Secondary Participation

Question 1

Stringer

Answer 1

Do not have to be there at D1’s murder, as long as you have assisted/encouraged/procured etc.

Question 2

Callow v Tillstone

principle

Answer 2

There is ALWAYS a mens rea requirements for D2, even if D1’s case is a crime of negligence or strict liability.

Question 3

Callow v Tillstone

facts

Answer 3

D1 , a butcher, strict liability offence of exposing unfit meat for sale. Butcher asked D2, who was a vet, whether the meat was safe to eat. D2 gave the wrong advice, said it was fine. But because D2 was only negligent, didn’t do it with MR, he incurred no criminal liability. D1 guilty of the strict liability offence even though hadn’t been negligent – sought professional advice and acted on it. Unfair rule?

D2 needs mens rea

Question 4

Smith v Mellors

Answer 4

Prosecution could show that there were 2 men who had been travelling in a car, and both of them were over the drink driving limit. But/ could not prove which one was the driver. Drink driving is a strict liability offence, but the secondary party has to know the circumstances, so would have to know that the other (the driver) was over the limit. Held: if you can show that both parties know that the other is intoxicated, then they both have mens rea and it does not matter which was the driver

Question 5

Yemoh

Answer 5

Principal offender for a murder was never specifically identified, but it was clear that the victim as killed with intent (stabbed). All the members of the gang who were party to the murder, and who met the requirements of secondary liability, could all be convicted

Question 6

Macklin & Murphy’s

Answer 6

Joint principle case

If several persons act together with a common intent, every act done by each of them in furtherance of that intent is done by all. If a deadly weapon be used an intention to kill is to be inferred – not so from a blow with a fist. From continued violence, after much beating, an intention to kill may be inferred.

Question 7

Bingley

Answer 7

Joint principles

two men, each forged a different part of the same bank note. Joint principals.

Question 8

Gnango

Answer 8

Majority of the SC concluded that Gnango was guilty of murder even though he was the intended victim and because it was like a duel between the two men, they regarded him as guilty either as a secondary party or as a joint principal offender. Even if get over the V problem, at most G is a secondary party, his agreement to shoot and be shot out may encourage the other party to shoot at him but he doesn’t fire the final shot, G did so freely. Criticism by Lord Kerr: G cannot be said to be the cause of the V’s death in that situation. Only a secondary party.

Question 9

Michael

Answer 9

Principles and innocent agents

here, M, the mother, left her baby with a child minder, handing over a bottle which M said contained medicine for the child but in fact contained a slop acting poison. Was setting up the childminder. The childminder chose not to give the medicine – thought it didn’t need it. But her child, 5 years old, was playing around and gave the milk to the baby. M was D1, acting through the child, a non culpable infant.

Question 10

s8 Accessories and Abbettors Act 1861

Answer 10

A D2 can be tried as a D1.

Question 11

Change in language

Answer 11

Jogee/Stringer/Law Commission changes ‘aid/abet/counsel’ = ‘assist/encourage’, while procuring is a separate head of liability

Question 12

L v CPS

Answer 12

Whether D’s conduct amounts to assistance or encouragement is a question of fact.

Question 13

Jogee;Ruddock

Answer 13

1) Association between D1 and D2 may not involve assistance or encouragement
2) Just because D2 is present at the scene may not involve assistances or encouraging.

However, association and presence are relevant evidence on whether there was assistance or encouragement.

3) 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 D1’s conduct or on the outcome.
4) Mens rea - intention does not mean desire or purpse.

Question 14

Coney

Answer 14

Presence at crime of scene is not enough evidence

The two defendants were present at an illegal bare fists prize fight. It did not appear that the defendants took any active part in the management of the fight, or that they said or did anything. It was held to be a misdirection to tell a jury that mere presence at an illegal prize fight was sufficient for there to be a conviction of the defendant for abetting the illegal fight. It is simply one factor for a jury to take into account.

Question 15

Clarkson

Answer 15

Presence at crime of scene is not enough evidence

two solders accidentally came across a man committing rape, they stayed to watch. Held: not guilty because mere presence is not enough evidence, needed:

(a) the presence of the defendant at the scene of the crime actually encouraged its commission, and (b) the accused had intended their presence to offer such encouragement.

Question 16

Does assistance involve the meeting of minds?

