Participation
Principle offender is the person who committed the offence with the mens rea and actus reus.
Co-Principles are those who joined in with the actus reus and had the same mens rea.
An innocent agent may not be liable for the same offence as the principle offenders.
Joint criminal venture is where a group of people are convicted of the same offence.
'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 to be passed, shall be liable to be tried, indicted and punished as a principle offender.' Accessorise and Abettors Act 1861.
AG Ref No1 of 1975: words should be given their ordinary meaning: "Procure": if a person is found to have aided an offence then they are guilty of that offence.
Issues of complicity will arise when there is more than one offender.
Wider scope than those actually involved in the coduct and fault elements.
"This part of criminal law is a mess."
Personal responsibility: you must be responsible for your actions.
Gang violence can escalate and become more serious.
Courts twist the law to try and make sure that we get the bad guys - it is used as a deterrent.
Those involved may be convicted for their activities even if an actual criminal offence is not proven or the principle has defence in law.. an accessory need not be present the criminal culpability for involvement can be reflected in sentence you receive.
Where does the line draw between not assisting and encouraging people but not stopping something that you know is going to happen? Policy area, moral choices.
Often the person who commits the offence is not the big bad guy behind the offenders - accomplice is often more guilty than the actual offender.
The burden of proof is lowered: somebody might have been involved.
Changes to the law in child deaths - where the child dies and more than one adult is supposed to be looking after them - all adults are guilty - one of you killed them and the other encouraged, therefore we don't need to prove who did what.
Controversial - presumption of innocences - should not be convicted unless it has been proven beyond reasonable doubt.
Principle Offender - is one who has the relevant mens rea for the offence either:
A) commits or contributes to the actus reus of an offence by his own act or omissions
B) contributes to the actus reus of an offence by his own act or omission
C) is vicariously liable for the act of another
BUT: Kennedy 2005
Co-Principles - if together they satisfy the definition of the substantive offence and each of them committed the offence with the required fault OR if each of them by their own acts contributes to the causation of the actus reus of the offence if all thier acts together fulfil all the conduct elements and if each of them has the required mens rea (Macklin and Murphy 1938)
Innocent agent - the law protects those people who are used by others to commit crimes and can be seen as blameless (Michael 1840).
Vicarious Liability - imputes liability to the employer for the acts of his employee or agent (Harrow London v Shah 1999)
Accomplices - assisting and encouraging offenders or being a joint enterprise.
Secondary liability is derivative: there has to be an offence that is assisted and encourage the person that commits the offence does not need to be convicted. They are not guilty of anything until something happens and the offence is committed.
Aiding: aid may be given by supplying an instrument, keeping a look out, doing preparatory acts, and many other forms of assistance
given before or at the time of the offence.
Abetting: involves some encouragement of the principal to commit the offence usually accompanies or is implicit in an act of aiding.
Bainbridge 1960 - AG v Able 1984
Once it has been shown that the accomplice conducted, helped, or may have helped the principle in some way it does not have to be
established that the accomplice caused the principal's offence (except procuring).
Giannetto 1996 - doesn't know who killed her or hired someone to kill her - even if you encouraged another person to do so then could
be guilty.
Non-accidental presence such as attending a fight or illegal performance is not conclusive evidence of aiding and abetting (R v Coney -
there must be intention to encourage and actual encouragement). Not always required that you were actually there to encourage the
principle.
Coney 1882 - "to constitute an aider and abettor..."
Wilcox v Jeffery 1951 - Journalist had aided and abetted the performance.
State v Tally 1894 - prevented the message getting to the V who was being killed to warn him - more than minimal and he intended to
aid the murder.
Bland 1988 - she lived with the man in a flat who was drug dealing - presumed that she was assisting and encouraged as she lived with
him - court said they could not do this.
Clarkson 1971 - could not convict for just watching the rape - need more than mere proof that they were attending intentionally - there
must be intention to encourage.
Allan 1963 - the mere intention to encourage without actual encouragement is not enough - you can not be convicted for your thoughts
alone.
The control principle - Passive acquiescence can be sufficient - if you have the power to control the situation this can be an exception to the rule.
Du Cros v Lambourne - D's car stopped while speeding with 4 occupants. D claims one of the others was driving. Police claimed in was D. Held - could be held he was liable as it was his car.
Tuck v Robson 1970 - Drinking after hours - Licensee allowed them to be there to drink.
