#17258 - Secondary Liability - GDL Criminal Law

Multiple offenders can be divided into two broad categories:

• Principal offenders: usually those who physically perform the necessary AR.

• Secondary offenders: in some way assists the principal in the offence.

Four areas:

• Joint Principals

• Accomplice Liability (aid, abet, counsel or procure)

• Joint enterprise

• Withdrawal

Andrew Ashwoth: the ‘common law running wild’

• Too many decisions on complicity, so that courts (and/or counsel) tend to pick and choose among the many precedents;

• There is no settled set of principles, which means that judicial development of the law does not always conduce to coherence.

Occurs when two or more offender. Each of the offenders had both the necessary MR and AR for the offence (e.g. two burglars)

• Macklin, Murphy (1838)

Note that two offenders who commit the same AR may be liable for different offences if their MRs differ. E.g. an offence against a person and one only intends to inflict some harm (s.20) while the other intends grievous harm (s.18).

S.8 Accessories and Abettors Act 1861: “Whoever shall aid, abet, counsel or procure… shall be liable to be tried, indicted and punished as a principal offender.”

Definitions:

• The words are to be given their ordinary English meanings (AG’s Ref No.1 of 1975)

• Aid: to give help, support or assistance

  • Clarkson [1971] - Holding the victim down while they were raped would count – in this case they merely watched.

  • Bainbridge [1960] Supplied oxygen cutting equipment which was used to break into a bank six weeks later.

• Abet: to encourage or incite

  • Wilcox v Jeffery [1951] – Wilcox reported on the arrival of a Jazz musician who was told he was not legally allowed to perform in the UK. Wilcox bought a ticket and praised the show. Found to have encouraged illegal activity.

  • Clarkson [1971] – soldiers watched as D1 raped V. No gestures or encouragement. Held could not be liable by simply being present.

  • Francom [2004] – V kidnapped and held for 24hrs, was severely beaten and abused. No evidence that D had committed any of these offences, but had been present for full 48hrs.

    • Lord Woolf stated that given the length of time that D2 was present (all 48hrs) was tantamount to encouragement.

• Counsel: advise, solicit, or encourage

  • Gianetto [1997] – Unsure if G or third party killed wife. Held it did not matter as long as G had necessary MR.

    • If someone tells you they plan to kill your wife then simply patting them on the back or saying ‘oh goody!’ would be sufficient for counselling murder.

• Procure: to ‘procure by endeavor’

  • AG’s Ref No.1 of 1975 – D laced V’s drink at the pub. V caught drink driving. D liable for ‘procuring by endevour’

Key principals

• While a principle offender may be strictly liable a secondary offender cannot be strictly liable, and always requires MR

  • Callow v Tillstone (1900) – Butcher (D1) sold meat unfit for consumption despite it being certified by a vet (D2). As D2 was negligent he lacked the necessary MR for liability.

• A victim cannot be an accomplice

  • Tyrell [1894] – an underage girl encouraged an older man to have sex with her. Not liable.

• To be guilty, the principal offence must have been committed. You cannot be an accomplice after the offence has been committed.

  • However, it is possible that only the AR of the primary offence has been committed:

    • Bourne (1952) – Husband compelled with to beastiality with the family dog. The wife had a defence (compelled to do the act). The husband was laible despite main offence only having MR.

    • Cogan and Leak (1975) – Husband compelled others to rape his wife. Marital rape was not a crime (until 1991) so lack the MR.

• There need not be a causal connection between ‘abetting’ or ‘counselling’ and the principal offence

  • Calhaem [1985] – D had counselled another (Z) to kill the victim. Z decided not to carry out the murder. Later Z went bezerk and killed the victim. Held no need for counselling to be causally connected with murder.

• Exceptions to aiding, abetting and counselling per s.73 Sexual Offences Act 2003

  • This followed the case of Gillick v West Norfolk HA [1986] - Ms Gillick argued that by providing advice on contraception to girls under 16 the Drs became D2 liable. Held that there was a defence of necessity.

  • Codified in statute, exceptions include:

    • protecting the child from sexually transmitted infection,

    • protecting the physical safety of the child,

    • preventing the child from becoming pregnant, or

    • promoting the child's emotional well-being

Generally presence alone cannot amount to liability:

• Clarkson [1971] – above, watching soldier rape. Not liable.

