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Secondary Liability

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Title: Secondary Liability


1
Secondary Liability
  • In this lecture, we will consider the liability
    of secondary parties and the principle of joint
    enterprise.

2
  • A tells P to rape V.
  • B keeps watch during the rape to warn P if anyone
    approaches.
  • C holds V down whilst P rapes V.
  • P is the actual perpetrator of the offence but A,
    B and C may also be liable.

3
Identifying the various parties to a crime
  • The principal offender
  • A principal (P) can act through an innocent agent
    i.e. someone who commits the actus reus at the
    request of P but who lacks the mens rea for the
    offence which is possessed by P or lacks the
    capacity to commit the offence itself if e.g. he
    is under 10 years of age.

4
Secondary parties (Accessories)
  • Aider provides assistance/support to P to commit
    the offence. E.g. he supplies the weapons / tools
    to commit the crime / drives P to the scene of
    the crime.
  • Abettor provides encouragement or instigates or
    incites P to commit an offence at the time it is
    committed.

5
  • Counsellor - conspires to commit the offence /
    advises on its commission / encourages its
    commission by P before the offence is committed.
  • Procurer - produces by endeavour i.e. causes the
    offence to be committed e.g. by threats /
    persuasion.
  • Thus, e.g. a person who spikes someones drink
    before they drive so that the driver is
    unknowingly over the limit is a procurer as is
    someone who tells P to commit an offence.

6
Liability of secondary parties
  • S.8 Accessories and Abettors Act 1861 (as amended
    provides
  • "Whosoever shall aid, abet, counsel or procure
    the commission of an indictable offence is liable
    to be tried, indicted and punished as a principal
    offender."

7
  • Secondary liability can arise where the actus
    reus of the principal offence has been brought
    about (if no AR, D could still be liable for e.g.
    incitement / a conspiracy) even though P lacked
    mens rea or is not liable for some other reason,
    see e.g. he is exempt from prosecution or has
    available some defence which is not available to
    the secondary party (and therefore, no offence
    was committed by him). See Cogan Leek (1976).

8
  • The actus reus of secondary liability is the
    actual giving of advice, encouragement,
    assistance etc, so that, e.g. mere presence at
    the scene is not in itself sufficient (even if
    accompanied by knowledge that the offence is
    taking place), see e.g. Clarkson (1971).

9
  • Usually the mens rea is expressed in terms of
  • The intention to assist, encourage, facilitate
    etc the offence and
  • Knowledge of the essential matters which
    constitute the offence i.e. the circumstances or
    consequences required for the actus reus and
    knowledge that the principal acts/may act with
    the requisite mens rea for the principal offence.

10
  • It is sufficient if the secondary party intends
    to do an act which he knows will facilitate the
    commission of an offence by the principal, even
    if he does not care whether the offence is
    committed or not or actually hopes it will not
    motive is irrelevant.
  • See NCB v Gamble (1959)

11
  • What is the extent of knowledge required of a
    secondary party?
  • See Ferguson v Weaving (1951)

12
  • D is liable if he knew the particular type of
    offence to be committed by P. It is not necessary
    to prove he knew the precise circumstances e.g.
    time and place of commission, see Bainbridge
    (1960).

13
  • Also see DPP for Northern Ireland v Maxwell
    (1978) which extended Bainbridge to cover not
    only knowledge of the type of crime but also the
    situation where the offence committed was within
    the range of a limited number of crimes which the
    secondary party contemplated would be committed.

14
Example
  • D provides assistance to P, knowing that P is
    going to commit an offence, but D does not know
    whether P intends to commit offence A, B or C. D
    is liable if P commits any one of the offences
    A, B or C.

15
Joint enterprise
  • A joint enterprise is where two or more parties
    embark upon the commission of a criminal offence
    with a common design.
  • The rule of joint enterprise is that all the
    parties will be equally liable for the
    consequences which follow the implementation of
    the agreement, and this may include any
    unforeseen consequences.

16
  • Even if one of the parties is not present when
    the offence is actually committed the principles
    relating to joint enterprise still apply to him
    (Rook (1993)).

17
How have the courts defined a joint enterprise?
  • In Peters and Parfitt (1995), it was defined as
    being
  •  A shared common intentioneach has the same
    intention as the other and each knows that the
    other intends the same thing.

18
  • Liability is imposed on each party to the joint
    enterprise for any crimes committed by their
    accomplices which fall within the scope of the
    joint enterprise.
  • When might an accomplice exceed the scope of the
    joint enterprise?
  • Necessary to determine the scope of the joint
    enterprise.

19
  • Scope of the joint enterprise - what were the
    parties expressly or implicitly agreeing to? If
    a consequence was expressly or impliedly agreed
    to, it is within the scope of the joint
    enterprise (Anderson Morris (1966)).
  • Thus, accomplice D, can be liable for an
    unintended consequence, e.g. death occurring in
    the course of using force in a robbery if the
    scope of the enterprise to which D was a party
    included the use of force upon V.

