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.