Topic 6 - Complicity - Cases

Question 1

Aiding, Abetting, Counselling and Procuring - legislation

Answer 1

> S. 8 Accessories and Abettors Act 1861:
S. 8 - Abettors in misdemeanors:
Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender.

Question 2

Aiding - cases

Answer 2

1. NCB v Gamble [1959]

2. JF Alford [1997]

Question 3

Aiding - NCB v Gamble

Answer 3

> National Coal Board v Gamble [1959] 1 QB 11:
-The accessory need not have the motive of encouraging the crime i.e., oblique intent is sufficient.
-Truck driver was allowed to carry an excess load of coal by an employee of the National Coal Board (D).
-The truck driver was convicted of contravening the Motor Vehicles (Construction and Use) Regulations, 1955.
-D was tried as accessory to the offence and convicted.
-D appealed on the basis that it had no motive to encourage the commission of the principal offence.
-High Court dismissed appeal as the question of motive was irrelevant.
Devlin J:
-Aiding and abetting requires intention to aid as well as of knowledge of the circumstances, and a positive act of assistance voluntarily done.
-Citing R v Steane, intention to aid can be presumed where assistance to the criminal is a natural and probable consequence of supplying an essential material.
-Purpose or motive of encouraging the crime is not necessary, an indifference to the result of the crime does not of itself negative abetting.
-“If one man deliberately sells to another a gun to be used for murdering a third, he may be indifferent whether the third man lives or dies and interested only in the cash profit to be made out of the sale, but he can still be an aider and abetter.”

Question 4

Aiding - JF Alford

Answer 4

> R v JF Alford [1997] 2 Cr APP R 326:
-An omission can amount to aiding and abetting where the defendant has control over the principal and knowledge of the offence.
-Where there is such knowledge, deliberately turning a blind eye is no defence.
-Truck drivers made false entries on tachograph record.
-The company, managing director and transport manager (Ds) were charged with aiding and abetting their offence.
-CA allowed appeal; convictions quashed.
Kennedy LJ:
-Where D has knowledge of the principal offence, the ability to control the action of the offender, but deliberately refrained from doing so, he is guilty of aiding and abetting.
-Citing NCB v Gamble, an accessory must have intended to do the acts which he knew to be capable of assisting or encouraging the commission of the crime, but he need not have intended that the crime be committed.
-Thus, if the management’s reason for turning a blind eye was to keep the drivers happy rather than to encourage the production of false tachograph records that would afford no defence.
-On the facts there was insufficient evidence that Ds had knowledge of the drivers’ actions, thus the convictions were overturned.

Question 5

Abetting - case

Answer 5

1. Clarkson [1971]

Question 6

Abetting - Clarkson

Answer 6

> R v Clarkson [1971] 1 WLR 1402:
-Aiding and abetting must entail positive encouragement (outside of the exception in Alford).
-Ds stood by and watched as a woman was raped.
-There was no evidence of actual participation or verbal encouragement.
-CA allowed appeal; convictions for aiding & abetting were quashed.
Megaw LJ:
-Mere presence at the scene is not enough.
-The prosecution had to establish that Ds not only intended to encourage but also actually encouraged the offence.

Question 7

Counselling - case

Answer 7

1. Calhaem [1985]

Question 8

Counselling - Calhaem

Answer 8

> R v Calhaem [1985] QB 808:
-D can be guilty as an accessory for counselling without any causal link between the counselling and the principal offence.
-D had counselled Z to murder the V.
-Z decided not to carry out the murder but had gone berserk and eventually killed V anyway.
-D was convicted of murder under s8 Accessories and Abettors Act 1861.
-D appealed her conviction on the basis that there was no causal connection.
-CA dismissed appeal.
Parker LJ:
-‘Counsel’ is to be given its ordinary meaning: “advise”, “solicit” or something of the sort.
-Under the 1861 Act, there is no implication of a causal connection between counselling and the offence in the word ‘counsel’.
-D is guilty if the principal offence is committed by the one counselled acting within the scope of his authority and not in the accidental way