• But:

  • Wilcox v Jeffery [1951] – above, buying ticket for and writing about illegal jazz performance was abetting.

  • Francom [2004] – presence for 48hours of abuse amounted to abetting

Problems with domestic killing:

• Lane and Lane (1986) – 22month old killed as a result of fractured skull. No evidence which parent did it. Neither liable.

• Resulted in Domestic Violence, Crime and Victims Act 2004, s. 5

  • Bespoke crime of causing or allowing the death of a child or vulnerable adult in the same house. D2 liable even if not the direct cause of death.

  • Amended in 2012 to include serious injury.

• Khan [2009] – applied the act. A strict liability crime provided death/serious injury was reasonably foreseeable and no reasonable steps taken to prevent.

There can be a duty to intervene (liability by omission):

• Tuck v Robson [1970] – allowed customers to drink outside licence hours.

• Du Cross v Lambourne [1907] – allowing another party to drive your vehicle dangerously.

• Carter v Richardson [1974] – allowing another to drive your vehicle while they are drunk.

Mens Rea Requirement

• Andrew Semester: the conduct element is minimal it is all about fault.

• D2 must have

  • 1) Intent to commit the act that assisted the primary defendant

  • 2) Knowledge that the perpetrator is committing/intends to commit the offence.

  • Established in National Coal Board v. Gamble [1959] – haulier took overweight lorry on the road. per Lord Devlin.

• 1) Intent to commit the act that assisted the primary defendant

  • NB not intent relating to the offence itself, merely the act that aids, abets, counsels or procures.

• 2) Knowledge that the perpetrator is committing/intends to commit the offence.

  • Lord Devlin: if someone sells a gun to someone who says they want to kill their wife then guilty even if only interested in the profit.

  • Need not know the exact details of the offence:

    • Bainbridge [1960] – knew oxygen cutting equipment would be used for some type of robbery

  • Cannot escape liability by simply stating ‘no questions asked’

    • DPP for NI v Maxwell [1978] – D2 drove terrorists to plant bomb in pub. Did not ask what they were doing. Still liable for any offence if he had reasonable considered it.

  • Sufficient for D to have contemplated a ‘real possibility’ that the principal might commit the offence:

    • Bryce (2004) – D drove man to a site where 13 hours later he committed a murder. Held all that was necessary in the secondary party was foresight of the real possibility that an offence would be committed by the principal.

  • Subjective reckless awareness is sufficient

    • Carter v Richardson [1974] – driving instructor was aware driver may be drunk, did not stop him. Liable.

    • Blakeley v CC West Mercia [1991] – B and another added alcohol to V’s tonic water. Intended to tell him so he would not go home. Was found over the limit. Held Ds had recklessly procured the offence.

Joint enterprise occurs when two or more people act with a shared common intention which involves at least one of them committing a crime.

Two issues:

• What was the fault for D2 liability – how is this justified?

• When, if ever, does the course of conduct for D1 go outside of the course of conduct anticipated or planned.

Initially confused case law:

• Davies v DPP [1954] – rival gangs settling a dispute. One party produces a knife and kills V. Held that “If one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorised act.”

• Chan Wing Siu [1985] – Pricy Council. D2 went to flat with intention to steal. D1 produced a knife and stabbed victim. Sir Robin Cook stated it turns on “authorisation, which may be express but more usually implied.”

  • If a defendant foresees that the principal may commit an offence which goes beyond the plan,even if he doesn’t intend it, then he is liable.

• Problems with this:

  • 1) To contemplate a crime is vastly different from showing authorisation of it.

  • 2) In murder the fault element is intention to kill/cause GBH, this ascribes liability for mere lending yourself to a venture.

Discordant decisions in HoL followed:

• Powell [1999] - D had rung doorbell of known drug dealer, and one party had shot the homeowner to death.

  • Held that Foresight of a realistic possibility, not even a probability, sufficed.

• English [1999] – attacked policeman with wooden posts, another party stabbed him.

  • Appeal allowed as the principal committed an act which was fundamentally different from the one jointly contemplated. The difference in weapon made the offence fundamentally different.

• Rahman [2008] – gang attacked V with a variety of weapons. V killed by stab wound. Could not prove who had delivered fatal wound. Held D was guilty as either as primary or secondary party he had intended GBH.

  • Lord Bingham: “If he...