Week 5- Complicity

Question 1

How are principals and accessories treated procedurally and why?

Answer 1

• As under s8 of the accessories and abettors act 1861, anyone who aids, abets, procures or counsels an offence will be tried as a principal despite not committing the AR of the crime which the actual principal is guilty of
• Often there is an evidential problem of establishing who committed the AR of a crime, for example in a joint enterprise of two people attempting to stab V, they might both have knives but perhaps only one inflicts the fatal blow.

Question 2

Whats the difference in AR and MR between principal and accessory?

Answer 2

Principal-
AR= AR of the crime committed
MR= dependant on the crime

Accessory-

• AR of aiding, abetting, counselling or procuring the offence committed by P.
• AR does not in fact have to have actually positively impacted on P in committing the crime (unless it is procuring)
• MR=intention for P to have the mens Rea to commit the crime ie you intend that he will commit the crime even if you do not desire it, or even if you aren’t sure if it actually will assist the principal
• knowledge of the facts so as to make the circumstances criminal (to exclude innocent agents) eg the age of a victim, the owner of the property.

Question 3

What was the fundamental difference rule and how has it changed post-Jogee?

Answer 3

D could escape liability for murder if P used a different weapon to that anticipated by P.

The rule was abolished post-Jogee, and replaced with the ‘overwhelming intervening events’ in that the actions of P are so overwhelming that no one in the shoes of D could have contemplated it to happen, which might reduce or remove Ds liability.

Question 4

Calhaem 1985 QB 808 facts and principle

AR of accessories

Answer 4

Facts-The defendant was convicted of murder under s.8 of the Accessories and Abettors Act 1861. She had counselled Z to murder the victim through payment. Z decided not to carry out the murder, going to the house with an unloaded shotgun to give the impression of a murder; but had gone berserk and eventually killed the victim anyway. The defendant appealed her conviction.

Principle–“counselling” did not require any CAUSAL CONNECTION between the counselling and the principal offence (i.e. the actual murder), nor substantial cause. An offence under s.8 was established by the presence of counselling and the principal offence was committed by the person counselled within the scope of the authorisation or instruction (i.e. not by accident).”
-It is enough that D counsels P before D is involved in the crime, and then P decides to act on a solely intrinsic motive instead.

Question 5

A-Gs reference (No1 of 1975) 1 QB 11

AR of principals

Answer 5

Facts-The defendant 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,

Principle -D had actually procured P to commit the offence
-The words aid, abet, counsel and procure, as in s8 of the 1861 act, are to be given their normal meanings if possible

Question 6

Coney 1882 8 QBD 534 facts and principle

AR of accessory

Answer 6

Facts- -Two defendants presence at an illegal fist fight, who were neither involved in the management of the fight or encouragement of the fight (through saying or doing something) were charged with abetting the illegal fight

Principle- Mere presence at a crime scene cannot be equated with being an accessory, merely evidence that the jury may wish to use to determine whether their presence of actions constituted encouraging or assisting.

Question 7

JF Alford transport ltd 19972 Cr AppR 326 facts and principle
AR of Accessory.

Answer 7

Facts- -The lorry company was ignorant of the false entry on the tachograph record (s. 99(5) of the Transport Act 1968). The defendants were in turn convicted of aiding and abbeting the drivers’ offences. They appealed.

Principle-Company ignorant of drivers falsification of records not aiding and abetting, as there was no AR of assisting or encouraging. A mere acquiescence in an act was not aiding and abetting unless some right of control had been taken ie they had somehow contributed to the falsifying of the acts.

Question 8

What does Smith and Hogan say that aiding, abetting, procuring and counselling consists of in terms of causation, consensus and assistance?

Answer 8

• Aiding requires assistance but neither causation nor consensus
• Abetting and counselling requires consensus but not causation
• Procuring requires causation but no consensus.

Question 9

What does it mean to aid and what does it mean to procure?

Answer 9

Aid- to give help, support or assistance. There need not be direct causation between Ds aid and Ps commission of the crime, There may even be no pre-conception or aid being offered, a passer-by may aid someone in a get away providing he has the MR of intentionally helping the crime to be committed.