20
What if there was no express or tacit agreement
that offence Y be carried out?
  • D would not be liable unless he foresaw
    (subjective recklessness required) that in the
    course of the enterprise to commit offence Z, the
    other party might carry out, with the requisite
    mens rea, an act constituting another crime, Y
    (Powell English (1997) HL).

21
  • The appeals in Powell and English were heard
    together by the House of Lords.
  • Facts of Powell

22
Is the principle in Powell English fair?
  • In the context of murder, D, who took part in the
    joint enterprise but did not actually do the
    killing, would be liable for murder if he foresaw
    that P might kill with the intention to kill/do
    gbh whereas P would only be liable if he intended
    to kill or cause gbh. D would still liable even
    if he had not agreed either expressly or tacitly
    to the offence being committed and even if he had
    stated expressly that it should not occur.

23
Would Powell have been decided differently if D1
and D2 had not known that D3 was actually
carrying a weapon?
  • Yes, their Lordships in Powell English stated
    that in such circumstances, D1 and D2 would not
    be accomplices to it as, even if they foresaw D3
    might kill with intent to kill/do gbh D3, by
    using a weapon, would have deliberately exceeded
    the scope of the joint enterprise and would be
    acting alone.

24
  • If D3 agrees not to use a weapon but then pulls
    out a weapon on V and D1 and D2 continue to
    participate in the attack, they could be said to
    have tacitly agreed to a change in the agreed
    plan and therefore still be liable (Uddin
    (1998)).

25
  • HL held in PowellEnglish that even if D, a party
    to a joint enterprise, intended or foresaw that P
    would or might act with the mens rea for the
    offence actually committed, D could not be liable
    as a party to that offence if Ps act was
    fundamentally different from the acts D had
    intended or foreseen because the weapon used was
    more dangerous than that D intended or foresaw
    might be used.

26
  • Cf, if the weapon used by the principal, although
    different from what was intended or foreseen, had
    been as dangerous as that which D foresaw might
    be used, D would still be liable.
  • E.g. if D foresaw that the principal might use a
    gun to kill and P used a knife, D would still be
    liable for murder.

27
  • It is for the jury to decide whether the weapon
    used is more dangerous than the one envisaged so
    as to remove the killing from the scope of the
    joint enterprise (English).
  • Also see
  • Uddin
  • Greatrex (1999)

28
  • Where Ps actions which cause death take him
    outside the scope of the joint enterprise, D is
    not liable for murder or manslaughter (Mitchell).
  • The position where Ps mens rea takes him outside
    was considered in Gilmour (2000).

29
  • Gilmour - court distinguished between situation
    (a) where Ps actions which cause death take him
    outside the scope of the joint enterprise and (b)
    where his actions are within the scope of the
    joint enterprise but he acts with a greater mens
    rea than envisaged by D.
  • In (b) D could be liable for constructive
    manslaughter as Ps actions would not be outside
    the scope of the joint enterprise.

30
  • Decision conflicts with others of CA e.g.
    Anderson and Morris which stated that D ceases to
    be a party to the actions of P in this situation
    P has acted outside the scope of the common
    purpose - and D is not liable for manslaughter.
    The issue is, therefore, unclear.

31
Accomplices and defences available to the
perpetrator
  • Where P performs the actus reus of murder with
    intent to kill/do gbh but has the partial defence
    of diminished responsibility available to him so
    as to reduce his liability to that for
    manslaughter, D, the accomplice, remains liable
    for murder (s.2(4) Homicide Act 1957).

32
  • No equivalent provision covering the situation in
    which P can rely upon provocation but D cannot.
    However, there is no reason why D should not be
    liable for murder.

33
Can an accomplice be liable for a graver offence
than the perpetrator?
  • Yes, if the accomplice had the mens rea for a
    more serious offence than that for which P had
    mens rea and the actus reus for both offences is
    the same.
  • E.g. P might be liable for s.20 if he wounds with
    intent to do some physical harm and the
    accomplice for s.18 if he foresees that P might
    wound with intent to do gbh.

34
Withdrawal of participation by an accomplice
  • Mere repentance without any action on Ds part
    will leave D liable for the offences committed by
    his accomplice (Beccera (1975)).
  • If there is an unequivocal communication or
    countermanding of the prior participation so as
    to indicate to the other parties that assistance
    in the enterprise is being withdrawn before the
    stage of commission of the principal offence, D
    can escape liability for that offence (Rook).

35
  • Equivocal words of withdrawal are not sufficient,
    see Baker (1994).
  • Effective withdrawal is likely to be easier at
    the preparatory stage than withdrawal where the
    offence is in the course of being committed, see,
    e.g. Beccera.

36
Withdrawal from spontaneous violence
  • See Mitchell (1998)
  • In Robinson (2000), the court made clear that
    this was an exceptional case and that
    communication of withdrawal must be given even in
    cases of spontaneous violence except where it is
    not reasonable and practicable to do so, as in
    Mitchell where D had thrown down his weapon and
    moved away before the final and fatal blows were
    inflicted.

37
  • Even if D successfully withdraws, he will remain
    liable for any offence he might already have
    committed, e.g. for conspiracy if he had already
    agreed to its commission with another/others.
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