Question 9

Procuring - cases

Answer 9

1. Blakely & Sutton [1991].

2. A-G’s Reference (No. 1 of 1975) [1975].

Question 10

Procuring - Blakely and Sutton

Answer 10

> Blakely v DPP [1991] RTR 405:
-MR of procuring: intention to do that act that caused the principal offence and actual knowledge of the risk that the principal offence will be committed as a result.
-B was having an affair with T.
-At a pub, T told B that he intended to go home to his wife.
-B’s friend S suggested that if they added alcohol to T’s tonic water, T would not drink and drive.
-T left before they could tell him and was subsequently found to be over the limit.
-B and S were charged with procuring the offence.
-The judge directed the jury to convict if B and S were reckless as to whether T would have committed the offence.
-Divisional Court allowed the appeal - the judge’s direction could have resulted in conviction on the basis that B and S had given no thought to the risk that T would commit the offence.
McCullogh J:
-The MR of procuring an offence requires an intention to do the act which to a significant extent caused the commission of the offence by the principal offender.
-It also requires advertent recklessness, meaning that the accused contemplated the risk that his act would or might bring about or assist the commission of the principal offence, but nevertheless went on to do it intentionally.
-Inadvertent recklessness, where the accused has given no thought of the risk is not sufficient.
-Use of the word ‘recklessness’ was best avoided when considering the MR required of a person accused of procuring.

Question 11

Procuring - A-G’s Reference (No. 1 fo 1975)

Answer 11

> Attorney-General’s Reference (No. 1 of 1975):

• D added alcohol to a motorist’s soft drink without the motorist’s knowledge or consent, despite knowing that the motorist would be driving home soon afterwards.
• The motorist was stopped by the police on the way home; his blood alcohol concentration was above the prescribed limit, contrary to s.6(1) of the Road Traffic Act 1972 and was thus convicted of the offence.
• D was charged with aiding, abetting, counselling or procuring the commission of the motorist’s offence under s.8 of the Accessories and Abettors Act 1861 but was later acquitted due to no case to answer.
• The Attorney-General made a reference to the Court of Appeal.
• A-G requested the CA to advise him whether D was entitled to the ruling of no case to answer, which was based on the argument that there was no shared intention between the aider and abettor (the defendant) and the perpetrator of the principal offence (the motorist).
• It was also found that D did not positively encourage the motorist to drive – even though he knew the motorist was about to do so.
• The Court held that since the defendant put alcohol into the motorist’s drink surreptitiously, i.e. without the motorist’s knowledge, and this alcoholic drink caused the motorist’s offence (as the motorist would not have driven, had he known that he consumed alcohol), D actually procured the commission of the motorist’s offence.
• As a result, the ruling of no case to answer was wrong and D was not entitled to this ruling.

Question 12

Mens Rea - cases

Answer 12

1. Bainbridge [1960].
2. DPP NI v Maxwell [1978].
3. Bryce [2004].
   (4. Blakely [1991]).

Question 13

Mens Rea - Bainbridge

Answer 13

> R v Bainbridge [1960] 1 QB 129:
-MR of aiding and abetting: the accessory must have knowledge of the intention of the principal to commit an offence of the type of offence that was actually committed.
-A bank was broken into by means of oxygen cutting equipment, sold by D.
-D was charged with being an accessory.
-D admitted that he had suspected that the equipment was wanted for something illegal but denied that he had knowledge that it was to be used for any such purpose as it was used.
-The judge directed to the jury to convict if they were satisfied that D had knowledge of the intention to commit the type of crime that was committed.
-Must D know the particular location and date at which the break in would be committed?
Lord Parker CJ:
-The judge was correct in directing that it is sufficient to show knowledge of the intention to commit a crime of the type which was committed, and something done, with that knowledge, to help in the commission of the crime.
-It is not necessary to show knowledge of particular crime, meaning the particular date and premises concerned.
-Suspicion but not knowledge of the type of offence intended to be committed is insufficient.