Jf Alford Transport 1997 - employer in employee drivers tachograph falsification - the control principle was reasserted - he could have
prevented them from doing it - he need not have intended that the crime be committed.
Even though there is no law that creates a public duty to take steps to prevent/discourage/stop crime there is a duty to do so when you
are considered in control. Can you be held responsible for your children's acts - you are required to control children on premises.
Counselling:
Agreement, advice, encouragement, assistance that are given before the offence. The offence counselled must be committed by the person counselled and the person counselled must be acting within the scope of his authority. No need to show a causal link between the counselling and commission.
Procuring:
To produce by endeavour. Usually a causal relationship between the accomplice's procuring and the principal's act. Fine line between helping an offender to threatening or commanding someone where there can be duress. There must be a causal link.
If D seeing P with a knife in his hand chasing V shouts "stab him" and P does so it is presumed not only that P heard D's words that they on P's mind and thereby contributed to the commission.
AG ref No1 1975 - D laced P's drink with double spirits knowing that P was shortly to drive home. convicted of drink driving - she had caused him to drink drive.
Calhaem 1985 - D murdered V, K counselled this. As long as there is counselling and as long the one being counselled does the crime.
Can accomplices be liable when the principal is not?
For the accomplice to be liable it is essential that it is proved that a principal committed the offence but it is not necessary to have convicted a principle or even ID him.
Under Serious Crime Act - incitement.
DPP v K and B 1997 - two girls threatened and bullied another girl to remove her clothes an submit to penetration by boy. The boy
remained unidentified even his age was unknown.
Thornton v Mitchell 1940 - Bus conductor gave signal it was all clear - but killed two pedestrians - given the all clear - therefore the conductor should not be held liable either.
Millward 1994 - convicted for being an accomplice in death by dangerous driving - trailer came off the tractor and killed another road
user - an accessory can be liable provided there is an actus reus of the offence
The driver could be acquitted for a personal offence but the owner should have made sure the tractor was safe to use before the driver did so.
In Thornton there was no actus reus and he did not drive without due care and attention.
Bourne 1952 - Bourne charged with bestiality - his wife commits the offence but was threatened by husband - held bourne acted
through his wife - she was acting under duress.
Cogan and Leak 1976 - Husband tells friend that his wife is at home waiting to have sex with them both - husband becomes the rapist
because he procured the offence even though his friend did not rape his wife because he had no mens rea.
Mens Rea:
Common law provides no clear answer as to when D is liable where the offence that P commits is the same type of offence that D believed P would commit, but is, in some manner factually different.
It is unclear whether D's liability can extend infinitely on the basis of a single act of assistance or encouragement.
1. the accomplice must intend to perform the acts alleged to constitute the assistance or encouragement.
2. The accomplice must have intended to assist or encourage the principal's criminal act. They must have knowledge of the essential matters which constitute the offence.
Bryce 2004 - convicted of murder when in the course of dispute he assisted Y, by driving Y & gun to a caravan. The 12 hour delay did not negate the intention to assist.
Not necessary to demonstrate that B's act of assistance were performed at a time when Y had formed the intent to the murder.
There had been no intervening act.
The prosecution must prove an act done by D which in fact assisted the later commission of the offence by P; and that D did the act deliberately realising that it was capable of assisting P with the offence; and that D, at the time of doing the act, contemplated the commission of the offence by P; and that D when doing the act intended to assist P in what he was doing.
More tricky when accomplice is not present or when crime does not go to place.
There are two views on 'intention' in the context of intending to assist/encourage. Was there purpose to assist and encourage or satisfied by the knowledge that what D does will assist and encourage.
Purpose: Fretwell 1862 and Steane 1947. Gillick 1988: giving contraception advice to under 16 year old to incite underage sex. Knowledge: Bainbridge 1960: supplied mate with oxygen cutting equipment thinking he wanted it to melt down stolen goods - used it
to rob the bank. Not enough that something illegal happened: must know of the type of crime the mate will commit. He knew
the type of crime. Lynch v DPP 1957: IRA driver had the intention needed to aid the P. Not necessary to intend full offence to be committed. He must know that P intends to commit a crime of the type actually committed.
