explained

Answer 2

• ‘An act which is more than merely preparatory.’
• A question of fact to be decided by the jury, providing the judge is satisfied that the actions are capable of being more than merely preparatory (s 4(3) CAA 1981)
• R v Gullefer: ‘An attempt begins when the merely preparatory acts come to an end and the defendant embarks on the crime proper or the actual commission of the offence.’

Question 3

Examples of offences that are not an attempt (are merely preparatory)

Answer 3

• Being outside a post office with a threatening note and fake gun (not attempted robbery, Campbell)
• Being in school toilets with a knife and rope but no schoolchildren (not attempted false imprisonment, Geddes)

Question 4

Examples of offences that are an attempt (are more than merely preparatory)

Answer 4

• Getting in a car with a loaded gun and pointing it at the victim (attempted murder, Jones)
• Looking at a padlock with cutting equipment in the hedge (attempted burglary, Tosti)

Question 5

Attempt - mens rea explained

Answer 5

• The accused must intend to bring about the consequences require for the full offence.
• R v Whybrow - The mens rea of murder is intention to kill or intention to cause GBH. For a charge of attempted murder, it is necessary to prove the defendant intended to kill. Intention to cause GBH was not enough for attempted murder.
• R v Toole - If the substantive offence has the mens rea of either intention or recklessness as to the actus reus, to convict of the attempted offence proof of intention is required.

Question 6

Attempt - mens rea: use of oblique intent

Answer 6

R v Walker & Hayles - The jury may find intention where they are satisfied that the defendant foresaw the result as a virtual certainty.

Question 7

Attempt - mens rea: conditional intent

Answer 7

A conditional intent counts as intention. So where a defendant only intends to commit an offence subject to certain condition(s), the defendant will still have the sufficient mens rea for an attempt (AG’s Ref (Nos 1 & 2 of 1979)

Question 8

Attempt: mens rea: intention to achieve only what is missing from the full offence

Answer 8

• If the mens rea includes an element which does not relate to the actus reus, the mens rea for an attempt to commit this offence is then an intention to achieve what is missing from the actus reus, plus the mens rea for the full offence.
• e.g. Aggravated criminal damage. Actus reus: damage to property. Mens rea: intention or recklessness as to damaging property, intention or recklessness as to endangering life by the damage.
• Attempted aggravated criminal damage. Actus reus: more than merely preparatory act. Mens rea: Intention to damage property, intention or recklessness as to endangering life by the damage.

Question 9

Attempt - three types of impossibility

Answer 9

(1) non existent crime
(2) through inadequacy
(3) in fact

Question 10

Attempt - Impossibility: non-existent crime

Answer 10

Where the accused believes that what they are doing is an offence, whereas it is in fact lawful. You cannot turn a lawful act into an unlawful act

R v Taaffe - Taaffe was caught importing illegal drugs into the UK. He thought the bag containing the drugs contained currency and he mistakenly thought that it was an offence to import this currency into the UK. Taaffe could not be convicted of an attempt to import currency into the UK because there is no such offence.

Question 11

Attempt - Impossibility: through inadequacy

Answer 11

Where the crime itself is perfectly feasible, but the defendants adopt, or seek to adopt, a method that cannot work, e.g. ‘poisoning’ someone with a substance that unknown to them is harmless, or trying to open a bombproof safe with explosives which cannot blow it open.

Such an argument cannot succeed in any situation: a defendant who sets out to kill cannot get off simply because they choose a method doomed to fail. Such a defendant will be convicted of an appropriate inchoate offence/attempt e.g. attempted murder.

Question 12

Attempt - Impossibility in fact

Answer 12

• No longer a defence to an attempt (s 1(2) & (3) Criminal Attempts Act 1981)
• e.g. if D stabs V, but V is already dead, D will still be liable for attempted murder.
• R v Shivpuri - D was arrested with a suitcase. He admitted it contained illegal drugs but it turned out it did not. He was convicted of attempting to knowingly be concerned in dealing with a prohibited drug.

Question 13

Principal offender - definition

Answer 13

The person who, with appropriate mens rea, commits the actus reus of the offence. It is possible to have more than one principal.

Question 14

Innocent agent - definition

Answer 14

• A person may be guilty of an offence as a principal, even if another person actually performs the actus reus. The person acting can be described as an innocent agent.
• Includes where the person carrying out the actus reus is under the age of criminal liability or is deceived as to what they are doing.

R v Michael - A woman gave a child a dose of poison and the child gave it to the victim. The woman was the principal offender.

R v Stringer and Banks - An employer told his employees to make accounting transactions which (unknown to them) resulted in fraudulent transfers. The employer was the principal and the employees were innocent agents.

