Participation in Crime

Question 1

Terminology of participation

Answer 1

• Pereptrator
• Principal
• Co-perp
• Joint principles
• Accessory
• Secondary Party
• Accomplice
• Joint enterprise

Question 2

Accessories and Abbettors Act 1861 S.8

Answer 2

Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence…shall be liable to be tried, indicted and punished as an principle offender

Question 3

Criminal law recognises 2 types of offenders

Answer 3

1. the Perp - Principal offenders
2. Accomplices - secondary party

But by virtue of S.8 both are treated as principals

Question 4

Why distinction between Perp and Accessory matters?

Answer 4

• Accessory liability is derivative
• If offence if on of strict liability, the accomplice will still need to have acted with mens rea of secondary liability
• Fair labelling concerns

Question 5

How to distinguish between perp and accesory?

Answer 5

Not necessary for a charge to state whether A has been accused as perp or accessory but preferable to do so

Question 6

Types of offender: Principal

Answer 6

• Sole Perp
• Joint Perp
• Principals through innocent agency

Question 7

Types of Offenders: Secondary Parties

Answer 7

• Aiders
• Abettors
• Counsellors
• Procurers

Question 8

Joint criminal enterprise defintion

Answer 8

Jogee (2016); parasitic accesory luability is no longer head of liability, law took a ‘wrong turn’ in Chan Wing-Siu (1984)

Question 9

Basics for complicity - Jogee 2016

Answer 9

Jogee [2016]; It is a fundamental principle of the criminal law, that the accessory is guilty of the same offence as the principal…He share the physical act because even if it was not his hand that struck the blow…he has encouraged or assisted those physical acts. Similarly, he shares the culpability…”

Question 10

Ashworth and Horder, Principals of Criminal Law p.146)

Answer 10

“the criminal law regards offences involving more than one person as thereby enhanced in seriousness. Joint criminal activity often involves planning and a mutually reinforcing determination to offend. (…) When … people act as a group in committing crime, their offending may escalate in nature or broaden in scope as a feature of group dynamics .”

Question 11

Theoretical justifications for the basis of complicity

Answer 11

R v Mendez and Thompson [2010]; at its most basic level, secondary liability is founded on a principle of causation, that defendant D is liable or an offence committed by the principal actor/He has caused or materially contributed

Question 12

Kennedy (No.2) [2007]

Answer 12

Principal cause, accomplices encourage (otherwise influence) or help

Question 13

Stringer [2011] EWCA Crim 1396 at [48]

Answer 13

D’s conduct must have some relevance to the commission of the principal offence; there must be a connecting link…some form of connection between his conduct and the crime

Question 14

what is the connecting link between the conduct and the crime?

Answer 14

• Causation
• Contribution to the commission of the offence
• Association

Question 15

Leading case on accessory liability

Answer 15

R v Jogee [2016] - complicity is underpinned by ‘authorisation’

At 66; “there can be no doubt that if D2 continues to participate in crime A with foresight that D1 may commit crime B, that is evidence, and sometimes powerful evidence, of an intent to assist D1 in crime B. But is evidence of such intent (or, if one likes, of authorisation), not conclusive of it”

Question 16

Rules of complicity

Answer 16

1. The accessories actus reus
   Attorney General’s Reference (No 1 of 1975) [1975] 2 All ER 684 at 686 (Lord Widgery CJ);

“We approach S.8 of 1861 Act on basis that words be given their ordinary meaning…. We approach the section on the basis also that if four words are employed here ‘aid, abet, counsel or procure’, the probability is that there is a difference between each of those four words and the other three, because, if there were no such difference, then Parliament would be wasting time in using four words where two or three would do.”

Question 17

Rules of complicity; Assisting

Answer 17

Assisting;
a. Aiding = assistance before or at the time of the offence
b. Procuring = Cannot procure an offence unless there is a causal link between your actions as the commission of the offence”; Attorney-General’s Reference (No. 1 of 1975) [1975]

Question 18

Rules of complicity - Encouraging

Answer 18

a. Abetting = encouraging the perp during the event
b. Counselling = encouraging the perp before the event

Question 19

Procures requirements

Answer 19

• Requires causation but not consensus
• Assisting requires actual help
• Not all instances of complicity require ‘meeting of the mind’
• Timing; assistance or encouragement must be given before or at the time the crime is committed

Question 20

Joint enterprise before Jogee [2016]

Answer 20

Umbrella term that covered three distinct situations;

a. Joint perp
b. Accessorial liability; D2 as accessory who intentionally assists or encourages the PO
c. Parasitic Accessorial Liability; D1 & D2 participates in joint unlawful venture to commit crime. D2 foresees but doesn’t intend that D1 may go further and commit another crime, D2 fully liable for crime B on the basis of this foresight of crime B)

Question 21

R v Jogee [2016] Facts

Answer 21

• Killed a police officer
• Counselling

Question 22

The Accessories men rea

Answer 22

• Intent to assist or encourage
• With knowledge

Question 23

Foresight v Intent

Answer 23

‘Foresight may be good evidence of intention but it is not synonymous with it’ (Jogee at 73)

Question 24

Jogee at 94

Answer 24

Conditional intent that crime B should be committed if the occasion arose

Question 25

The limits of complicity; overwhelming supervening act

Answer 25

‘[I]t is possible for death to be caused by some overwhelming supervening act by the perpetrator which nobody in the defendant’s shoes could have contemplated might happen and is of such a character as to relegate his acts to history; in that case the defendant will bear no criminal responsibility for the death.’ (Jogee at [97])

Question 26

R v Tas [2018] EWCA Crim 2603

Answer 26

• Lack of knowledge of weapons doesn’t constituted supervenient acts
• Distinguishes OOSA from ‘mere escalation’

Question 27

Fact specific issue; Sir Brian Levenson P at 41;

Answer 27

Whether there is an evidential basis for OSA which is of such a character as could relegate into history matters which would otherwise be looked on as causative rather than mere escalation…”

Approach confirmed in Harper [2019] EWCA Crim 343
Confirmed again in Grant [2021] EWCA Crim 1243

Question 28

Limits of complicity: withdrawal - O’Flaherty

Answer 28

O’Flaherty [2004]; A person who withdraws before the moment of the actual commission of the crime by the PO, is not liable

Question 29

Limits of complicity: withdrawal - Rook [1993]

Answer 29

Mere failure to turn up is not sufficient

Question 30

Limits of complicity: withdrawal - Becerra and Cooper (1976)

Answer 30

D must serve ‘unequivocal notice’

Question 31

Limits of complicity: withdrawal - Otway [2011]

Answer 31

Withdrawal must be voluntary, real and have been communicated in good time

Question 32

Limits of complicity: withdrawal - Grundy [1977]

Answer 32

Withdrawal through attempt to prevent commission of principal offence

Question 33

Limits of complicity: withdrawal - Mitchell [1999] and Rajakumar [2013]

Answer 33

Communicating a requirement in pre-planned violence, but not in cases of spontaneous violence

Question 34

Liability for inchoate offences

Answer 34

Serious Crime Act Offences in s.44-46 remains

Question 35

The Tyrell Principal

Answer 35

R v Tyrell [1894] 1 QB 710, 712 Lord Coleridge; The Criminal Law Amendment Act 1885 was passed for the purpose of protecting women and girls against themselves. with the object…the Act of Parliament has made illicit connection with a girl [under 16] unawful.

Question 36

Gnango [2011] UKSC 59 at 17-18:

Answer 36

“…where the courts perceive that the legislation is designed for the protection of a class of persons. Such people should not be convicted as accessories to an offence committed in respect of them when they co-operate in it.”