Question 14

Mens Rea - DPP NI v Maxwell

Answer 14

> DPP NI v Maxwell [1978] 1 W.L.R. 1350, [1978] 3 All ER 1140:
-Knowledge of the type or range of possible offences that may be committed by the principal, but not the specific offence, is sufficient.
-D was a member of the Ulster Volunteer Force, which conducted terror attacks in Northern Ireland.
-D led other members of the UVF to an inn in which they planted a bomb.
-He was later convicted as an accessory.
-D appealed on the basis that was only told to drive and was not informed of the bombing to be committed.
HoL dismissed the appeal:
-Knowledge of the actual principal offence is not required for a person to be convicted of aiding and abetting.
-It was sufficient if the person giving aid knew the type of offence to be committed or the essential matters constituting the offence.
-D, being a member of an organisation that carried out armed attacks on persons or property, knew when he acted as a guide that he was taking part in an attack.

Question 15

Mens Rea - Bryce

Answer 15

> R v Bryce [2004] EWCA Crim 1231. [2004] 2 Cr. App. R. 35:
-An accessory only needs to have foresight of the possibility and not certainty of the principal offence being committed.
-D drove the principal offender, X, to a caravan near the victim’s home where X hid and then murdered the victim.
-D was convicted of murder as an accessory.
-Evidence was given that while X was in the caravan, X had reservations and had at one point decided against the murder before changing his mind again.
-D appealed on the ground that at the time his assistance was provided, X had not formed the intention to commit the murder.
-CA dismissed the appeal; it was enough that D had foreseen the risk of murder being committed.
Potter LJ:
-It was not necessary for the prosecution to prove that D’s acts of assistance were performed at a time when X had formed the necessary intent for murder.
-All that was necessary in the accessory was foresight of the real possibility that an offence would be committed by the person to whom the accessory’s acts of assistance were directed.
-Elements of aiding and abetting:
1. D in fact assisted the later commission of the offence.
2. D did the act deliberately realising that it was capable of assisting the offence.
3. D, at the time of doing the act, contemplated the commission of the offence by P, that is, he foresaw it as a real or substantial risk or real possibility.
4. When doing the act D intended to assist P in what he was doing.

Question 16

Joint Enterprise - background

Answer 16

> For a while it was suggested in the light of the Privy Council decision in ‘Chan Wing-Siu’ that there was an additional doctrine of ‘Joint Enterprise’ or ‘Parasitic Accessory Liability.
This idea was laid to rest by the SC decision in Jogee, which reaffirmed the standard principles of secondary liability outlined above.

Question 17

Joint Enterprise - cases

Answer 17

1. R v Chan Wing-Siu [1985] - no longer applies.
2. R v Jogee [2016]
3. R v Anwar [2016]
4. R v Johnson (Lewis) [2016]
5. R v Grant [2021]

Question 18

Joint Enterprise - Chan Wing Siu - OLD

Answer 18

> Chan Wing-siu v The Queen [1985] AC 168:
-OVERRULED BY JOGEE.
-Lays down the principle of joint enterprise liability: where D1 and D2 participate together in crime A, and in the course of doing so D2 commits crime B, D1 will be liable as accessory to crime B if he continued to participate and had contemplated the risk that D2 will commit crime B.
-3 Ds broke into the V’s home, with two Ds killing him and one slashing his wife with knives.
-Ds claim that they had the purpose of reclaiming a debt that V owed to one of them.
-Ds were convicted of murder and wounding with intent to do GBH.
-Ds appealed on the basis that Ds not only had to foresee a probable risk of the primary offence, not just a possible risk or that the risk was too remote.
-Privy Council dismissed appeal: foresight of a possible risk is sufficient to establish joint enterprise liability, furthermore the risk was not too remote.
Sir Robin Cooke:
-A person acting in concert with the primary offender may become a party to the crime by aiding, abetting, counselling, inciting or procuring it.
-The case must depend rather on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend, i.e., it is ‘foreseen as a possible incident of the common unlawful enterprise’.
-The test of MR here is subjective, it is what the individual accused in fact contemplated that matters