DDP v Maxwell 1978: knew that they were doing a terrorist act, not sure what type of act, but was aware that it was terrorist. It
would be one of a limited number of crimes and he intended to assist those. An accomplice will be guilty as long as the offence is in the range that could be contemplated. This introduces reckless knowledge as sufficient - if the accomplice knows that something was going down he knew that there was a risk that an offence would be committed. This could be extended too far, making it tricky that secondary liability is derivative from the principle offence.
Gamble 1959: requires proof of mens rea of intention to aid as well as knowledge of the circumstances and that proof of the intent involves proof of a positive of assistance voluntarily done. However this does place certain obligations on citizens to ensure that nothing they do as part of their normal work can enable anyone else to commit a crime. This could be quite a burden, especially for sellers of goods that may be used in criminal activity.
Johnson v Youden 1950: Solicitor assisted someone in the unlawful selling of a house - must at least know the essential matters that constitute that offence. He need not know that an offence has been committed because he may not know that the fact constitute an offence and ignorance of law in no defence. There is a very fine line between sufficiently knowing the facts of an offence.
Carter v Richardson 1974: Found a driving instructor liable because the driver was drinking, reckless as to whether he was over the
limit, he knew the D had been drinking.
Blakely and Sutton v DPP 1991: D laced P's drink with alcohol and he left the house before she told him, she made him over the limit but was only reckless to the act itself. Comparison: control principle - in Blakely it was insufficient because she had no control over the offence.
Callow v Tillstone 1900 - Cow died and vet examined it and declared it fit for human consumption - can not be liable if they were negligent.
R v Roberts and George 1997: convicted of causing death by dangerous driving: 'the precurer must know the essential matters which constitute the offence and knowledge includes what ought to be known... willful blindness cannot excuse there is a vast distinction between deliberately refraining and making inquires.'
Chan Wing-siu v R 1985: A, B, C, D went to Z's flat armed with knives with intent of robbing Z. A grabbed Mrs Z while B and C took Z away and stabbed him. Principle: C can be convicted of an offence committed as an incident of a joint criminal venture if C foresaw:
‣ a) P might commit the conduct element of the offence (actus reus) and
‣ b) Mens rea
Powell and Daniels 1997: they went to go visit a drug dealer and one of them had a gun with them, one of them shot him and convicted
all the them - 'a secondary party is subject to criminal liability if he contemplated the act causing death as a possible incident of the joint
venture unless the risk was so remote that the jury took the view that the secondary party genuinely dismissed as a remote possibility.' It is vital to include alternative offence for accomplice's actions so if not guilty of same crime as P they may still be guilty of different offence to to there conduct.
Joint Criminal Ventures:
Will involve some arrangement.
Sometimes not everything goes to plan and sometimes there is no conscious/explicit plan.
Where 2+ offenders agree to commit or share a common intention to commit an offence between them.
Their mere fact of arrangement is sufficient to render both offenders liable for agreed offence with no requirement that either does
anything further by way of encouragement or assistance.
Slack 1989: D agreed to rob old lady in her home, one stabbed her - both guilty of murder.
Where the outcome of the planned offence is different from that expected but results in same offence where someone is stabbed but falls into a river and drowns.
However in Saunders and Archer 1573: D advised A to kill his wife with poisoned apple. A put the apple in front of his wife but she gave it to her daughter who ate it and died. D was not an accomplice as there was a drastic change in place although A did not give apple to his daughter. If P and D are parties to joint venture which does not have as its object the killing of V to extent should D be held liable for V's death in the event that P kills V?
Anderson and Morris 1966: disagreement between D1 and V - D1 stabbed the V but D2 did not know that he was going to stab
the V - where 2 persons embark on a joint enterprise, each is liable unless the D1 goes beyond the original activity.
Greaterex and Bates 1999: D was kicking V when D2 attacked with a metal bar. 'Jury were not invited whether the appellant
foresaw a possibility to co-D's...'
One D may be liable for a more serious offence than the others if he has the mens rea for a more serious offence.
‣ The problem with this is that it deviates from the derivative principle - that you should not be convicted of an offence of murder when only manslaughter took place.
Gillmore 2000: driven to house knowing that the house was occupied to petrol bomb the house - driver did not think that it would harm anybody - he had a totally different intention from the D - substituted with a conviction of manslaughter because the act carried out by P was the very act contemplated by D.
