#14661 - Secondary Liability Accessory Principles - GDL Criminal Law

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Secondary Liability Principles

Criminal liability of a secondary participant where the principal has in fact committed the offence (compare inchoate liability which is an incomplete offence).

S.8 Accessories and Abettors Act – “aid, abet, counsel or procure the commission of any indictable offence...shall be liable to be...punished as a principal offender”

• NB: S.2(1) Suicide Act 1961 creates accessorial liability for aiding suicide, which isn’t in fact an ‘indictable offence’ as it isn’t illegal to kill yourself – public policy overriding technical rules

Inconsistency:

• A Ashworth: “common law running wild – there are too many decision on complicity, so that courts...tend to pick and choose among the many precedents; and there is no settled set of principles”

Actus Reus

• AG’s Ref No.1 of 1975 “we approach the section (S.8 Accessories and Abettors Act) on the basis...that if four words are employed...the probability is that there is a difference between each of those four words”

• Sir John Smith: "procuring requires causation but not consensus; encouraging requires consensus but not causation; assisting requires actual help, but neither consensus nor causation"

• Encouragement

  • R v Gianetto “if he played any part, either in encouragement, as little as patting him on the back, nodding, saying ‘oh goody’, that would be sufficient to involve him in the murder, to make him guilty, because he is encouraging the murder”

• Advice

  • Gillick v West Norfolk Health Authority (below)

Mother tried to get the doctors in trouble for giving contraceptive advice under this head of liability

Held: declaration refused – it wasn’t unlawful on policy grounds

NB: S.73 Sexual Offences Act has codified this exception

• Supplying materials

  • R v Bainbridge (below)

Held: secondary liability found as he knew that the material wasn’t going to be used in the ordinary way – it had a criminal use

• NCB v Gamble (below)

Lorry driver took an overloaded lorry over a weighbridge, and the weighbridge operator had noticed, warned him, but allowed him to continue on the driver’s assurance

Held: liable as an accomplice as he had sufficient knowledge of the unlawful act & had done an act of assistance by not preventing the driver

Presence at the scene of the crime as assistance

The argument that D1 derives support & encouragement from the presence of D2

R v Coney

D2 Coney was present at an illegal prize fight

Held: not enough to establish liability, despite the fact he had a secret desire to join in if his side were to lose. Proof required of some positive act.

Wilcox v Jeffery

Saxophonist Coleman Hawkins wasn’t allowed into the UK, however D met Hawkins at the airport & helped him.

Held: proof of positive acts of encouragement & support, so he incurred D2 liability

R v Clarkson

Rape occurred on V in an army barracks & D2 Clarkson took no part in the rape but simply stood by and watched.

Held: no liability simply by being present.

R v Francom

V had been kept in a flat for over 2 days, and the autopsy revealed she had suffered more than 48 types of injury including a wide ranging spectrum of abuse

Held: because of the wide time period, the fact that D2 had been presence over the 2 day period (though Francom had not been shown to inflict the injuries) that he had incurred secondary liability

Failure to intervene

Tuck v Robson

Licensee failed to remove punters who were fighting

Held: secondary liability

Carter v Richardson

Learner driver suspected to have been over the limit

Held: driving instructor incurred secondary liability because of his duties as an instructor. It was sufficient that he had a Cunningham recklessness standard applied

Domestic Violence

Lane and Lane

Killing of a 22month old by 1 blow to the head causing a fractured skull. The blow occurred between lunchtime & 6.30pm in the evening. The problem for the prosecution was that it was impossible to say which defendant had inflicted the fatal injury

Held: no case to answer for either party which caused great uproar -

The result was the S.5 Domestic Violence, Crime and Victims Act 2004 which makes D2 liable when the killing occurs in the same household. It imposes a crime of negligence punishable by a max. 14 years imprisonment by causing the death of a child/vulnerable adult if D2 ought to have foreseen the risk of serious injury being caused they will be liable, as long as:

• There is a significant injury

• In circumstances that would have been reasonably foreseeable

• They failed to take steps that they could reasonably have been expected to take to protect V from risk