Question 19

Joint Enterprise - Jogee

Answer 19

> R v Jogee [2016] UKSC 8:
-Removed the doctrine of joint enterprise liability from English law: an accessory must have intended to assist in the commission of the principal offence, and not just have foreseen it.
-The appeal concerned two cases with a similar fact pattern: D was convicted for a murder that was committed by another on the basis that D had foreseen that murder would be committed as part of a criminal joint enterprise.
-The Privy Council was asked to review the doctrine of joint enterprise first laid down in Chan Wing Siu v The Queen.
-Privy Council allowed the appeals; the juries have been improperly directed as foresight should not be equated with intention to assist.
Lord Hughes and Toulson:
Rejecting Chan Wing Siu:
-In Chan Wing Siu the Privy Council judgment elided foresight with intention to assist, and was based on an incomplete and erroneous reading of previous case law. [65], [79].
-In the common law foresight is ordinarily no more than evidence from which intention is to be inferred, the Chan Wing-Siu principle extends liability for murder to a secondary party to a lower standard of culpability of foresight that the principal may commit murder without any need for intention to assist him to do so. [83].
-“The rule brings the striking anomaly of requiring a lower mental threshold for guilt in the case of the accessory than in the case of the principal.” [84].
-“The error was to equate foresight with intent to assist, as a matter of law; the correct approach is to treat it as evidence of intent.” [87].
Restatement of principles:
-Requirements for accessorial liability:
1. D2 was in fact a participant, that is, whether he assisted or encouraged the commission of the crime. [89].
2. D2 must have an intention to assist or encourage that commission of the crime acting with whatever mental element the offence requires of D1. [90].
-Conditional intent
1. Where D1 and D2 have the common purpose to commit crime A, D2 can have conditional intention to assist D1 in crime B when the need arises and D2 will thus be liable for crime B e.g., bank robbers might hope not to use guns but intend to do so if met with resistance. [92].
2. Foresight by D2 that in the course of committing crime A, D1 might well commit crime B may in appropriate case justify drawing the conclusion that D2 had the necessary conditional intent that crime B should be committed, if the occasion arose. [94].
-Knowledge of weapon:
1. D2’s intention to assist in a crime of violence is not determined only by whether he knows what kind of weapon D1 has in his possession.
2. Knowledge or ignorance that weapons generally, or a particular weapon, is carried by D1 will be evidence going to what the intention of D2 was, but it evidence and no more. [98].
Has the case really made a difference if it is still open to the jury to infer intention from foresight?
-Two Court of Appeal cases, R v Anwar [2016] EWCA Crim 551 and R v Johnson (Lewis) [2016] EWCA Crim 1613 suggest that the answer is no.

Question 20

Joint Enterprise - Anwar

Answer 20

> R v Anwar [2016] EWCA Crim 551:
-Jogee does not make a difference in the evidence required to prove MR and the outcomes of cases are likely similar to before Jogee.
-V entered van to buy cannabis and had a shotgun pointed at him by a passenger while the driver pulled out a knife at him.
-A Mercedes van came by with more men.
-V escaped from the van to his car, the man with the shotgun fired two shots at him.
-A total of 6 Ds were charged with illegal possession of a firearm and attempted murder as part of a joint criminal enterprise.
-The judge ruled that there was no case to answer, citing Jogee, he held that there was no evidence of any particular D being aware that the shotgun was loaded and intending it to be used if necessary, to kill.
-The Crown submitted on appeal that the evidence supported a safe inference that anyone who agreed to and participated in the robbery must have known that a loaded gun was being carried and intended that it be used with intent to kill should the need arise.
-CA allowed the appeal; Ds were convicted of illegal possession and attempted murder.
-It can be safely inferred that each of the Ds knew that the gun was loaded and had an intention that the shotgun be used to kill should the need arise based on the prior planning that all Ds were involved in.
Sir Brian Leveson:
-‘We find it difficult to foresee circumstances in which there might have been a case to answer under the law before R v Jogee but, because of the way in which the law is now articulated, there no longer is.” [20].
-Citing Jogee at [94] (Lord Hughes and Lord Toulson pointed out conditional intent that a crime is to be committed by the principal offender if the occasion arose can be inferred from evidence of foresight), “the same facts which would previously have been used to support the inference of mens rea before the decision in R v Jogee will equally be used now.” [22].