English 1997: two people attacked a PO with wooden posts - one D stabbed the officer - D2 did not know that they had a knife - he had not realised that D1 might kill with intent to do GBH. Accomplice didn't have to know? HOL disagreed. Unforeseen use of knife would take the killing out of scope of the joint venture. Accomplice must foresee the act of the type which D1 committed: the use of the knife was fundamentally different to use of a wooden post. We could end up just weighing up weapon, you can kill someone with a wooden post.
Van Hoogstraten 2005: Property developer got 2 people to go scare someone who did not pay rent. One of them shot someone dead. Property developer did not foresee that he was going to shoot somebody - the actual act fundamentally different.
Uddin 1998: V died from a stab wound although he suffered head injuries. D had knife and was convicted of murder. If the weapon used by the primary party was different from but as dangerous as the weapon which the secondary party contemplated he might use, the secondary party should not escape liability because of a difference in weapon.
Neary - can't escape if didnt realise they would die.
Powell and Daniels: All were convicted because they knew their mate had a gun and there was a possibility he would use the gun. unless the risk was so remote then they couldnt be liable.
R v Rahman 2008: Big fight in Leeds with a big group of people. What did the Co-Participant foresee?
D may be too harmful on D when the act done by P is the one D anticipated, but P intended the act to be lethal, whereas D anticipated by D, yet D appreciated not only that P might act with the intent to do serious harm, but also that V might die as a result. In such a case, D may escape liability for murder, in spite of the fact that he or she did anticipate the use of lethal force, if for example P uses a weapon that D did not anticipate P using. HOL: D safer to focus on D's foresight of what an associate might do, an issue to which knowledge of the associates possession of an obviously lethal weapon such as a gun or knife would usually be very relevant.
Is this just common sense? If D realises P might stab V then D should be guilty if they in fact do regardless of whether they could predict P's actions.
"The liability of the second party should be accounted for in the minimum term set for their life sentence not that they should escape liability." Reflect in sentence not liability.
Rahman - would add undesirable level of complexity if the D's had foresee the intention of the P as well as their conduct. • not liable for acts which are fundamentally different which is foreseen.
1. What was the act that caused V's death?
2. Did D realise that one of the attackers might do this act? If so: guilty of murder.
3. What acts did D realise that one of the attackers might do to inflict serious injury?
4. Is this act fundamental different to P's act that actually caused V's death?
Yemoh 2009: the type of knife will not be enough to establish a factual difference which is fundamentally different.
Mendez 2010: 'In cases where the common purpose was not to kill but to cause serious harm D was not liable for the murder of V if
the direct cause of death was a deliberate act by P'
R v A D C and B 2010: realised that there was a real risk that one of the others might intentionally cause him really serious bodily
harm. Does not matter if you cant pinpoint the one who had this intention.
Foresight: English - must foresee act of type committed. Greaterex and Bates - no idea bates had iron bar. Uddin - spontaneous attack - not foreseen. Rahman - do not need to foresee the intention but foresee the act of the P. Mendez - not liable for a deliberate which was not foreseen by the D. A,D,C and B - must realise there was a real risk that one of the others might intentionally cause really serious harm.
Gnango (Armel) 2012: shoot out in a car park between gnango and bandana man. Bandana man killed a passerby. They could not find him but there was still a dead women, and someone needs to be held responsible. They convicted Gnango due to participation but he didn't shoot a person. Sent a Q to the Supreme Court. SC said: G was guilty of murder notwithstanding the fact that he had not find the fatal shot which had been fired by his opponent in an attempt to kill him.
The judgement had been criticised in the content of ongoing debates over the nature of the doctrine of joint enterprise. Stannard asserts that this was a public policy decision suggesting that the prospect of Gnango being prosecuted for his own attempted murder 'surely would be farcical spectacle' and that the courts concern for public opinion had led them to make a erroneous decision.
Co-Principles are those who joined in with the actus reus and had the same mens rea.
An innocent agent may not be liable for the same offence as the principle offenders.
Joint criminal venture is where a group of people are convicted of the same offence.
'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 to be passed, shall be liable to be tried, indicted and punished as a principle offender.' Accessorise and Abettors Act 1861.
AG Ref No1 of 1975: words should be given their ordinary meaning: "Procure": if a person is found to have aided an offence then they are guilty of that offence.
Issues of complicity will arise when there is more than one offender.
Wider scope than those actually involved in the coduct and fault elements.
"This part of criminal law is a mess."
Personal responsibility: you must be responsible for your actions.