Procure-‘produce by endeavour’. You cannot procure an offence unless there is causal link between what you do and the commission of the offence. However, procure is not synonymous with cause.
-Gnango held that D could be liable as an accessory to a crime on himself where he encouraged P in the commission of that crime.
ie where two men shoot at each other with the common purpose of inflicting GBH.

Question 10

What does it mean to abet and counsel?

Answer 10

Abetting= ‘incite, instigate or encourage’ but usually defined in terms of encouragement at the time of the offence

• Counsel means ‘advise, solicit or encourage’; usually to encourage before the event. No causal implication between abetting and counselling, and P carrying out the AR, however no one can be guilty of abetting or counselling without P being committed of the crime. Thought crimes are not criminalised under the law.
• Even if P decides to ignore the advice of D, D has still acted with the MR of intended P commit the AR, and therefore it would be hard to prove that P did not act because of D but because of an intrinsic motive. NO CAUSAL CONNECTION REQUIRED BETWEEN ABETTING/COUNSELLING, AND THE COMMISSION OF THE CRIME (CALHAEM)
• There must be consensus between P and D. If D wanted P to commit a crime and P goes on to commit the crime, unaware of Ds existence, D cannot be liable.

Question 11

What could be the impact of omissions on liability as an accessory?

Answer 11

The impact of Omission: Omissions usually aren’t enough to render someone guilty for an offence, unless there is a duty owed which someone omits to carry out, in order to help a crime be committed. Another example could be a pub owner who has a power or right to stop someone carrying out an offence ie drinking after hours, but stands by and allows it. Therefore duty or control are two categories where an offence of D is committed via omission.

Question 12

What case is authoritative for mere presence at the scene of the crime and what is the principle?

Answer 12

Coney- had they paid to be at the illegal fist fight, they could properly be said to be assisting (monetarily) or otherwise encouraging the fight to take place.

Presence at the crime constituting liability: Mere presence in most cases will NOT constitute liability as an accessory, although on the facts, someone’s presence may encourage D to carry out a crime in their presence.
-Both an assistance or encouragement in fact is necessary, as well as an intention to do the said actions. It matters not whether there was prior agreement for the commission of the crime. Intention to help but no actual assisting or encouragement in fact will not suffice.

Question 13

What are the MR requirements of the accessory as re-stated in Jogee??

Answer 13

• The Mens rea requirement as restated in Jogee is as follows
  1) The accessory must intend to assist or encourage the principals conduct, or in the case of procuring, to bring the offence about.
• 2) If the crime requires a particular mens rea, the accessory must intend to assist or encourage the principal to act with that mens rea. Innocent agency and procuring an actus reus would appear to be exceptions to the rule.
  3) The accessory must have knowledge of any existing facts or circumstances necessary for the principals conduct to be criminal.

Question 14

What role can oblique intention play in accessorial liability??
Can there be in a sense recklessness towards the impact of assisting or encouraging on Ps AR?

Answer 14

• Oblique intention can also suffice, whereby D knows his action is virtually certain to assist or encourage, even if it is not his desire. It might not be a purposive intention ie-If D hands back a weapon to P, where it is his legal obligation to do so and he is aware that P will use it to kill, he has abetted crime, but if he learns afterwards, he is an innocent agent.
• Also, it is sufficient that Ds conduct might assist P, BUT D must intend that it will help.

Question 15

What is the position on conditional intent and what case confirmed it?

Answer 15

• SC confirmed in Jogee that D must intent to assist or encourage P to commit the offence, and to act with whatever mental element is required of P.
• SC confirmed that Ds intent can be conditional ie he can intend for another crime be committed conditional on a circumstance, therefore rendering him guilty if that further crime is committed; it is imperative to convey to juries that conditional intent is not a less stringent form of intention and foresight is merely evidence from which the requisite intention can be inferred.

Question 16

What does knowledge mean as per Jogee, in terms of the knowledge which D must have with regards to Ps crime?

Answer 16

1) Knowledge/foresight-The courts have generally takes the view that D realises a possibility of the essential elements of Ps offence. D foreseeing or turning a blind eye towards the criminal facts of Ps actions can account for this aspect of the MR. A specific offence need not be intended by D, it is enough that he assisted or encouraged P to commit any number of offences in some way.
2) The Supreme court musts have intended to mean that what matters is whether D knows that, when P acts on D’s assistance or encouragement, the facts making Ps act criminal will exist at that later time.
- as mentioned before, in an offence of strict liability where the P is guilty, D will only be guilty if he has the mens rea of the essential elements of Ps wrongdoing.

