Secondary Participation In Crime

Question 0

R v Powell; R v Daniels; R v English 1999

Answer 0

Have been helpful and solved some of the complications -however as is always the case with criminal law, there is still plenty of room for further simplification and principled statutory reform.

Question 1

Criminal Law Act 1977 & s44 Magistrates Courts Acts 1980

Answer 1

-perpetrators of crimes (persons(s) who perform the actus reus of the crime) oftener have accomplices who assist or encourage them in the commission of the crime and who are known as accessories to the crime or secondary parties to it.

Under the Criminal Law Act 1977 & Magistrates Court Act 1980
-these accomplices are ‘liable to be tried…. and punished as a principal offender’ for the offence assisted or encouraged.

Question 2

R v Rogers 2003

Answer 2

Courts stretched to and beyond breaking point the notion of perpretation as accessorial liability would not have been possible in the circumstances.

Rogers: V died from an overdose of heroine which he had bought and injected into himself.

• he was assisted in this process by D, a drinking companion who held a belt around V’s arm as a tourniquet in order to raise a vein to facilitate the injection.
• the court astonishingly held that D administered as perpretator the noxious thing contrary to s23 of the OAPA1861.
• the reason for this perverse holding was that it was not an offence for V to administer a noxious thing to himself so that D could not have been liable as a mere accessory.
• there was no offence for him to assist, only an offence if he administered it himself (albeit jointly in conjunction with V) could he be liable.

Question 3

R v Kennedy (No 2) 2005

Answer 3

-Rogers was stretched even further-
D simply supplied and prepared heroin and handed the syringe to V for immediate injection.
-D did not directly assist in the injection process itself, much like Rogers.
-despite this fact. The Court of Appeal held that he perpetrated a s23 offence because he was acting in concert with V.

Question 4

Latif 1995

Answer 4

The Court in Rogers and Kennedy No.2 relied upon a misunderstood obiter dictum by Lord Steyn in Latif, to apparently hold that if D acts in concert with another, D perpetrates whatever actions the other person takes.

Question 5

House of Lords in Kennedy (No.2)

Answer 5

House of Lords in Kennedy took a divergent approach from that of the Court of Appeal.

-‘it is possible to imagine factual scenarios in which two people could probably be regarded as acting together to administer an injection. But nothing of the kind was the case here, and it is hoped that this principle is generally avoided’

Question 6

Accessories

Answer 6

S8 of the Accessories and Abettors Act 1861, as amended by Criminal Law Act 1977 provides that:

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

The prosecution must always prove that the accessory performed the actus reus with the necessary mens rea.

-the crime which the accessory is charged with aiding etc, must actually have been committed by the perpetrator.

It is possible to be guilty of aiding and abetting an attempt to commit a crime.

Question 7

Actus reus of being an accessory

Attorney-Generals Reference (No.1 of 1975)

Answer 7

Actus reus requirement can be minimal since the most marginal assistance can constitute aiding and encouragement.

The actus reus is defined by the words ‘aids, abets, counsels or procures’.
Despite each of these words having a distinct meaning, it is common practice to charge any accessory with the full sentence.
Glanville Williams describes this charge as using ‘the statutory language as a blunderbuss’.

AG Reference No1 = that the words should be given their ordinary meaning if possible- the use of the four words means that they are difference, as if they were the same Parliament would have used 1/2 etc.

Sir John Smith summarised the law as ‘procuring requires causation but not consensus; encouraging requires consents but not causation, assisting requires actual help, but neither consensus or causation’.

Question 8

Aids

Tuck v Robson 1970

Clarkson 1971

Answer 8

Helping or giving assistance to the perpetrator before or at the time of the commission of the offence.

Tuck: a pub landlord aided and abetted when he permitted customers to continue drinking alcohol after licensing hours.

Clarkson: A’s mere presence at the scene of a crime, where there was no duty to prevent the crime = not aiding.
There has to be evidence of assistance or encouraging (and an intention that A’s act would assist or encourage).

Question 9

Abets

Wilcox v Jeffery 1951

Answer 9

This means encouraging, instigating or inciting the commission of the crime by a person (normally) present at the scene of the crime.

Wilcox: American saxophone player was given permission to land in England on the condition that he took no employment, paid or unpaid in UK.
-magazine editor knew of condition imposed published a review of his concert. Editor had abetted musician.

However recent cases show that abetting can happen, not at the commission of the crime, but gave assistance before the crime.

Question 10

Counsels

Calhaem 1985

Answer 10

More or less the same as abets, except that encouragement etc occurs before the commission of the crime.

Calhaem: the Court of Appeal held that the word counsel should be given its ordinary meaning which is ‘advise, solicit or something of that sort’.

Question 11

Procures

Beck 1985

Answer 11

Means to cause or to ‘produce by endeavour’.

Beck: procure means causing the commission of the offence or bringing out its commission.

There must a causal link between the practices actions and the commission of the offence.