Gang violence can escalate and become more serious.
Courts twist the law to try and make sure that we get the bad guys - it is used as a deterrent.
Those involved may be convicted for their activities even if an actual criminal offence is not proven or the principle has defence in law.. an accessory need not be present the criminal culpability for involvement can be reflected in sentence you receive.
Where does the line draw between not assisting and encouraging people but not stopping something that you know is going to happen? Policy area, moral choices.
Often the person who commits the offence is not the big bad guy behind the offenders - accomplice is often more guilty than the actual offender.
The burden of proof is lowered: somebody might have been involved.
Changes to the law in child deaths - where the child dies and more than one adult is supposed to be looking after them - all adults are guilty - one of you killed them and the other encouraged, therefore we don't need to prove who did what.
Controversial - presumption of innocences - should not be convicted unless it has been proven beyond reasonable doubt.
Principle Offender - is one who has the relevant mens rea for the offence either:
A) commits or contributes to the actus reus of an offence by his own act or omissions
B) contributes to the actus reus of an offence by his own act or omission
C) is vicariously liable for the act of another
BUT: Kennedy 2005
Co-Principles - if together they satisfy the definition of the substantive offence and each of them committed the offence with the required fault OR if each of them by their own acts contributes to the causation of the actus reus of the offence if all thier acts together fulfil all the conduct elements and if each of them has the required mens rea (Macklin and Murphy 1938)
Innocent agent - the law protects those people who are used by others to commit crimes and can be seen as blameless (Michael 1840).
Vicarious Liability - imputes liability to the employer for the acts of his employee or agent (Harrow London v Shah 1999)
Accomplices - assisting and encouraging offenders or being a joint enterprise.
Secondary liability is derivative: there has to be an offence that is assisted and encourage the person that commits the offence does not need to be convicted. They are not guilty of anything until something happens and the offence is committed.
Aiding: aid may be given by supplying an instrument, keeping a look out, doing preparatory acts, and many other forms of assistance
given before or at the time of the offence.
Abetting: involves some encouragement of the principal to commit the offence usually accompanies or is implicit in an act of aiding.
Bainbridge 1960 - AG v Able 1984
Once it has been shown that the accomplice conducted, helped, or may have helped the principle in some way it does not have to be
established that the accomplice caused the principal's offence (except procuring).
Giannetto 1996 - doesn't know who killed her or hired someone to kill her - even if you encouraged another person to do so then could
be guilty.
Non-accidental presence such as attending a fight or illegal performance is not conclusive evidence of aiding and abetting (R v Coney -
there must be intention to encourage and actual encouragement). Not always required that you were actually there to encourage the
principle.
Coney 1882 - "to constitute an aider and abettor..."
Wilcox v Jeffery 1951 - Journalist had aided and abetted the performance.
State v Tally 1894 - prevented the message getting to the V who was being killed to warn him - more than minimal and he intended to
aid the murder.
Bland 1988 - she lived with the man in a flat who was drug dealing - presumed that she was assisting and encouraged as she lived with
him - court said they could not do this.
Clarkson 1971 - could not convict for just watching the rape - need more than mere proof that they were attending intentionally - there
must be intention to encourage.
Allan 1963 - the mere intention to encourage without actual encouragement is not enough - you can not be convicted for your thoughts
alone.
The control principle - Passive acquiescence can be sufficient - if you have the power to control the situation this can be an exception to the rule.
Du Cros v Lambourne - D's car stopped while speeding with 4 occupants. D claims one of the others was driving. Police claimed in was D. Held - could be held he was liable as it was his car.
Tuck v Robson 1970 - Drinking after hours - Licensee allowed them to be there to drink.
Jf Alford Transport 1997 - employer in employee drivers tachograph falsification - the control principle was reasserted - he could have
prevented them from doing it - he need not have intended that the crime be committed.
Even though there is no law that creates a public duty to take steps to prevent/discourage/stop crime there is a duty to do so when you
are considered in control. Can you be held responsible for your children's acts - you are required to control children on premises.
Counselling:
Agreement, advice, encouragement, assistance that are given before the offence. The offence counselled must be committed by the person counselled and the person counselled must be acting within the scope of his authority. No need to show a causal link between the counselling and commission.
Procuring:
To produce by endeavour. Usually a causal relationship between the accomplice's procuring and the principal's act. Fine line between helping an offender to threatening or commanding someone where there can be duress. There must be a causal link.
