Requirement for secondary liability

Question 1

Three requirements for secondary liability

Answer 1

Omissions still count, presence principle, duty principle

Question 2

When will an omission be sufficient for secondary liability

Answer 2

An omission will be sufficient for secondary liability in the form of aiding and abetting in two circumstances; identified in Charnley v R (CA):

1. Firstly, the Presence principle holds that a person deliberately present at scene of an offence will be liable as secondary party if circumstances establish that the omission was intended to aid or abet, and did aid or abet, the 1o party.
2. Secondly, the duty principle establishes that a person will be liable if they are subject to a legal duty and fail to discharge that duty

Question 3

case of man encouraging another man to have sex with someone under 16 and then doing nothing to stop it

Answer 3

Charnley

Question 3

The presence principle

Answer 3

there is no general 2o liability for standing by and doing nothing while an offence is being committed, even if you can stop it: we are not all police officers

Question 4

woman raped by soldiers at army party

Answer 4

r v Clarkson (presence case):

For the solders who did not partake: non-accidental presence might provide evidence of aiding or abetting if:
1. There is proof of actual aid or encouragement; and
2. There is proof of an intention to aid or encourage

Question 5

Molotov case

Answer 5

R v Pene
Mere knowledge by the Secondary Party that his conduct would be likely to encourage the commission of the offence (throwing Molotov into shop) did not mean an intent to encourage – open to jury to find that D acted solely to avoid contempt of his friends

Question 6

The duty principle

Answer 6

A present person who doesn’t do anything could be liable for failing to prevent or stop the offence.

Question 7

Drunk and unlicensed fiancé drove car of D without D doing anything to stop her

Answer 7

Cooper
Non-intervention can be aiding or abetting where there is deliberate non-exercise of a “legal and factual power of control” (Cooper is the legal owner of the vehicle which is a legal power). Factual power could be that he is stronger than his fiancé and he can overpower her and prevent her from driving.