Parties to a Crime Flashcards
Introduction
Defendants do not always work alone. A conviction for a criminal offence may not necessarily require the accused to do the act that
forms the actus reus of the crime.
For example, Fred could break into Ahmed’s house and commit burglary. However Mary could
also be liable for the offence if she:
* Assisted Fred by driving him to Ahmed’s house or provided a hammer with which to break the
window to gain entry;
* Encouraged him to carry out the burglary;
* Procured the offence by suggesting Fred commit the burglary.
All these modes of participation could make Mary liable for the offence as an accessory.
Joint enterprise.
Alternatively the parties might take part in a joint enterprise. Fred and Mary may break into Ahmed’s house together. Both enter the house, both intend to steal from the house, and both will be liable for burglary. If, in the course of the break-in, Fred confronts Ahmed and stabs him, killing him, Fred will probably be guilty of murder. Depending on her mens rea, Mary might also be guilty
of murder as an accessory.
1.1 Principal offenders
It is necessary to distinguish between the principal offender and accessories, otherwise referred to
as secondary parties.
Principal: The principal (P) is the person who, with appropriate mens rea, commits the actus reus of the offence. It is always possible to have more than one principal: if Fred and Mary break into a house together and both have an intention to steal they will be joint principals for
the burglary.
Innocent agents
In certain circumstances, a person may be guilty of an offence as a
principal, even if another person actually performs the actus reus. This occurs where the person acting can be described as an ‘innocent agent’.
Examples of this include where the person carrying out the actus reus is under the age of criminal liability or is deceived as to what they are doing.
Key case: R v Michael (1840) 9 C & P 356
A woman gave a child a dose of poison and the child gave it to the victim. The woman was the principal offender.
Key case: R v Stringer and Banks (1991) Crim LR 639
An employer told his employees to make accounting transactions which (unknown to those employees) resulted in fraudulent transfers. The employer was the principal and the employees were innocent agents.
1.2 Secondary parties
Secondary parties: Section 8, Accessories and Abettors Act 1861 identifies the ways in which someone can be an accessory to a crime. It provides as follows: Whosoever shall aid, abet, counsel or procure the commission of any offence whether the same be an offence at common law or by virtue of any Act passed, shall be liable to be tried, indicted and punished as a principal offender.
R v Jogee [2016] UKSC 8
The Supreme Court in R v Jogee [2016] UKSC 8 stated that the principles governing those who set
out on a joint enterprise are the same as for those who aid, abet, counsel or procure. There are
therefore five ways in which someone can be liable as an accessory:
* To aid
* To abet
* To counsel
* To procure
* To be a party to a joint enterprise
With the exception of procuring, these actions can be summarised as ‘assisting or encouraging the commission of the principal’s offence’. This was the term used in R v Jogee.
- Actus reus
Key case: Attorney General’s Reference(No 1 of 1975) 2 All ER 684
Lord Widgery stated: We approach s 8 of the 1861 Act on the basis that the words should be given their ordinary meaning, if possible. 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
Lord Widgery’s
However, despite Lord Widgery’s implication that the words used in the Act are ordinary words, capable of being understood without explanation, some discussion of the terms, and particularly the differences between them, will be of assistance.
2.1 Procuring
Key case: AG’s Ref(No 1 of 1975) 2 All ER 684
‘To procure means to produce by endeavour.’ In this case D added alcohol to P’s drink without his knowledge or consent. When P later got in his car and drove, his blood/alcohol concentration was higher than the prescribed limit. D had procured P to commit a drink-driving offence. There is no need for consensus. It is immaterial whether the procuring is relied on. In this case it was done without P’s knowledge or consent.
Key case: Beatty v Gillibanks (1882) 9 QBD 308
Officers of the Salvation Army arranged a meeting in Weston-super-Mare 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. They were not endeavouring to cause the violence. There must be a causal link between D’s act and the commission of the offence.
2.2 Aiding
This is perhaps the easiest term to understand. It requires the accessory to give help, support or
assistance to the principal offender in carrying out the principal offence.
Examples include:
* Supplying materials or tools to commit the offence (Thambiah v R [1966] AC 37)
* Giving information which helps the principal to commit a crime (AG v Able [1984] QB 795)
* Holding down a victim in assault (R v Clarkson [1971] 3 All ER 344)
Key case: R v Bryce [2004] 2 Cr App R 35
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, particularly as P had not fully made up his mind to kill when B drove him there. Despite this, the Court of Appeal held that B’s act could amount to aiding.