If D seeing P with a knife in his hand chasing V shouts "stab him" and P does so it is presumed not only that P heard D's words that they on P's mind and thereby contributed to the commission.
AG ref No1 1975 - D laced P's drink with double spirits knowing that P was shortly to drive home. convicted of drink driving - she had caused him to drink drive.
Calhaem 1985 - D murdered V, K counselled this. As long as there is counselling and as long the one being counselled does the crime.
Can accomplices be liable when the principal is not?
For the accomplice to be liable it is essential that it is proved that a principal committed the offence but it is not necessary to have convicted a principle or even ID him.
Under Serious Crime Act - incitement.
DPP v K and B 1997 - two girls threatened and bullied another girl to remove her clothes an submit to penetration by boy. The boy
remained unidentified even his age was unknown.
Thornton v Mitchell 1940 - Bus conductor gave signal it was all clear - but killed two pedestrians - given the all clear - therefore the conductor should not be held liable either.
Millward 1994 - convicted for being an accomplice in death by dangerous driving - trailer came off the tractor and killed another road
user - an accessory can be liable provided there is an actus reus of the offence
The driver could be acquitted for a personal offence but the owner should have made sure the tractor was safe to use before the driver did so.
In Thornton there was no actus reus and he did not drive without due care and attention.
Bourne 1952 - Bourne charged with bestiality - his wife commits the offence but was threatened by husband - held bourne acted
through his wife - she was acting under duress.
Cogan and Leak 1976 - Husband tells friend that his wife is at home waiting to have sex with them both - husband becomes the rapist
because he procured the offence even though his friend did not rape his wife because he had no mens rea.
Mens Rea:
Common law provides no clear answer as to when D is liable where the offence that P commits is the same type of offence that D believed P would commit, but is, in some manner factually different.
It is unclear whether D's liability can extend infinitely on the basis of a single act of assistance or encouragement.
1. the accomplice must intend to perform the acts alleged to constitute the assistance or encouragement.
2. The accomplice must have intended to assist or encourage the principal's criminal act. They must have knowledge of the essential matters which constitute the offence.
Bryce 2004 - convicted of murder when in the course of dispute he assisted Y, by driving Y & gun to a caravan. The 12 hour delay did not negate the intention to assist.
Not necessary to demonstrate that B's act of assistance were performed at a time when Y had formed the intent to the murder.
There had been no intervening act.
The prosecution must prove an act done by D which in fact assisted the later commission of the offence by P; and that D did the act deliberately realising that it was capable of assisting P with the offence; and that D, at the time of doing the act, contemplated the commission of the offence by P; and that D when doing the act intended to assist P in what he was doing.
More tricky when accomplice is not present or when crime does not go to place.
There are two views on 'intention' in the context of intending to assist/encourage. Was there purpose to assist and encourage or satisfied by the knowledge that what D does will assist and encourage.
Purpose: Fretwell 1862 and Steane 1947. Gillick 1988: giving contraception advice to under 16 year old to incite underage sex. Knowledge: Bainbridge 1960: supplied mate with oxygen cutting equipment thinking he wanted it to melt down stolen goods - used it
to rob the bank. Not enough that something illegal happened: must know of the type of crime the mate will commit. He knew
the type of crime. Lynch v DPP 1957: IRA driver had the intention needed to aid the P. Not necessary to intend full offence to be committed. He must know that P intends to commit a crime of the type actually committed.
DDP v Maxwell 1978: knew that they were doing a terrorist act, not sure what type of act, but was aware that it was terrorist. It
would be one of a limited number of crimes and he intended to assist those. An accomplice will be guilty as long as the offence is in the range that could be contemplated. This introduces reckless knowledge as sufficient - if the accomplice knows that something was going down he knew that there was a risk that an offence would be committed. This could be extended too far, making it tricky that secondary liability is derivative from the principle offence.
Gamble 1959: requires proof of mens rea of intention to aid as well as knowledge of the circumstances and that proof of the intent involves proof of a positive of assistance voluntarily done. However this does place certain obligations on citizens to ensure that nothing they do as part of their normal work can enable anyone else to commit a crime. This could be quite a burden, especially for sellers of goods that may be used in criminal activity.