Question 15

Being an accessory to a crime - statutory reference

Answer 15

‘Whosoever shall aid, abet, counsel or procure the commission of any offence …shall be liable to be tried, indicted and punished as a principal offender.’ (Accessories and Abettors Act 1861, s 8)

Question 16

Case that sets out the principles for joint enterprise

Answer 16

R v Jogee - the principles governing those who set out on joint enterprise are the same as for those who aid, abet, counsel or procure.

Question 17

5 ways in which someone can be liable as an accessory to a crime

Answer 17

(1) To aid
(2) To abet
(3) To counsel
(4) To procure
(5) To be a party to a joint enterprise

Question 18

Accessorial liability - actus reus

Answer 18

Any of the following 5 ways -

• To aid P in committing the offence
• To abet P in committing the offence
• To counsel P in committing the offence
• To procure P to commit the offence
• To be a party to a joint enterprise with P regarding one offence and during the enterprise P commits a second, different offence

Question 19

Accessorial liability - mens rea

Answer 19

• An intention to assist or encourage the principal’s conduct
• If the crime requires a mens rea, an intention that the principal will do the actus reus with that mens rea (procuring would be an exception to this rule)
• Knowledge of existing facts or circumstances necessary for the offence to be criminal.

Question 20

Accessorial liability - withdrawal general rule

Answer 20

The general rule is that it is not enough to just have a change of mind. Something must be done and, at the very least, the withdrawal must be communicated to the principal or a law enforcement agency. Further acts may be required depending on the circumstances.

Question 21

Accessorial liability - withdrawal cases

Answer 21

R v O’Flaherty - ‘mere repentance does not suffice…a person must do enough to demonstrate that he or she is withdrawing from the joint enterprise…ultimately a question of fact and degree for the jury. Account will be taken…of the nature of the assistance and encouragement already given and how imminent the infliction of the fatal injury or injuries is, as well as the nature of the action said to constitute withdrawal.’

R v Rook - Rook and another were recruited by a man to kill his life and paid money to do so. Rook recruited a fourth man to help. The fourth man killed her. Rook never turned up and claimed he never intended to be involved in the killing. Held that the minimum which was required was unequivocal communication of his intention to withdraw.

R v Beccera - Becerra had broken into a house with C and G, intending to steal. B gave a knife to C to use on anyone interrupting them if necessary. When the tenant came, B encouraged C to leave with them. CoA held that something ‘vastly different and vastly more effective’ was required for a sufficient communication of withdrawal – there came a point of time where the only way to effectively withdraw would be to physically intervene.

Question 22

Accessorial liability - withdrawal; timing considerations

Answer 22

• The relevant time for the mens rea is at the time of the act of assistance, not at the time when the principal commits the crime.
• Therefore, the withdrawal must take place before the act of assistance.
• Where D has supplied the principal with the means of committing the crime and has given assistance, this will be less easily neutralised than where D has just given advice.

Question 23

Accessorial liability - withdrawal from spontaneous violence

Answer 23

R v Mitchell and King - It was suggested that the test is less onerous for acts of spontaneous violence. A fight broke out in which A, B and D assaulted two customers. The fight continued outside, and D returned later to beat the victim further and killed him. CoA held that communication of withdrawal was required only in cases of pre-planned violence, not like this situation. This case was confined to its facts in R v Robinson, but then in R v O’Flaherty, the CoA said obiter that communication was not necessary for withdrawal from spontaneous violence.

Question 24

Conviction of secondary party and acquittal of principal

Answer 24

• Conviction of a secondary party and acquittal of the principal is possible and could occur when the principal has been acquitted due to insufficient evidence or the principal could not be found.
• Another situation where D can be convicted and the principal acquitted is where the principal has done the actus reus with the mens rea, but has a defence e.g. R v Bourne: Bourne procured his wife to do the actus reus with the mens rea, but she had the defence of marital coercion.
• The general rule is that if it cannot be proved which of two people committed the crime, both must be acquitted. If it can be proved that the one who did not commit the crime as the principal was a secondary party to the crime, then both can be convicted.

R v Russell and Russell - Both parents of a 16 month old daughter were convicted of manslaughter after she died from a massive dose of methadone. It did not matter that it could not be proven which parent had given her the dose, as long as the other had been there when it happened, so had abetted the offence.

Question 25

Secondary parties - interaction with attempt

Answer 25

• It is not an offence to attempt to aid, abet, counsel or procure an offence (s 1(4)(b) CAA 1861)
• It is an offence to aid, abet, counsel or procure an attempt to commit an offence (R v Hui Chi-Ming)

Question 26

Interpreting the words in the actus reus of being an accessory

Answer 26

AG’s Reference (No 1 of 1975) - ‘We approach s 8 of the 1861 Act on the basis that the words should be given their ordinary meaning, if possible.’