Question 21

Joint Enterprise - Johnson (Lewis)

Answer 21

> R v Johnson (Lewis) [2016] EWCA Crim 1613:
-Jogee is unlikely to affect the actual outcomes of joint enterprise cases despite a difference in jury direction.
-In 6 cases, Ds had been convicted of either murder or wounding with intent to do GBH prior to Jogee.
-After Jogee, the Ds appealed alleging misdirection by judges in their cases.
-5 cases appealed for an extension of time to give notice for applications to appeal within the Criminal Appeal Act 1968.
-The 3rd case was appealed within the time limit to give notice to appeal.
CA:
1. Dismissed appeal of the 3rd case:
-Although the judge in the 3rd case had misdirected the jury as to joint enterprise, in truth the case had been proved against D as a principal or as an accessory on normal accessory principles.
2. Other 5 cases: extension to appeal denied:
-Court would not grant extension just based on misdirection in trial.
-There must be substantial injustice, court would have to determine whether the change in law would in fact make a difference, whether the D was guilty of other less serious conduct.
-The verdicts would have likely been no different after the change in law.
-In each of the cases it was possible to infer the necessary (conditional) intention that the primary offence be committed, particularly since under Jogee, knowledge of the kind of weapon used by the primary offender is not necessary.

Question 22

Joint Enterprise - Grant

Answer 22

> R v Grant (Tony Lee) [2021] EWCA Crim. 1243:

• Concerned the question of whether the trial judge erred in refusing to give the jury a direction on a potential overwhelming supervening act where the principal’s act of using his car to run over and kill the V departed from the agreed plan between the principal and Grant to attack the victim and cause GBH.
• Having gone in a vehicle to find the victim, and with Grant in the front passenger seat – the plan being to set upon the victim with weapons – the principal drove the car into the victim, killing him instantly.
• It was argued at trial that the principal’s action of driving the car into the victim and killing him was such a departure from the agreed plan, which was to inflict grievous bodily harm upon the victim using weapons carried in the car, that it ought to constitute an overwhelming supervening act therefore leaving it open to the jury to find Grant guilty of manslaughter rather than murder.
• The judge was unimpressed with this argument and refused to leave the question to the jury, with Grant appealing this decision.
• CA dismissed appeal, holding inter alia, that the core question whether Grant’s conduct was “so distanced in time, place or circumstances from the conduct of the perpetrator that it would not be realistic to regard his or her offence as encouraged or assisted by it” (R v Jogee [2016] UKSC 8; [2017] AC 387).
• In this case, that high bar had not been met.

Question 23

What happens when the principal’s MR goes beyond what the secondary anticipated?

Answer 23

> R v Gilmour [2000] 2 Cr App R 407:
-If a principal has an intention beyond that contemplated by the accessory, the accessory is liable for the lesser offence appropriate to the mens rea he contemplated the principal to have.
-D acted as the getaway driver for members of the Ulster Volunteer Force who threw a petrol bomb into a house, thereby killing 3 children and injuring 3 adults.
-D was convicted of murder and causing GBH as an accessory.
-D appealed on the basis that he was unaware that the petrol bombs were intended to kill or cause GBH to victims.
-CA allowed appeal; the conviction for murder was substituted for manslaughter.
-D had not appreciated that the principals intended to inflict GBH.
Lord Carswell CJ:
-Where the AR of the principal departs or goes beyond what the accessory had foreseen, the accessory is not guilty of the offence committed by the principal.
-But where the AR of the principal is the same as what the accessory had foreseen but the principal’s MR departs from what the accessory had foreseen, the accessory is not liable beyond what he had foreseen the principal to have intended.