Johnson v Youden 1950: Solicitor assisted someone in the unlawful selling of a house - must at least know the essential matters that constitute that offence. He need not know that an offence has been committed because he may not know that the fact constitute an offence and ignorance of law in no defence. There is a very fine line between sufficiently knowing the facts of an offence.
Carter v Richardson 1974: Found a driving instructor liable because the driver was drinking, reckless as to whether he was over the
limit, he knew the D had been drinking.
Blakely and Sutton v DPP 1991: D laced P's drink with alcohol and he left the house before she told him, she made him over the limit but was only reckless to the act itself. Comparison: control principle - in Blakely it was insufficient because she had no control over the offence.
Callow v Tillstone 1900 - Cow died and vet examined it and declared it fit for human consumption - can not be liable if they were negligent.
R v Roberts and George 1997: convicted of causing death by dangerous driving: 'the precurer must know the essential matters which constitute the offence and knowledge includes what ought to be known... willful blindness cannot excuse there is a vast distinction between deliberately refraining and making inquires.'
Chan Wing-siu v R 1985: A, B, C, D went to Z's flat armed with knives with intent of robbing Z. A grabbed Mrs Z while B and C took Z away and stabbed him. Principle: C can be convicted of an offence committed as an incident of a joint criminal venture if C foresaw:
‣ a) P might commit the conduct element of the offence (actus reus) and
‣ b) Mens rea
Powell and Daniels 1997: they went to go visit a drug dealer and one of them had a gun with them, one of them shot him and convicted
all the them - 'a secondary party is subject to criminal liability if he contemplated the act causing death as a possible incident of the joint
venture unless the risk was so remote that the jury took the view that the secondary party genuinely dismissed as a remote possibility.' It is vital to include alternative offence for accomplice's actions so if not guilty of same crime as P they may still be guilty of different offence to to there conduct.
Joint Criminal Ventures:
Will involve some arrangement.
Sometimes not everything goes to plan and sometimes there is no conscious/explicit plan.
Where 2+ offenders agree to commit or share a common intention to commit an offence between them.
Their mere fact of arrangement is sufficient to render both offenders liable for agreed offence with no requirement that either does
anything further by way of encouragement or assistance.
Slack 1989: D agreed to rob old lady in her home, one stabbed her - both guilty of murder.
Where the outcome of the planned offence is different from that expected but results in same offence where someone is stabbed but falls into a river and drowns.
However in Saunders and Archer 1573: D advised A to kill his wife with poisoned apple. A put the apple in front of his wife but she gave it to her daughter who ate it and died. D was not an accomplice as there was a drastic change in place although A did not give apple to his daughter. If P and D are parties to joint venture which does not have as its object the killing of V to extent should D be held liable for V's death in the event that P kills V?
Anderson and Morris 1966: disagreement between D1 and V - D1 stabbed the V but D2 did not know that he was going to stab
the V - where 2 persons embark on a joint enterprise, each is liable unless the D1 goes beyond the original activity.
Greaterex and Bates 1999: D was kicking V when D2 attacked with a metal bar. 'Jury were not invited whether the appellant
foresaw a possibility to co-D's...'
One D may be liable for a more serious offence than the others if he has the mens rea for a more serious offence.
‣ The problem with this is that it deviates from the derivative principle - that you should not be convicted of an offence of murder when only manslaughter took place.
Gillmore 2000: driven to house knowing that the house was occupied to petrol bomb the house - driver did not think that it would harm anybody - he had a totally different intention from the D - substituted with a conviction of manslaughter because the act carried out by P was the very act contemplated by D.
English 1997: two people attacked a PO with wooden posts - one D stabbed the officer - D2 did not know that they had a knife - he had not realised that D1 might kill with intent to do GBH. Accomplice didn't have to know? HOL disagreed. Unforeseen use of knife would take the killing out of scope of the joint venture. Accomplice must foresee the act of the type which D1 committed: the use of the knife was fundamentally different to use of a wooden post. We could end up just weighing up weapon, you can kill someone with a wooden post.
Van Hoogstraten 2005: Property developer got 2 people to go scare someone who did not pay rent. One of them shot someone dead. Property developer did not foresee that he was going to shoot somebody - the actual act fundamentally different.
Uddin 1998: V died from a stab wound although he suffered head injuries. D had knife and was convicted of murder. If the weapon used by the primary party was different from but as dangerous as the weapon which the secondary party contemplated he might use, the secondary party should not escape liability because of a difference in weapon.