No causation
There need be no causation in the sense that but for the assistance the crime would not have
happened. There need be no consensus, eg if D sees P committing a crime and comes to P’s assistance by, for example, talking to or restraining a police officer who would have prevented P from committing
the crime, 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. An accessory before the fact
would come under the category of ‘aiding’. An accessory after the fact has been abolished. Such a person would now be convicted of
assisting an offender under s 4 Criminal Law Act 1967.
2.3 Counselling
This has been held to mean giving advice or encouragement before the commission of the
offence.
Key case: R v Calhaem [1985] QB 808
Held that ‘there is no implication that there should be any causal connection between the
counselling and the offence’. There need be no causal link eg but for the counselling, the crime would not be committed. However, there must be contact between the parties and a connection between the counselling
and the offence. The act done must be within the scope of the advice and the principal offender must know of the counselling, ie there must be consensus.
Key case: R v Jogee [2016] UKSC 8
Once encouragement or assistance is proved to have been given the prosecution does not have to go so far as to prove that it had a positive effect on P’s conduct or on the outcome - R v Calhaem [1985] QB 808. In many cases that would be impossible to prove. There might, for
example, have been many supporters encouraging [P] so that the encouragement of a single one of them could not be shown to have made a difference. The
encouragement might have
been ignored, yet the counselled offence committed.
2.4 Abetting
This is defined in the Oxford English Dictionary as ‘to incite, instigate or encourage’. Devlin J in NCB v Gamble [1959] 1 QB 11 suggested that it means encouraging at the time the
offence is being committed. This is in contrast to counselling which is encouraging before the commission of the offence. As with counselling, there need be no causal link and there must be communication. The principal must know they are being abetted.
Key case: R v Giannetto [1997] 1 Cr App R 1
Kennedy LJ considered what kind of encouragement might amount to abetting and concluded: Suppose somebody came up to G and said, “I am going to kill your wife”, if he played any part, either in encouragement, as little as patting him on the back, nodding, saying “Oh
goody”, that would be sufficient to involve him in the murder to make him guilty, because he is
encouraging the murder […]. Any involvement from mere encouragement upwards would
suffice.
2.4.1 Mere presence at the scene of the crime
This is not necessarily enough to count as abetting.
Key case: R v Coney [1882] 8 QBD 534: Three spectators at an illegal prize-fight were charged with battery as accessories (the principals
being the two fighters). Although the Divisional Court accepted that the presence of the spectators could be seen as an encouragement, since the fighters would not be fighting if there
was no audience, the conviction of the defendants was quashed as the trial judge’s summing up may have lead the jury to conclude that mere presence at the scene would be sufficient to amount to the offence.
Key case: Wilcox v Jeffrey [1951] 1 All ER 464
It is possible to abet by mere presence. H, an American jazz musician, played at a concert in London despite the fact that his permission to enter the UK prohibited him from working. W attended the concert and later wrote a favourable review in a magazine that he owned. It was held that W’s presence at the concert was an
encouragement to the offence.
2.4.2 Failure to prevent an offence
Where 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 the other to perform an illegal act and would therefore be abetting
Key case: R v Russell [1933] VLR 59
Parent: A husband who stood by and watched his wife drown their children was guilty of aiding and abetting the homicide. His deliberate abstention from action gave encouragement and
authority to his wife’s act.
Key case: Tuck v Robson [1970] 1 WLR 741
Publican: If a licensee of a pub stands by and watches their customers drinking after hours, the licensee is guilty of aiding and abetting them in doing so.
Key case: Du Cross v Lambourne [1907] 1 KB 40
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 in a
dangerous manner
Key case: R v J F Alford Transport Ltd [1997] 3 Cr App R 326
Employer: The company, together with the managing director and transport director, were convicted as accessories to offences of falsifying tachograph records, committed by 19 drivers employed by the company. They appealed, arguing that convictions required evidence of positive assistance or encouragement to commit the offence.
The Court of Appeal held that the company was in a position of control over the drivers and that passive acquiescence in such a circumstance was sufficient. It was not even necessary for the prosecution to prove that the appellants intended their acquiescence to encourage the drivers, just that they knew their silence would have this effect. This case also confirms that it is not
necessary for an inactive participator to be present at the scene of the crime.