Question 24

Secondary Liability and the Derivative Principle - cases

Answer 24

1. R v Bourne (1952)
2. R v Howe [1987]
3. R v Millward (1994)
4. R v Thornton and Mitchell [1940]
5. R v Cogan and Leak [1976]

Question 25

Secondary Liability and the Derivative Principle - Bourne

Answer 25

> R v Bourne (1952) 36 Cr App R 125:

• An accessory can be liable for the full offence even when the principal has the defence of duress.
• D sexually excited his dog and forced his wife to engage in bestiality with it.
• D was charged with aiding, abetting, counselling and procuring buggery even though his wife could not have been convicted as she acted under the coercion of D.
• CA held that D was rightly convicted as an accessory to buggery.
• If the wife had been charged herself, she would not be convicted as she would have been excused from punishment due to duress.
• But nonetheless the act of buggery has been committed.

Question 26

Secondary Liability and the Derivative Principle - Howe

Answer 26

> R v Howe [1987] AC 417, [1987] Crim. L.R. 480:
-Duress is no defence to murder.
-An accessory can be guilty of procuring or inciting murder even where the principal has only committed manslaughter.
-Joined appeals for two murder cases:
-The two defendants alleged that they committed murder as they feared M would kill them if they did not.
-D1, who committed murder alleged that he feared that D2 will kill him if he did not.
-In both cases the jury was directed that duress was no defence to murder.
-In the second case the jury was further directed that if they found D1 was only guilty of manslaughter, D2 could not be guilty of murder.
-HoL dismissed both appeals; duress is no defence for murder.
-In relation to the second case, the judge erred in his direction – the jury could find that D2 procured or incited murder even though D1 was only guilty of manslaughter as he lacked intention.
Lord Griffiths on why duress is no defence:
-“It is based upon the special sanctity that the law attaches to human life and which denies to a man the right to take an innocent life even at the price of his own or another’s life.”
Lord Hailsham:
-“Duress is only that species of the genus of necessity which is caused by wrongful threat.”
Commentary:
-This judgment in effect requires an accused under duress to sacrifice himself for the victim.

Question 27

Secondary Liability and the Derivative Principle - Millward

Answer 27

> R v Millward [1994] Crim. L.R. 527:
-An accessory can be guilty of an offence by procuring the AR of that offence without the principal having MR.
-D1 directed his employee, D2 to use a tractor to tow a trailer on the main road.
-The tractor’s hitch was poorly maintained, the trailer detached and killed a passenger in a car.
-D2 was acquitted but D1 was convicted as an accessory to causing death by reckless driving.
-CA dismissed appeal; D1 is properly convicted of procuring the offence even though D2 was acquitted.
Scott Baker J:
-Citing Blackstone’s Commentaries, an accessory can be liable provided that there is the AR of the principal offence even if the principal offender is entitled to be acquitted because of some defence personal to him, but it may well be that this principle is limited to procuring.
-Procuring does not require a joint intention between accessory and principal. The procurer may, therefore, be convicted where the principal lacks the necessary MR.
-The ratio of Thornton and Mitchell was that the driver did not commit the AR of careless driving as he relied on the conductor’s signals.

Question 28

Secondary Liability and the Derivative Principle - Thornton & Mitchell

Answer 28

> Thornton and Mitchell [1940] 1 All E.R. 339:

• A bus conductor (D1) negligently signalled for a bus driver (D2) to reverse, knocking down two pedestrians and killing one.
• D2 was acquitted but D1 was convicted for procuring reckless driving causing death.
• Appeal allowed; D1 was acquitted.
• Where the principal did not commit the actus reus required of the offence the accessory cannot be guilty.