Neary - can't escape if didnt realise they would die.
Powell and Daniels: All were convicted because they knew their mate had a gun and there was a possibility he would use the gun. unless the risk was so remote then they couldnt be liable.
R v Rahman 2008: Big fight in Leeds with a big group of people. What did the Co-Participant foresee?
D may be too harmful on D when the act done by P is the one D anticipated, but P intended the act to be lethal, whereas D anticipated by D, yet D appreciated not only that P might act with the intent to do serious harm, but also that V might die as a result. In such a case, D may escape liability for murder, in spite of the fact that he or she did anticipate the use of lethal force, if for example P uses a weapon that D did not anticipate P using. HOL: D safer to focus on D's foresight of what an associate might do, an issue to which knowledge of the associates possession of an obviously lethal weapon such as a gun or knife would usually be very relevant.
Is this just common sense? If D realises P might stab V then D should be guilty if they in fact do regardless of whether they could predict P's actions.
"The liability of the second party should be accounted for in the minimum term set for their life sentence not that they should escape liability." Reflect in sentence not liability.
Rahman - would add undesirable level of complexity if the D's had foresee the intention of the P as well as their conduct. • not liable for acts which are fundamentally different which is foreseen.
1. What was the act that caused V's death?
2. Did D realise that one of the attackers might do this act? If so: guilty of murder.
3. What acts did D realise that one of the attackers might do to inflict serious injury?
4. Is this act fundamental different to P's act that actually caused V's death?
Yemoh 2009: the type of knife will not be enough to establish a factual difference which is fundamentally different.
Mendez 2010: 'In cases where the common purpose was not to kill but to cause serious harm D was not liable for the murder of V if
the direct cause of death was a deliberate act by P'
R v A D C and B 2010: realised that there was a real risk that one of the others might intentionally cause him really serious bodily
harm. Does not matter if you cant pinpoint the one who had this intention.
Foresight: English - must foresee act of type committed. Greaterex and Bates - no idea bates had iron bar. Uddin - spontaneous attack - not foreseen. Rahman - do not need to foresee the intention but foresee the act of the P. Mendez - not liable for a deliberate which was not foreseen by the D. A,D,C and B - must realise there was a real risk that one of the others might intentionally cause really serious harm.
Gnango (Armel) 2012: shoot out in a car park between gnango and bandana man. Bandana man killed a passerby. They could not find him but there was still a dead women, and someone needs to be held responsible. They convicted Gnango due to participation but he didn't shoot a person. Sent a Q to the Supreme Court. SC said: G was guilty of murder notwithstanding the fact that he had not find the fatal shot which had been fired by his opponent in an attempt to kill him.
The judgement had been criticised in the content of ongoing debates over the nature of the doctrine of joint enterprise. Stannard asserts that this was a public policy decision suggesting that the prospect of Gnango being prosecuted for his own attempted murder 'surely would be farcical spectacle' and that the courts concern for public opinion had led them to make a erroneous decision.
- Rahman 2008: The courts focussed on D's foresight of P's actions, not on his intention. It does not matter if D foresaw the intention of P as long as the act was foreseeable.
- What was the act that caused V's death? Did D realise that one of the attackers might do this act (Y = guilty)? What act did D realise one of the attackers might do to inflict serious injury? Is this act fundamentally different to P's act that actually caused V's death (Y = not guilty; N = guilty)?
- Yemoh 2009: Ds knew one D had a stanley knife, but the P had a bigger knife so they were not guilty.
- Mendez: D is not liable if P causes death through a deliberate act that was unforeseen and more life-threatening than acts that could have been foreseen.
- R v A, D, C & B 2010: Three of them beat V up and the fourth organised it. No weapons were involved and there was no proof of who did what. All liable for murder. They must realise that there was a real risk that one of the others might intentionally cause really serious bodily harm.
- FORESIGHT is important in Criminal law.
- English: must foresee the type of act committed - beating someone with a post, another D stabbed him.
- Greaterex and Bates: they had no idea that P had an iron bar.
- Van Hoogstraten: D wanted to scare V by telling P to go to him with a gun. P shot V. D not guilty because it was fundamentally different.
- Gnango (Armel) 2012: D and P were involved in a shootout. P shot and killed a passer-by. D was found guilty even though he hadn't actually shot the woman.