Question 17

What does Jogee say about Ds assistance or encouragement regarding a range of crimes, specifically comparing the nature of different crimes and the acts which could be used to assist or encourage them?

Answer 17

• In Jogee it was held that some aiding or encouraging can constitute liability for a range of offences, such as terrorism which may take a variety of forms, whereas some offences cannot be aided or encouraged in a way other than to that of their nature. It must be in the range of possible offecnes that D intentionally assisted or encouraged D to commit. The principle of knowledge of the facts rendering It dangerous still apply.
• If D assists or encourages P to commit a crime of a certain type against a specific person, or in any respect a specific thing, D is NOT LIABLE if p intentionally commits an offence of the same type against some other person or with respect to some other thing.

Question 18

What is the position when D and P do have a common purpose and when they do not
?

Answer 18

• When D and P have a common purpose, it is enough that he aids or encourages P to commit the AR of the crime ; he must be aware of the crime that is taking place when he aids or encourages.
• When D and P do not have a common purpose but assists/ encourages being indifferent whether P commits the crime, D is not guilty if he does not know the type of crime which is going to be committed; as shown in Bainbury, there must be some general knowledge of the type of crime that will be committed by the principal, but not the specific time, place and plan for the crime. This is an essential piece of evidence to commit D as an accessory.

Question 19

NCB v Gamble1959 1 QB11
(national coal board) facts and principle
(MR of D)

Answer 19

Facts-M, who worked for a haulier firm, had his lorry filled up at a National Coal Board (NCB) colliery. He then drove to a weighbridge where the operator told him that his load was overweight. M, nevertheless, accepted the risk of taking the overload. He was later stopped by the police. Charge appealed

Principle- The Court found that aiding and abetting was proved if there was a positive act of voluntary assistance and knowledge of the circumstances constituting the offence. Motive is irrelevant in this case.
The sale was thus completed by the weighbridge operator despite having had knowledge that an offence was being committed. Thus, the NCB’s actions constituted aiding and abetting.
-In addition to this. the weighbridge operator was under a legal duty to omit to provide the paper which allowed the lorry to drive onto public roads.

Question 20

Bainbridge 1960 1 QB129 facts and significance?

MR of D

Answer 20

Facts- D bought oxygen cutting equipment, and P used it to break into a bank. D was convicted before the fact for assisting the crime, on the grounds that he knew that its use was for a break in. He appealed

Principle–It is sufficient to prove that the defendant knew of Ps general intention to commit the crime, but no further knowledge of the time and place of the crime. The conviction was upheld based on the fact that D knew the general type of crime that would be committed with the oxygen-cutting equipment.

Question 21

Maxwell v DPP for N.Ireland 1978 1 WLR 1350

MR of D

Answer 21

Facts- D drove P to the pub, knowing that P was going to try and commit a range of offences, including planting a bomb, shooting people or committing robbery.

Principle- -Following Bainbridge, house of Lords held that there was no specific crime that D needed to be aware of when aiding or encouraging P.
-The principle is that if D Aids or encourages P, knowing that P will commit X, y or Z or a combination of the three, this enough to constitute liability as a secondary party

Question 22

Gillick v West Norfolk 1986] A.C. 112

MR of D

Answer 22

Facts- Gillick sought a declaration that a doctor giving contraceptive advice to a girl under 16 without her parents knowledge was unlawful.

Principle- The doctor would not be convicted as aiding or abetting the commission of a sexual offences act, if his intentions are in the best interests of the girl, and also the girl under 16 does not commit an offence when having sex with someone over the age of 16.
The doctor will, in my opinion, be justified in proceeding without the parents’ consent or even knowledge provided he is satisfied on the following matters:
1.that the girl (although under 16 years of age) will understand his advice;
2that h. e cannot persuade her to inform her parents or to allow him to inform the parents that she isseeking contraceptive advice;
3. that she is very likely to begin or to continue having sexual intercourse with or without contraceptivetreatment;
4. that unless she receives contraceptive advice or treatment her physical or mental health or both arelikely to suffer;
5. that her best interests require him to give the contraceptive advice, treatment or both without the parental consent.