Answer 16

No

D2 may ‘assist’ D1’s burglary by leaving a window open at V’s house

-Stringer

Question 17

Does encouraging involve the meeting of minds?

Answer 17

Yes

o E.g. if D2 sends D1 a letter encouraging him to murder V this wont make D2 guilty if there is no evidence that D1 ever received the letter
o E.g. not actual encouragement to shout encouragement to someone who cannot hear it.

• Stringer

Question 18

Stringer

Answer 18

1) Assistance does not need a meeting of minds

2) Encouragement needs a meeting of minds

Question 19

Allan

Answer 19

There must be a meeting of minds in encouragement.

Was proved that D2 stood by watching a fight with a secret undisclosed intent to join in to support D1 if needed. Without communication of that intent either, by prior agreement or at the time, it was found that his intention alone was not sufficient.

Question 20

NCB v Gamble

Answer 20

D2 may assist via the unremarkable sale or supply of ordinary item for use in crime such as duct tape to use in a robbery, even if D1 could easily buy it elsewhere

D2 operated a bridge. D1 was a lorry driver. D2 gave D1 the ticket to get out onto the highway, even though they knew it was a crime. Held: this was assistance

Discussion: giving a tool to someone to do a job is assistating. But qualifys this to say that if D2 sells duct tape to D1, and then after finds out his criminal intention with it, D2 is not liable because he is merely avoiding civil liability. This was based on Lomas. Have to return item or civil wrong.

Question 21

Lomas

Answer 21

D1 asked D2 to return to him an item which he wanted to use in a crime. Outcome was that D2 could lawfully return the item even though he knew of D1s plan.

Question 22

Calhaem

Answer 22

Once encouragement or assistance is proved to have been given, the prosecution does not have to go so far as to prove as against an accessory, that it had had a positive effect on the principle offenders conduct or on the outcome

There must be “some connection”.

D2 hired D1 to kill v. D1 killed V but not out of contract but for another reason. Held: once encouragement is proved, do not have to prove a positive effect on D1’s conduct.

Question 23

Luffman

Answer 23

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 D1’s conduct or on the outcome

hitman took contract to kill V but then said he did it in a robbery which had gone wrong and not because of the contract. CA said that it was within the scope of what D2 had encouraged D1 to do and this established a connection which was all requirement.

Question 24

Stringer

Answer 24

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 D1’s conduct or on the outcome

D2]’s conduct need not ‘cause’ [D1] to commit the offence in ‘but for’ sense – but must ‘have some relevance to the commission of the offence’ in sense of ‘some connecting link’

Question 25

Giannetto

Answer 25

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 D1’s conduct or on the outcome.

OBITER CA gave an example of D2 who is told by D1 that D1 intends to murder D2s wife. D2 replies “goodie”, the CA said this would be enough for encouragement , or a pat on the back, even though D1 would have done it anyway. This is an example of how there only needs to be a tenous link

Question 26

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 D1’s conduct or on the outcome.

Jogee

Answer 26

There must be a “Realistic” factual link, and if D2s contribution has “faded into the background”, then it does not connect the crime.

Question 27

Does assisting/encouraging/procuring need causation?

Answer 27

Procuring needs proof of causation.

D2 and D1 do not have to meet minds in procuring.

Question 28

Rubie v Faulkner

Answer 28

Guilt by omission in failing in a duty

D2 was a driving instructor who failed to control D1s dangerous driving and he was convicted.

Question 29

Du Cros v Lambourne

Answer 29

Can be guilty of an omission by being an encouraging presence PLUS a power to control the principle.

Ð – D stopped for speeding and said his passenger had been driving at the time, but it was his car so it was said that he was the D2 because he had the power to control her and failed to do so.

Question 30

Cassady v Reg Morris Transport

Answer 30

Can be guilty of an omission by failing to control without presence. D turning a blind eye.

employer who took no notice of his drivers disregard of drivers hours could be secondary party.

Question 31

Mens rea for assisting or encouragin

Answer 31

Must KNOW of he facts which makes D1’s conduct criminal.

It is knowledge not intention.

If D1s crime requires a particular intent, it also requires that D2 act with that particular intent, therefore, if D2 gives D1 a knife, and D1 uses that knife to murder V. D2 is only guilty of murder where he intends that D1 acts with intent to kill or cause GBH.