Beck: A secretly laced his friends drink with double sprites knowing his friend would shortly be driving with excess alcohol in his blood.
-A was subsequently charged with procuring this offence.
Court of Appeal held that he would be guilty if he knew:
a) that his friend was going to drive, and
b) that the ordinary and natural result of the additional alcohol would be to bring him above the statutory limit.

Question 12

Procuring:

Court of Appeal thought that procuring was different from the other three alternatives.

Answer 12

1) Meeting of minds between A and D?
- procuring= involves a shared intention by the accessory and the principal that the offence should be committed, but it does not necessarily involve any priory planning or discussion between them.
- also as Beck shows- A may procure even though the perpetrator has no idea what is happening.

Question 13

Assisting after the commission of the crime.

Answer 13

To be guilty as an accessory, the assistance or encouragement be given before or at the time of, the commission of the principal offence.

Question 14

What constitutes assistance or encouragement?

DPP for Northern Ireland v Lynch 1975

Clarkson 1971

Wilcox v Jeffrey 1951

Tambiah v R 1965

NCB v Gamble 1958

Answer 14

Assistance or encouragement may occur in any number of ways, from an early stage in the preparation of an offence, through to the moment of commission.

DPP for NI v Lynch= driving the perpetrator to the scene of the crime.

Clarkson= holding a woman down whilst she is raped.

Wilcox = opening a bank account to enable the perpetrator to pay in forged cheques

NBC v Gamble= supplying equipment or information for use in the commission of a crime.

Question 15

A supplies items for use in committing the crime.

Answer 15

Where A supplies items for use in committing the crime, does not matter whether the item is given, lent or sold to the perpetrator.
-it is assistance and whether the supplier will be liable as an accomplice depends on his mens rea.

Lomas, as explained in Bullock- provides an exception where the perpetrator is the owner of the item supplied and is therefore in civil law entitled to the return of the item.

However much doubt has been expressed as to the validity of this exception; on the basis that a person who returns a borrowed gun to the perpetrator knowing that he intends to kill someone with it should be guilty as an accessory to the murder when it takes place.

Question 16

Does mere presence at the commission of the offence without more constitutes assistance or encouragement?

Answer 16

Generally a person cannot become an accomplice merely because he fails to act to prevent an act he witnesses.

However, there are 2 exceptions to this rule:
1) where the accomplice has a right of control over the actions of the perpetrator and he deliberately fails to exercise.

2) exceptional circumstances where the criminal law imposes a duty in someone to act and they deliberately fail to do so.

Question 17

Where the accomplice has a right of control over the actions of the perpetrator and he deliberately fails to exercise.

Tuck v Robson

Du Cros v Lambourne 1907

J.F. Alford Transport Ltd 1997

Answer 17

Tuck: publican who stood by and watched his customers drinking after hours was guilty of aiding and abetting them in doing so.

Du Cros: owner of a care who, sitting in passengers seat does nothing to prevent his car from being driven recklessly by D is guilty of aiding and abetting D’s dangerous driving.

J.F Alford: drivers employed by D were illegally falsifying their tachograph records to reduce the number of hours driven to comply with permitted limits.
-found that since the company and it’s managing director had power to control the actions of the drivers, a deliberate decision to refrain from doing so would be positive encouragement for the drivers to do ruined falsifying the records.

Question 18

Exceptional circumstances where the criminal law imposes a duty in someone to act and they deliberately fail to do so.

Gibson and Gibson 1984

Russell and Russell 1987

Forman and Ford 1988

Answer 18

Where a parent stands by and watches another person ill-treat the parents child when he could reasonably prevent the offence.
-the parent would be an accomplice to the offence whereas a stranger, who has no duty to protect the child, would not.

Question 19

Smith v Reynolds -1986

Answer 19

If the accused was present pursuant to a prior agreement that the offence be committed, there is no doubt that his mere presence would constitute encouragement without the necessity for the prosecution to prove that he did anything further.

Question 20

Clarkson 1971

Answer 20

• where A’s presence was not accidental but yet equally not in pursuance of a prior agreement with the perpetrator - not entirely clear as to whitehead voluntary presence itself would constitute encouragement, even though no other act of assistance or encouragement could be proved.
• case law seems to suggest that it is a matter for the jury in each individual case to establish whether that voluntary presence itself would constitute encouragement.

Clarkson/Allan the presence of the A was not sufficient to encourage.
(Clarkson - man watched a woman being raped by three soldiers.
Allan- accused passively watched a fight which constituted affray).

Clarkson stressed that the prosecution must prove that A intended to encourage the perpetrator.

Question 21

The principal offence

Thornton v Mitchell

Answer 21

It is essential to prove that the principal offence that A is charged with aiding, abetting etc was actually committed.

Question 22

Joint unlawful enterprise

Answer 22

Where two or more people plan to commit an offence, and go ahead and commit that offence.