Question 23

Blakely and Sutton V DPP1991 RTR 405

MR of D

Answer 23

Facts- B was having an affair with T. At a pub, T told B that he intended to go home to his wife. B discussed this with S, who suggested that if they added alcohol to T’s tonic water, T would not drink and drive. B & S intended to tell him before he left to drive home so that he would not go home. Unfortunately, T (the principal) left before they could tell him and was subsequently found to be over the limit when breathalysed.

Significance- B & S were subsequently convicted of procuring that offence after the magistrates decided that they had been reckless (within the meaning of Caldwell).
-The Court of Appeal quashed their convictions and held that objective recklessness was not enough for liability. The court expressed the opinion that only intention should suffice for the accomplice, in that they must intend that P commit the crime and not simply foresee that they might commit a crime as a result of Ds actions.

Question 24

Following Blakely and Sutton, what is the position with regards to recklessness warranting liability for assisting or encouraging a crime by P?

Answer 24

The Court of Appeal quashed their convictions and held that objective recklessness was not enough for liability. The court expressed the opinion that only intention as to P committing the crime should suffice.

Question 25

what was joint enterprise/ parasitic accessorial liability?

Answer 25

• A sort of constructive crime, in which D as an accessory was liable for the crime committed by P which he did not intend P committing eg if D assists P in robbing a bank by driving him to the bank, but P robs the bank and murders V with a gun that D did not assist or encourage nor intend to be used against anyone (he may have foreseen it might happen).
• D was therefore liable as an accessory to murder (not a principal as he did not carry out the AR) if he intentionally did the assisting or encouraging of the robbery, if he foresaw that P might perform the conduct of murder in circumstanced rendering it an offence (reckless towards it), D foresaw that P might do so with the MR of murder and the manner of P committing the murder was not fundamentally different from what D foresaw might occur.

Question 26

How did Jogee change the stance on parasitic accessorial liability?

Answer 26

-In Jogee, Parasitic accessorial liability was transformed so that D must intend that P performs the additional crime with the requisite mens Rea, and mere foresight that P might do so simply won’t suffice any more

Question 27

Powell and Daniels 1999 AC 1

Joint enterprise

Answer 27

Facts- P, D and another went to Vs house to pick up weed but P ended up shooting V. P and D were both convicted as principals for murder. D held that he was unaware that P had the gun until he used it to kill V. appeals dimissed.

Principle- “Where there is joint enterprise to commit a crime, to found a conviction of murder for a secondary party, it is enough to show that they contemplated that the primary party might kill with intent to do so or cause serious injury. Thus, P and D’s appeal was dismissed.”
-This clearly isn’t the case anymore post jog

Question 28

Jogee V the queen 2017 AC 387 facts and significance

Answer 28

Facts- This joint case involved two separate appellants who had been convicted for murder on the basis of joint enterprise, after a co-defendant had actually killed the victim. In the case of Jogee, he had been vocally encouraging the principal while he murdered a police officer. In the case of Ruddock, liability was based on his participation in a botched robbery during which the principal murdered the victim (an act which the principal admitted)

Significance- The court held that in order to prove accessorial liability, it was not sufficient to only prove the necessary mental element, but also the element of conduct.

• This could be discharged by proving that the accessory either assisted or at least encouraged the principal in committing the offence.
• The mental element is discharged by proving that the accessory intended to so assist or encourage the principal. The mental element however is not discharged by mere foresight that the principal might commit an offence.
• Therefore, someone may provide the AR or assisting or encouraging the commission of the crime ie driving to the bank for the robbery (which assists all subsequent offences committed) , but may only foresee that in committing the AR they might help P commit a further crime.

Question 29

Anwar and others 2016 EWCA Crim 551

Answer 29

Facts- 6 men were involved in the robbery of the victim, in which they threatened him with a loaded shotgun and attempted to murder him as he escaped
-Their defence argued that they could not all be committed of attempted murder because there was no evidence that the 5 men who did not fire the shotgun intended an attempted murder to happen.