Question 27

Secondary party - actus reus: procuring

Answer 27

AG’s Ref (No 1 of 1975) - ‘To procure means to produce by endeavour.’ In this case, D added alcohol to P’s drink without his knowledge/consent. P then later got in his car and drove. D had procured P to commit a drink driving offence. In procuring, there is no need for consensus, as in this case it was done without P’s knowledge/consent.

Beatty v Gillibanks - Officers of the Salvation Army arranged a meeting which they knew was likely to produce a violent reaction from the Skeleton Army. There was a violent reaction. However, it was held that the Salvation Army officers had not procured the violence as they had not endeavoured to cause it. There must be a causal link between D’s act and the commission of the offence.

Question 28

Secondary party - actus reus: aiding

Answer 28

Requires the accessory to give help, support or assistance to the principal offender in carrying out the principal offence.

Examples:

• supplying materials or tools to commit the offence (Thambiah v R)
• giving information which helps the principal to commit the crime (A-G v Able)
• holding down a victim in assault (R v Clarkson)

R v Bryce - B drove P to a caravan close to V’s home. B argued that he was not liable as an accessory to P’s subsequent murder of V because of a 12 hour delay between P’s arrival at the caravan and the murder. CoA held that B’s act could amount to aiding.

• There need be no causation in the sense that but for the assistance the crime would never have happened
• There need be no consensus - D is guilty even if D’s assistance is unforeseen and unwanted by and unknown to P.

An accessory before the fact is one who helps before the crime; this would be ‘aiding.’ An accessory after the fact has been abolished; such a person would now be convicted of assisting an offender (s 4 Criminal Law Act 1967)

Question 29

Secondary party - actus reus: counselling

Answer 29

• Giving advice or encouragement before the commission of the offence.
• R v Calhaem - does not need to be a causal link, but there must be contact between the parties and a connection between the counselling and the offence. The principal offender must know of the counselling, i.e. there must be consensus.
• R v Jogee - The prosecution does not have to go so far as to prove that it had a positive effect on P’s conduct or the outcome. In many cases that would be impossible to prove.

Question 30

Secondary party - actus reus: abetting

Answer 30

• ‘to incite, instigate or encourage.’
• NCB v Gamble - encouraging at the time the offence is being committed. There need be no causal link but there must be communication. The principal must know they are being abetted.
• R v Giannetto - ‘Any involvement from mere encouragement upwards would suffice.’

Question 31

Abetting: mere presence at the scene of the crime

Answer 31

• Not necessarily enough to count as abetting.
• R v Coney - Three spectators at an illegal fight were charged with battery as accessories. The conviction was quashed as it may have lead the jury to conclude that mere presence at the scene was sufficient to amount to the offence.
• Wilcox v Jeffrey - It is possible to abet by mere presence. H, an American jazz musician, played a concert in London despite the fact that his permission to enter the UK prohibited him from working. W attended the concert and wrote a favourable review in a magazine he owned. It was held that W’s presence at the concert was an encouragement to the offence.

Question 32

Abetting: failure to prevent an offence

Answer 32

• When D has the right or duty to control the actions of another and deliberately refrains from exercising it, D’s inactivity may be a positive encouragement to perform an illegal act and would therefore be abetting.
• R v Russell - Parent: a husband who stood by and watched his wife drown their children was guilty of aiding and abetting homicide.
• Tuck v Robson - Publican: If a licensee of a pub stands by and watches their customers drinking after hours, they are guilty of aiding and abetting them in doing so.
• Du Cross v Lambourne - Car owner: If D’s car was being driven at a dangerous speed by E in D’s presence, D could be convicted, for he was in control, could and ought to have prevented her from driving dangerously.
• R v J F Alford Transport Ltd - Employer: The company, together with the MD and transport director, were convicted as accessories to offences of falsifying records, committed by 19 drivers employed by the company. The company was in a position of control over the drivers and passive acquiescence in such a circumstance was sufficient. It was not necessary that the appellants intended to encourage the drivers, just that they knew their silence would have this effect. Also confirms it is not necessary for an inactive participator to be present at the scene of the crime.

Question 33

Joint enterprise - definition/explanation

Answer 33

• Where two or more people are committing a crime together. The issue of accessorial liability arises when one of the parties then goes on to also commit a different crime.
• R v Gnango - D1 and D2 have a common intention to commit crime A. D1, as an incident of committing crime A, commits crime B.
• In a joint enterprise case, at the time of the accessorial offence, the accomplice was committing another offence with the principal. In a simple case of aiding/abetting, the accomplice is not committing an offence as a principal.