Question 29

Secondary Liability and the Derivative Principle - Cogan & Leak

Answer 29

> R v Cogan and Leak [1976] QB 217:
-An accessory can be liable for procuring the AR of an offence even though the principal lacked the MR.
-Leak (D1) forced his wife (V) to have sex with his friend, Cogan (D2).
-D2 was acquitted on the basis that he genuinely believed V to have consented.
-D1 was convicted of aiding and abetting rape and appealed for acquittal.
-CA dismissed appeal.
Lawton LJ:
-The AR of rape, to have sexual intercourse without V’s consent, was procured by D1.
-D1 also had the appropriate MR that D2 should have sexual intercourse with V without her consent.
-It is irrelevant that D2 did not have the MR for rape himself.
-If D2 was an innocent agent, D1 could be indicted without question as a principal since the old defence against marital rape no longer applies.
-To allow D1 to escape from conviction “would be an affront to justice and to the common sense of ordinary folk.”
-In Millard it was held that this case was one of procuring and not aiding and abetting.
-In Blackstone’s Criminal Practice, the reasoning that a person procuring an offence is acting through an agent is flawed as there are situations where the person procuring the offence cannot be guilty as the principal, such as if it is a woman procuring rape.

Question 30

Limits to Secondary Liability - Withdrawal of Accessories - cases

Answer 30

1. R v Rook [1993]
2. R v Becerra and Cooper (1976)
3. R v O’Flaherty [2004]

Question 31

Limits to Secondary Liability - Withdrawal of Accessories - Rook

Answer 31

> R v Rook [1993] 2 All ER 955:
-For an accused to successfully withdraw from a criminal enterprise that he had participated in, the minimum requirement is unequivocal communication of his withdrawal to other perpetrators.
-A man hired 2 men, including the appellant (D), to kill his wife.
-D hired another man to help.
-On the day itself D did not turn up, the wife was killed by the other 2 men.
-D was convicted for murder as part of a joint enterprise, he had assisted and encouraged the crime.
-Had D effectively withdrawn from the crime by not turning up?
-CA dismissed appeal; D hadn’t sufficiently withdrawn himself.
Lloyd LJ:
-D’s absence on the day the crime was committed could not amount to “unequivocal communication” of his withdrawal to the others, thus he did not do the “minimum” to effectively withdraw from the crime.
-It is unnecessary to decide in this case whether unequivocal communication of withdrawal is enough in itself to withdraw D (had he done so) or further steps must have been taken to neutralise his assistance.

Question 32

Limits to Secondary Liability - Withdrawal of Accessories - Becerra and Cooper

Answer 32

> R v Becerra and Cooper (1976) 62 App R 212:
-For an accused to successfully withdraw from a criminal enterprise that he had participated in, the minimum requirement is unequivocal communication of his withdrawal to other perpetrators.
-D1 provided D2 with a knife prior to a burglary.
-D1 departed from scene when he saw a man coming and shouted ‘come on, let’s go’ to D2.
-D2 later killed the victim with the knife.
-D1 was convicted as accessory to the murder.
-CA dismissed appeal; the words ‘come on, let’s go’ was insufficient as communication of withdrawal.
Roskill LJ:
-The Lord Justice cited Sloan JA in the Canadian case R v Whitehouse (1941) 1 W.W.R. 112:
1. Something more than a change of intention and physical change of place is needed to withdraw from a common enterprise.
2. What is required depends on the facts of each case, but there is one essential element: where practical and reasonable, ‘timely communication’ of the intention to abandon the common purpose to those who wish to continue.