• if all participated in carrying out the plan to commit an offence.
• if all participated in carrying out the plan, all are liable - does not matter who carried out the actus reus of the offence

Question 23

R v Powell and English 1997

Answer 23

-to be liable for murder as part of a joint enterprise a person must have reliables that the principal offender might kill with the mens rea or murder.

Question 24

Petters and Parfitt 1995

Answer 24

Court of Appeal said that a joint enterprise to exist the D must have a common purpose or intention.
-not sufficient that they both separately intend the same thing; they must have made it clear to each other, by actions or words that they have this common intention though this may not be communicated until just before, or at point of committing the offence.

Peters: 2 D’s arrived separately at a car park, where the proceeded to attack the victim.
-V died as a result of the kick in the head, not clear which D had given the fatal kick since both admitted punching the V.

Question 25

Deliberate departure from the joint enterprise without the participation or agreement of A.

Davis v DPP 1954

Answer 25

A will not normally be liable as an accomplice to criminal damage and murder respectively because both are outside the scope of joint enterprise.

Davis: A was a willing participant in a pre-arranged gang fight on Clapham Common which ended wit one of the rival gang being stabbed to death.
Held that A was not an accomplice as to manslaughter as he did not know that the perpetrator was carrying a knife.
-(if A had known that the perpetrator was carrying a knife then its use would have been part of the common purpose.

Question 26

R v Rafferty and the fundamentally different act rule.

Answer 26

Rafferty: D had been involved in attacking the victim on a beach.
-left the group carrying out the attack to try and draw money from the ATM with the V’s card.
-when he returned he found that they had drowned he victim in the sea.
Court of Appeal allowed his appeal against conviction for being a secondary party on the basis that he had not foreseen the victim would be drowned.

Question 27

R v Mitchell 2008

Answer 27

Court of Appeal in Mitchell held that the law of joint enterprise murder has become immensely complicated and that pending consideration of the Law Commission proposals for reform in its 2006/07 reports:
-judges should give much simpler directions to juries.
Thomas LJ: the concept of joint enterprise is in the ultimate analysis based on a concept that should in most cases be susceptible to explanation to a jury in short order without a judge being justifiably concerned that, unless the law is explained in detail the higher courts will overturn the verdict.

Question 28

Foresight of possible departure

Powell;English 1999

Answer 28

Appeal cases heard at the same time by the House of Lords.

• Powell: case of the murder of a drug dealer who had been shot by one of a group of 3 men.
• prosecution could not prove who had actually fired the gun but each member of the group knew the existence of the gun.
• house of lords held that where A contemplates that the joint venture might possess actus reus of murder, A may be convicted of joint venture murder.

ACCORDING TO POWELL, A NEED ONLY FORESEE THR CRIME AS A POSSIBLE INCIDENT OF THE JV UNLESS THE RISK WAS SO REMOTE THAT THE JURY TAKE THE VIEW THAT THE SECONDARY PARTY GENUINELY DISMISSED IT AS ALTOGETHER NEGLIGIBLE.

Question 29

Rahman 2008

Answer 29

House of Lords in Rahman refined the Powell approach but academics have differed in their interpretation of the decision.

Rahman = a person will not be liable under the joint enterprise principles if the fundamentally different rule is satisfied.

Rahman- gang of up to 20 youths carrying wooden and metal poles had chased a mixed racial teenager through the streets of Leeds.
V was killed when he was stabbed in the back with a knife and injury was probably caused with an intention to kill.
4 men were convicted of murder having been part of the joint criminal enterprise having acted as secondary parties to the killing.

House of Lords held that the difference in mental intention between the principal offender and the defendants could not amount to a fundamental difference.

• following Rahman it appeared that he foresight required for liability as part of a JE was foresight with respect to the actions of the principal offender.
• dicta seemed to suggest that no foresight was required with regard to the mens rea of the principal offenders.

Question 30

R v A, B, C and D 2010

Answer 30

The Court of Appeal said that Rahman still required the D to foresee at least hat the principal offender would intend to cause GBH in order to be liable for murder on the basis of being part of JV.

Question 31

Assisting or Encouraging beforehand

Rook 1995

Wan and Chan 1995

Answer 31

The accessory is made liable because he is taking a deliberate risk of assisting or encouraging the further crime in the course of committing the agreed crime.

-principles applies whether A is present at the time of the crime or merely gives assistance or encouragement beforehand.

Question 32

Liability for a lesser offence

Uddin

Answer 32

Where D’s crime deliberately departs from the common purpose- if these principle exclude A’s conviction for murder, could he be guilty of the lesser offence of manslaughter?

if D’s act is fundamentally difference from any act foreseen by A, it is outside the scope of the joint enterprise and A cannot be in any way responsible for the act or its consequences.
House of Lords endorsed this principle in holding that English was not guilty of either murder or manslaughter, and subsequently applied by the Court of Appeal in Uddin.