Question 34

Joint enterprise - key principles

Answer 34

• There is no need to show that D2 aided or encouraged the offence. It is enough that D2 was a party to the joint enterprise and had the relevant mens rea as an accessory.
• Crime B must be committed in the course of or be incidental to Crime A.
• A party cannot be liable for any offences committed before they join the enterprise.

Question 35

Secondary party/joint enterprise - mens rea

Answer 35

R v Jogee

(1) An intention to assist or encourage the principal’s conduct
(2) If the crime requires a mens rea, an intention that the principal will do the actus reus with that mens rea (procuring does not require this element of mens rea)
(3) Knowledge of existing facts or circumstances necessary for the offence to be criminal.

Question 36

Secondary party/joint enterprise - mens rea element 1: an intention to aid or encourage

Answer 36

D must intend:

(i) to do the act which aids or encourages; and
(ii) for it to aid or encourage the commission of the crime.

Lynch v DPP - members of the IRA threatened to kill Lynch, a taxi driver, unless he drove them to the house of a police officer. Lynch knew that the men intended to murder the police officer. Intention in this context does not mean desire; it was enough that Lynch had oblique intent.

R v Jogee - D does not need to have a positive intent that the crime be committed. It is sufficient that D intended that their act might assist the crime, even if it cannot be said that it definitely will do so. The jury should convict if it decides that D would not mind if the crime were committed: ‘D would be liable even if they had no further interest in whether or not P commits the crime.’

Question 37

Secondary party/joint enterprise - mens rea element 2: an intention that P will commit the crime with the necessary mens rea

Answer 37

• Not necessary for procuring, but is for the others.
• Two issues to consider:
  (i) Conditional intention; and
  (ii) Crimes where the mens rea does not correspond to the actus reus.

Question 38

Secondary party/joint enterprise - mens rea element 2: an intention that P will commit the crime with the necessary mens rea - (i) Conditional intention

Answer 38

R v Jogee - It is enough that D has a conditional intent that P will commit a crime with the necessary mens rea, e.g. if D supplies P with a gun to use in a burglary and intends P to use it to cause serious harm only if disturbed during the burglary, then D intends P to use the gun to cause serious harm.

• Best guidance for jury is to consider what D’s attitude would be if P did commit the crime. If D is pleased or accepting of the fact P acted in that way, then conditional intent can be found. If D is dismayed, the jury cannot find conditional intention. In that case, only oblique intent would suffice.

Question 39

Secondary party/joint enterprise - mens rea element 2: an intention that P will commit the crime with the necessary mens rea - (ii) Crimes where the mens rea does not correspond to the actus reus

Answer 39

R v Jogee - If D1 intends D2 to do serious harm to the victim, D1 will be liable for murder when D2 injures the victim with intent to do serious harm and the victim dies as a result. This will be despite the fact D1 could not be said to have directly intended murder. The same rule applies to s 20 and s 47 OAPA 1861.

Question 40

Secondary party/joint enterprise - mens rea element 3: knowledge of the facts or circumstances

Answer 40

• If the offence requires goods to be stolen, D needs to know that they are stolen.
• If the offence requires lack of consent, D must know that the victim does not consent.
• Knowledge includes wilful blindness; a defendant who deliberately shuts their eyes to the obvious will be deemed to have knowledge (R v J F Alford Transport)
• D need not know the exact details of the crime e.g. they do not need to know the identity of the victim or the day on which the crime will be committed.
• It is enough to know the principal may commit any of one of a number of crimes including the crime the principal does in fact commit.

Johnson v Youden - Builder committed an offence by selling a house for £250 more than the maximum permitted under a statutory regulation. The builder then instructed a firm of solicitors to act for him in the sale. Two of the partners in the firm had no knowledge of the earlier payment. Their convictions were quashed because they had no knowledge of the facts which gave the transaction its criminal character, so lacked mens rea.

R v Bainbridge - The knowledge that is required to be proved in the mind of the appellant is not the knowledge of the precise crime…but he must know the type of crime’

DPP v Maxwell - Maxwell as a member of the Ulster Volunteer Force and had driven the principals to a pub where they planted a bomb. The organisation had a history of violent acts with explosives and firearms. Even if Maxwell did not know which crime would be committed among a variety of offences, he knew that planting a bomb was amongst those crimes he could be assisting, so he was liable.

Question 41

Secondary parties - defendants with a lesser intent

Answer 41

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, that person will not be guilty as an accessory to murder but can be guilty as a principal for the crime of manslaughter.