Question 32

Lynch v DPP for NI

Answer 32

D2 drove D1 to a scene of a murder, therefore he could now be said to assisted even though he was horrified by the plan. Therefore, Intention here is not about purpose or motive but does he know what he is doing and mean to do it. This is why Lynchs liability relied on duress because he had criminal intent by virtue of this doctrine.

Question 33

Johnson v Youden

Answer 33

Before a person can be convicted of (Assisting) the commission of an offence he must at least know the essential matters which constitute that offence. He must know all the facts!! It does not matter that he did not know the fact was an offence.

Question 34

O’Neill v Gale

Answer 34

wife helped her bankrupt husband to set up a fraud investment scheme by opening a bank account for him. This enabled him to perpetrate the scheme. This was a civil claim. Civil court said she would have been criminally liable here, she knew all the facts, she may not have known that her husbands scheme was illegal but like in Johnson v Youden, this does not matter.

Question 35

Bainbridge

Answer 35

Do does not need to know the exact target of the offence povided he knows either:
1) the type of offence intended by P.

The defendant had supplied some cutting equipment which was subsequently used to break a bank. He claimed that he had thought the equipment might be used for some illegal purpose, such as breaking up stolen property, but that he had not known that it was to be used to break into a bank.

The Court of Appeal held that it was essential to prove that the defendant knew the type of crime that was going to be committed. Held: it was not enough that he knew that some kind of illegality was contemplated.

Question 36

DPP v Maxwell

Answer 36

Do does not need to know the exact target of the offence povided he knows either:
2) he has given P liberty to choose from a “menu” of possible offences.

D2 guided bombers to target, he knew that some military operation was planned but could have been of a range of things (shotting, bombing, arson etc).Held: that if D2 contemplated more than one possibility but lends his assistance to whichever of those possibilities D1 chooses, then D2 is guilty.

Question 37

Jogee and mens rea

Answer 37

D2 must intend to assist or encourage D1 to act with that specific intent. It is not enough that D2 acts with foresight that D1 might do it. There must be a proper intent.

where the offence does not require MR, the only MR required of D2 is that he intended to encourage/assist D1 to do the prohibited act, with knowledge of any facts and circumstances necessary for it to be a prohibited act’

Question 38

Saunders and Archer

Answer 38

Knowledge of identity of V not ‘essential’ unless V is specified and D1 deliberately changes plan:

– this rule says that D2 escapes liability if there is a “substantial variation” by D1, such as where where D2 encourages D1 to kill X and D1 deliberately kills Y instead. In this situation, D2 gets off.

Here: D2 gives D1 a poisoned apple so D1 can murder his own wife, D1 gives the apple to the wife, the wife has a small bite and gives it to their child. The child then ate the apple and died. D1 was liable for that dead (Caused it and knew what he was doing). D2 held: because of deliberate change of plan by D1 he was not liable.

Question 39

S v Robinson

Answer 39

Knowledge of identity of V not ‘essential’ unless V is specified and D1 deliberately changes plan: killing V without consent different from killing with consent.

¥ Victim agreed to be shot dead by D1 so his family could collect insurance on his life. Held: family not liable as secondary parties when V lost his nerve and changed his mind but D1 shot him anyway. D1 was liable for murder, but his variation from the plan was regarded as sufficiently substantial for them not to be parties. Although, they were party’s to the attempt of murder.

Question 40

Bristow

Answer 40

Constructive liability may apply to both D1 and D2, eg for death occurring in course of unlawful act manslaughter

go out together to burglary and in course someone is killed, then provided the act has the quality of being a “dangerous act”. Then all parties to that burglary can be liable for UAM.

Question 41

Chan Wing Siu

R v Powell

Answer 41

Established parasitic liability.

Question 42

Mitchell

Answer 42

parasitic liability potentially scooped up some very peripheral players and labelled them murderers.

Laura Mitchell was involved in a fight over a taxi with her boyfriend and others. M then began to look for her shoes which had come off during the fight. Two of her friends went to a nearby house and returned to the car park with a mace, CS gas and knuckledusters. A more vicious fight began, during which V was murdered. Despite this, M was convicted of murder, using joint enterprise rule that she must have had some foresight that things could have gotten worse.