Principle-What had changed was the articulation of the mens rea and the requirement that to prove the crime of, for example, murder, it was not sufficient that the defendant foresaw that his co-defendant might intentionally cause grievous bodily harm or kill if the circumstances arose.
-What was required post-Jogee was that the defendant intended that his co-defendant cause grievous bodily harm or kill if the circumstances arose.

Question 30

What are the 3 situations where there might be no convicted principal but a convicted accessory?

Answer 30

3 Possible situations as a result:

1) P has committed the AR and MR but has a defence
2) P has committed the AR but has no MR
3) P has not committed the AR.

Question 31

Bourne 1952 36 Cr App r125

No convicted principle

Answer 31

Facts-D by duress (threats, violence or both) compelled his wife P to have sex with a dog. She had still committed the offence but was excused from punishment.

Principle- The wife was acquitted of buggery and whilst she had both AR and MR, she had a defence,, whereas D was charged for abetting her to commit buggery

Question 32

Cogan and leak 1976 QB 217

no convicted principle

Answer 32

Facts-D terrorised his wife, V, into submitting into sexual intercourse with P. P was convicted of rape and D was convicting as a secondary party, but P had to be acquitted as there were doubts over his mens rea, in that it couldn’t safely be said that he didn’t genuinely believe in Vs consent

Principle- D appealed on the basis that as the principal offender had not committed a crime, he could not be a secondary party to that crime.
-Courts held he had the necessary mens rea and had abetted the AR of the offence, which was effectively a substantive offence to procure the commission of the AR of any crime’ S and H.

Question 33

Thorton and Mitchell

No convicted principle

Answer 33

Facts-a bus conductor, negligently signalled to the driver of his bus, P, to reverse, killing two pedestrians who D could not see. P was acquitted of causing death by careless driving, but D was also acquitted. D had no AR as it could not be said that he had driven the bus, and P had no MR, so there was no crime committed by P, although a case for negligent manslaughter by D was certainly viable.

Principle-Therefore, if there was no AR by P, D could not be convicted of abetting that crime. (he could however sufficiently been found guilty of negligent manslaughter.)

Question 34

Richards 1974QB 776

No convicted principle

Answer 34

Facts- R hired B and S to beat up her husband, V. She gave a signal to them as V was leaving work, and they proceeded to attempt to hospitalise him for a month through the infliction of injuries.

• Vs injuries were not as severe as expected, requiring no hospitalisation.
• B and S were found guilty under s20 of OAPA for inflicting GBH recklessly whereas R was convicted as a principle for s18 of the same act (a felony rather than a misdemeanour). She appealed.

Principle–QB held that someone who was the accessory to an assault could not be an accessory to a more serious event which did not happen, even if they had the MR for that event
-The AR of the more serious event did not happen.

Question 35

How has the reasoning in Howe changed the principle in Richards?

Answer 35

Howe= “Up to the present time, the courts have been declining to allow an actual killer to plead the defence of duress while allowing it to a person charged with murder who was not the actual killer as is illustrated in the circumstances of these appeals.”

• They held that Richards was decided wrongly because R clearly had the mens rea of an offence under s18 of OAPA whereas
• “I consider that the reasoning of Lord Lane C.J. is entirely correct and I would affirm his view that where a person has been killed and that result is the result intended by another participant, the mere fact that the actual killer may be convicted only of the reduced charge of manslaughter for some reason special to himself does not, in my opinion in any way, result in a compulsory reduction for the other participant.”

Question 36

DPP v K and B

Answer 36

Facts-The DPP appealed by way of case stated against the acquittal of K and C, two girls aged 14 years and 11 years respectively, of charges of procuring the commission of the offence of rape upon W, aged 14, by an unknown person. It was alleged that K and C had falsely imprisoned, threatened and robbed W. A boy joined the girls, and K and C told W to remove her clothing and have sexual intercourse with the boy. Partial penetration occurred. The boy was never traced

Principle- -Doli Incapax, a defence for minors under the age of 10 who cannot commit a crime, was not put forward to the jury
-Just because the principal in the case could not have had the mens rea as a result of their age, doesn’t meant that the accessories who procured the AR of the principal was exempt from guilt, and just because it was two girls who could not have committed rape (no penile penetration), didn’t excuse them from being guilty as accessories to rape.