Question 33

Limits to Secondary Liability - Withdrawal of Accessories - O’Flaherty

Answer 33

> R v O’Flaherty [2004] EWCA Crim 526:
-Withdrawal from a joint enterprise that is spontaneous rather than pre-planned can be possible by disengaging without communication to other perpetrators.
-3 Ds, F, R and T joined in an attack on V.
-Subsequently, there was a 2nd attack on V by others during which V sustained fatal injuries.
-F stood by the second attack but did not join in, R and T had left.
-All three were convicted murder.
-CA allowed appeal for R and T; they had not been part of the second attack.
-CA dismissed appeal for F; F’s presence during the 2nd attack was enough to show that he aided and abetted in the murder.
Mantell LJ:
-“Whether the defendant had done enough to withdraw from a joint enterprise is a question of fact and degree for the jury. Account will be taken inter alia of the nature of the assistance and encouragement already given and how imminent the infliction of the fatal injury or injuries is, as well as the nature of the action said to constitute withdrawal.” [60].
-It is not necessary for reasonable steps to be taken to prevent the crime for there to be effective withdrawal. [60].
-While communication of withdrawal is a necessary condition for disassociation from pre-planned violence it is not necessary when the violence is spontaneous. [62].

Question 34

Limits to Secondary Liability - victims as accessories - cases

Answer 34

1. R v Tyrell [1984]

2. R v Gnango [2011]

Question 35

Limits to Secondary Liability - victims as accessories - Tyrell

Answer 35

> R v Tyrrell [1894] 1 QB 710:
-Where a statutory offence is created with the intention of creating a group of victims, a victim cannot be an accessory to the offence (known as the ‘Victim Rule’).
-D was a girl who was charged and convicted for aiding, abetting, counselling and procuring a man to have sex with her while she was below 16, contrary to s5 Criminal Law Amendment Act 1885.
-Can a D be an accessory to a crime committed against herself?
-Crown Cases Reserved allowed appeal; conviction was quashed.
Lord Coleridge CJ:
-“The Criminal Law Amendment Act, 1885, was passed for the purpose of protecting women and girls against themselves.”
-“It is impossible to say that the Act, which is absolutely silent about aiding or abetting, or soliciting or inciting, can have intended that the girls for whose protection it was passed should be punishable under it for the offences committed upon themselves.”
Commentary:
-In Gnango it was held that this case does not state the general proposition that a V can never be an accessory to a crime where he or she is the intended V, it only applies where the offence is created by a statute intended to protect V.

Question 36

Limits to Secondary Liability - victims as accessories - Gnango

Answer 36

> In light of Jogee it is no longer necessary to be concerned with discussion of the basis for liability in this case, but you do need to know what is covered in paragraphs [16]-[19], [45]-[55] and [65].
R v Gnango [2011] UKSC 59:
-A victim can be an accessory to a crime in which he is intended victim.
-Under the doctrine of transferred malice, the intended victim of a primary offence can be an accessory where the offence was accidentally inflicted on a third party.
-Gnango (D) was engaged in a gunfight with X, X accidentally shot a passer-by.
-D was charged with aiding and abetting the murder of the passer-by.
Lord Philips and Lord Judge:
-The decision in Tyrrell is best interpreted as being based an implied term into the statutory offence as the reasoning was on the implied intention of Parliament. [48].
-There is no common law rule that prevents someone from being guilty for aiding and abetting a crime in which he is the intended victim. [52].
Commentary:
-A difficulty with this decision is that D never intended for himself to be shot by X, which was acknowledged at [55], but nonetheless the principle of transferred malice applied.

Question 37

Assisting Suicide - Legislation

Answer 37

> S. 2(1) Suicide Act 1961:
S. 2 - Criminal liability for complicity in another’s suicide:
(1) A person (“D”) commits an offence if—
(a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and
(b) D’s act was intended to encourage or assist suicide or an attempt at suicide.
(1A) The person referred to in subsection (1)(a) need not be a specific person (or class of persons) known to, or identified by, D.
(1B) D may commit an offence under this section whether or not a suicide, or an attempt at suicide, occurs.
(1C) An offence under this section is triable on indictment and a person convicted of such an offence is liable to imprisonment for a term not exceeding 14 years.