Question 43

Jogee on Joint enterprise:

Answer 43

1) The line of cases, including Powell, that follow Chan Wing Siu misinterpreted the common law rule.
2) ‘Parasitic’ liability is not a special case. The issue in all cases of secondary liability is whether D2 was in fact a participant in the crime, and whether he intended to encourage or assist D1 to commit it.
3) If offence requires D1 to act with intent, D2 must intend (absolutely or conditionally) to assist or encourage D1 to act with that intent
4) Conditional intent includes, for example, an armed robbery where D2 hopes it will not be necessary for D1 to use the gun, but intends that D1 should do so, and cause at least gbh, if they meet with resistance.
5) Mere foresight is not enough (old law is wrong).
6) D2 who participates in robbery but without the intention for murder may be convicted of manslaughter if the Newbury & Jones rule applies
7) it 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’.
8) The fact that D2 knows D1 has a weapon is relevant as to whether D2 had intent.

Question 44

C

Answer 44

Judge gave criteria of when judges should leave things to parliament.
This applied to parasitic liability.

Question 45

Miller Hct Aus

Answer 45

Austriaian court has rejected Jogee;Ruddock

Question 46

Johnson

Answer 46

Number of appeals based on Jogee, none of these were allowed by CA. Johnson involved 6 appeals and all have been turned down. Thus, proving what the SC says that the evidence for conviction is likely to be the same under the new law as under old law. Only difference is what inference you draw from it. CA was able to see that prosecution could have gotten a conviction on at least conditional conviction

Question 47

Tyrrell

Answer 47

V cannot be D2 where the crime (unlawful sexual intercourse with girl under 16) was enacted to protect V.

Said that a crime enacted by a statute to protect the victim was not one for which the victim could be convicted themselves. Prosecution for unlawful sex with girl under 16, question whether girl herself was a party to the crime? Held: no because parliament enacted that rule for that situation, she cannot be a party.

Question 48

Clarke

Answer 48

Intention to frustrate crime

if D only takes part initially with intention of frustrating the crime then he should not be regarded as a secondary party. Here it was an informer which tried to bring D1 to justice. Police informers are warned not to take actual part in crime because we do not know how far this defence will protect you. Defence if secondary party withdraws from action, but conditions attached.

Question 49

Becerra and Cooper

Answer 49

Withdrawal

joint enterprise to burgle, householder disturbed D1 and D2. D2 knew D1 had knife because he had given it to him so he knew he might use it. D2 yelled out “lets go” to D1 and ran away. D1 stayed and stabbed the householder. Held: D2 had not satisfactory withdrawn from enterprise. Where practicable, it requires him to give unequivocal notice that if he proceeds he does so without further aid and assistance.D2 may escape liability by withdrawal before D1 commits the offence but this is not merely achieved by repentance: ‘where practicable and reasonable [this requires that he ] serve unequivocal notice upon the other party…that if he proceeds…he does so without the further aid and assistance of those who withdrew.’ In some cases, D2 may need ‘physically to intervene’ eg to prevent an imminent attack by D1.

Question 50

Bourne

Answer 50

D1 not liable: May D2 be convicted?

1) Where D1 has a defence such as duress but D2 does not:

D2 was convicted of forcing his wife to commit a sex act with an animal, had she been prosecuted would have had a defence of duress. Howe - if crime is murder, then d1 and D2 will be prosecuted anyway, D2 cannot hide behind a defence open to D1.

Question 51

Cogan &Leak

Answer 51

D1 not liable: May D2 be convicted?

(2) Where D1 does the act but lacks mens rea, whereas D2 has mens rea

D2 encouraged D1 to penetrate the victim, knowing that she was not consenting, D1 lacked mens rea (see from date it is the Morgan era for subjective rape, did not need a reasonable belief. D1 was acquitted, CA thought possible to convict D2 was encouraging the actus reus, but this is different from how we look at secondary liability

Question 52

Thornton v Mitchell

Answer 52

D1 not liable: May D2 be convicted?

No actus reus by D1 and not a case of innocent agency

D1 was a bus driver of a large bus, acted properly in asking D2 to help him reverse, D2 gave the wrong advice and D1 hit a passer-bye. This was not careless driving on D1, D2 was wrong. On the facts, it is right that we let D2 off as he was only negligence and negligence is not enough but same principle would still apply even though he did it maliciously.