R v Khan

Wife came from Pakistan with her husband and his brother & sisters in Bradford on an arranged marriage. D1 killed his wife by hitting her with a spade in the garage. D2 argued that they weren’t in the property at the time of the killing, however in the 3 weeks up to the point of killing there had been repeated episodes of violence

Held: (CA) where someone is a vulnerable adult, there doesn’t have to be exact knowledge between the harm that occurred and what D2 foresaw. There doesn’t need to be knowledge of the level of violence provided they would have reasonably foreseen significant injury. Nor did it matter that they weren’t present at the time. It was left open as to whether the sisters-in-law were themselves subjected to abuse.

See Domestic Violence Crime and Victims (Amendment ) Act 2012

Mens Rea

In order for D2 to have secondary liability, he must have knowledge of the essential matters that constitute the offence - some sort of subjective awareness of the elements of the principal offender’s crime.

So it must be shown:

• Intentional assistance to D1

• Knowledge of the elements of D1’s crime

What doesn’t need to be proven is D2’s knowledge of the exact details of D1’s crime. It is sufficient for D2 to have supplied materials for a burglary knowing that D1 intends to commit a burglary; not necessarily which house or bank etc.

Blakeley and Sutton v Chief Constable of West Mercia

D2 was having an affair with a married man; she was out at a pub with him and she slipped vodka into his drink to make him unable to drive home to his wife. He however drove home whilst she was in the loo and got stopped by police.

Held: D2 possessed Cunningham recklessness for the crime of drink driving - secondary liability found

R v Bainbridge

Supplied oxygen cutting equipment to D1 who broke into the Stoke Newington branch of the West Midland Bank, though the burglary occurred 10 weeks after. D2 argued that he had no awareness of the time, the date or the place that this crime was going to occur.

Held: (CA) it is not necessary to show that D2 knew all the details, only that D2 knew the crime D1 was going to commit. Thus if he had committed 100 burglaries, Bainbridge would have been D2 for every single one of them.

DPP for NI v Maxwell

Maxwell drove a group of terrorists to the airport, and he was aware that his passengers were going to do some of a range of crimes.

Held: liability can also be incurred by D2 if he is aware of the range of crimes D1 is going to commit.

Gillick v West Norfolk Health Authority

• Devlin J: liability for D2 where they know the facts constitute the offence, and know that their action in issuing the ticket enabled the driver to commit the crime. Sufficient that D2 committed an act knowing that it would enable D1 to commit a crime.

R v Bryce

D2 intentionally transported D1 to the scene of a crime, but the eventual killing didn’t occur until some 13 hours later after D1 had been dropped off

Held: (CA) in this case, the jury were entitled to infer that D2 had intentionally assisted D1; that act was committed knowingly and with contemplation; and this knowledge went to the type of crime that D1 had committed

Joint Enterprise

Also called common purpose liability, it’s unclear whether this is a different form of secondary liability or a type of liability within it.

Where parties A B + C come together to commit an illegal venture and in the course of carrying out this plan (purpose A), C carries out a collateral crime (purpose B) i.e. if in carrying out a bank robbery, C shoots a security guard dead. Joint enterprise finds principal liability for A & B for purpose B.

However: what is the fault element for parties A & B? How much knowledge/foresight/consent of purpose B must they possess in order to inculpate them for the offence?

Historical Development

Anderson and Morris

V tried to strangle X, B’s girlfriend. B went to his house in order to rough him up a bit, and brought his friend. Unknown to him, his friend had a knife and stabbed V to death.

Held: B was not liable for the homicide because the friend (Anderson’s) stabbing was unauthorised in terms of the plan

Davies v DPP

One of the members of the gang had a knuckle duster and punched and killed a member of the rival gang. His gang had organised the fight.

Held: that use of the knuckle duster took it outside of the plan; it was unauthorised in terms of the plan

• "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

D1, D2 and others broke into V’s flat intending to steal. D1 stabbed the householder to death.

The question was whether D2 was liable for this murder.

Held: ‘parasitic accessory liability’ founded

Part of the problem in the law was started by this statement...