Question 37

What do s44-46 of the serious crime act 2007 convict people for?

Answer 37

Must remember that s44-46 of serious crime act allows for D to be prosecuted for any done acts capable of assisting or encouraging P, whether or not P commits the offence.
-Liability arises once D performs the acts capable of assisting or encouraging, no matter whether the acts do actually encourage or assist the commission of the crime; therefore, there is no withdrawal defence here.

Question 38

What constitutes an effective withdrawal from a crime and what effect will withdrawal have on all subsequent crimes?

Answer 38

• ‘voluntary, real and effective, as well as communicated in some form in good time’. P226 S and H. Must also include an unequivocal (leaves no doubt) communication to withdraw
• Ds ‘innocent’ state of mind at the time of the crime will not negate his guilty intention to assist or encourage. However, if it can be proved that D neutralised his assistance or encouragement then he will not be guilty, even if he did not intend to.
• All subsequent crimes will be withdrawn from, although any inchoate crimes incurred thus far will not be quashed from withdrawal unless it could be proved that D neutralised his assistance or encouragement.

Question 39

What is the current position as to victims who are party to crimes against them?

Answer 39

• Where the statute is designed for the protection of a group of individuals or class of persons, it may be understood by implication that a member of that group cannot be liable for aiding, abetting, counselling or procuring the crime, even if they committed the AR as such. (TYRELL)
• Most common example is the protection of woman under the age of 16; they cannot be guilty of assisting or encouraging a man to have intercourse with them, even if they consent to the intercourse. They are not liable as they are the people which the law seeks to protect.

Question 40

Beccera 1976 62 CR App R 212

Limits to liability

Answer 40

Facts- D handed P a knife so he could use it on anyone interfering with the burglary. D did not make a sufficient withdrawal when V appeared and he said ‘come on lets go’ and left via a window
-P used the knife on V and D was held to be an accessory to murder for his aid

Principle- -The defence of withdrawal can only be achieved through an unequivocal communication of withdrawal.
-If D does an act of aiding, abetting, procuring or counselling, he must take the steps necessary to neutralise his involvement, something often left to juries to decide.

Question 41

Rook 1993 1 WLR 1005

Limits to liability

Answer 41

Facts- “Rook was convicted as one of a gang of three men who met and agreed the details of a contract killing of the wife of a fourth man on the next day. Rook did not turn up the next day and the killing was done by his two fellows.”

Principle- The fact that the appellant had absented himself on the day the murder was carried out by the defendant who did the killing did not amount to an unequivocal communication of the appellant’s withdrawal from the scheme contemplated at the time he gave his assistance. The offence of counselling and procuring can be committed by the giving of assistance before the full offence.

Question 42

Tyrell 1894 1 QB 710

Limits to liability, victims as parties to crimes.

Answer 42

Facts- D, a girl aged between 13 and 16, abetted P to have intercourse with her. P was convicted under the relevant law at the time, but D was not convicted of aiding or abetting the crime

Principle-D was in the class of people which the law sought to protect, and therefore could not be a secondary party to that crime against herself.

Question 43

Why is procuring slightly different to aiding, abetting or counselling?

Answer 43

To be guilty of procuring you must ‘produce by endeavour’ and to produce by endeavour connotes that it is your intention and purpose to bring it about- there must be some causal connection between Ds procurement and Ps act.

Question 44

What does Jogee clarify about Ds intent with regards to Ps crime and how does procuring not fit with this/

Answer 44

• in aiding, abetting or counselling, D must intend to assist or encourage P, but does not have to intend that Ds assistance or encouragement will make P commit the crime.
• However, procuring connotes ‘producing by endeavour’ and therefore their intention is that they will help or encourage P commit the offence.

Question 45

What are the relevant statutes regarding complicity?

Answer 45

s8 of accessories and abettors act 1861
Criminal law act 1977
Serious crime act 2007 (assisting and encouraging before the crime is committed, part of inchoate offences)

Question 46

Can you be guilty of assisting or encouraging a conspiracy?

Answer 46

No- it cannot be said that D assists or encourages two other defendants to come to an intended agreement to commit a crime