Question 53

Blackshaw

Answer 53

Encouraging/assisting intentionally (s.44)

no requirement of actual assistance or encouragement

Question 54

Sutcliffe

Answer 54

s44

use of Facebook by D to incite contacts to disorder

Question 55

Sadique

Answer 55

s46

Addresses the Bainbridge/Maxwell issue of the ‘menu’ of offences where D does not know which P will choose
Offence challenged for vagueness in Sadique

Question 56

R v Gullefer

Answer 56

Attempted murder

– gives us a definition of “more than merely preparatory”. CA said that actus reus begins when “the merely preparatory act comes to an end AND the defendant embarks on the crime proper”.

[The actus reus] begins when the merely preparatory acts have come to an end and the defendant embarks upon the crime proper. When that is will depend upon the facts in any particular case.”

Question 57

Tosti

Answer 57

Even allowing for the point that whether an act is more than merely preparatory is a question of fact (see s.4(3)), some decisions seem hard to reconcile.

746 D intended to burgle a locked barn so he hid his tools in a hedge and went to look at the padlock, he was examining it when caught. His conviction for attempted burgly was upheld, he had “taken the first steps” in burgley.

Question 58

Geddes

Answer 58

d trespassed in a school lavititory, carring a knife, rope and binding tape, intending to kidnap a child from the school – his conviction for attempted false imprisonment was quashed. CA thought he had equipped himself for the offence but had not moved passed preparation.

Question 59

Pearman

Answer 59

S.1(1) CAA requires intention to be proved even where the full offence is satisfied by something less

Question 60

Pearman

Answer 60

attempted murder

Ð no need to prove direct intent, in sense of purpose of aim, enough that D acts knowing that he is going to cause the crime.

Question 61

Walker & Hayles

Answer 61

Two men who threw victim off third floor balcony and V survived was guilty of attempted murder if they foresaw his death as “very highly probable”. CA upheld conviction on basis that it was still safe even though what trial judge should have said was “virtually certain” ( wollin/nedrick)

Question 62

Khan

Answer 62

Ð Ca thought D was guilty of attempted rape if he had sex being reckless whether V consented. If he succeeded in having sex, this would be rape. This is hard to reconcile with wording of act itself.

Question 63

Pace

Answer 63

BUT NOT mere suspicion (even if sufficient for complete offence)

Khan distinguished on facts. D was charged with attempting an offence under proceeds of crime act 2002. They stole led as though it were scrap metal and then processed it. Prosecution case was that D merely suspected that it was stolen metal, this was held not to be enough for an attempt. Even though had they done the crime, suspicion would have been enough. Court though prosecution needed to demonstrate knowledge or belief on behalf of D that the goods were stolen. Not clear where this leaves Khan, they do not overrule it they just say it is not decisive.

Question 64

Haughton v Smith

Answer 64

At common law, D could not be convicted of attempting a crime if it was physically impossible of achievement:

But law com 102 reverses this rule.

Question 65

Shivpuri

Answer 65

¥ D was in possession of what he believed to be a controlled drug but it was actually not a drug. HL accepted that he was guilty of offence but nothing wrong with intention that s1(3) needed to cure.

Question 66

Shillam

Answer 66

Statutory conspiracy

Requirement of agreement of 2 or more people: “shared criminal purpose”.

Question 67

Chrastny

Answer 67

Statutory conspiracy

Requirement of agreement of 2 or more people: D must know of existence of others- may not have met:

Question 68

Jackson

Answer 68

Ð D were convicted of conspiring to pervert justice when agreed to injure a man who was on trial so that if he was convicted the court would treat him more leniently. Court held: this could be a conspiracy even though the condition that victim gets convicted to get sympathy was a contingency planning.

Question 69

Anderson

Answer 69

Statutory conspiracy

Ð Suggests that what D has to intend to do is play his part in carrying out the agreement. D had agreed to supply equipment for breaking out of prison, he was only interested in the money for the goods not whether the plot was carries out or not.

Question 70

Goddard

Answer 70

2 men communicating over the internet about kidnapping a child, IF it was true that it was fantasy and no intention to carry out, it would not be a conspiracy. . must be some evidence of intent to carry out.

Question 71

mens rea for secondary participation

Answer 71

1) D must intend to assist/encourage/procure
2) D must have knowledge of all the essential facts
know of the particular type of offence
know of the range of offences
3)