#3592 - Complicity - Criminal Law

Note that this area of law is incredibly hazy and complex. Academics are incredibly divided on what the state of the law is, particularly what is to be said joint enterprise liability in light of Gnango.

• 4 ways in which you can be party to a crime:

  • Principal (most immediate cause of AR with relevant MR).

  • Innocent agent (person who is most immediate cause of AR but who lacked MR or who had a defence to the crime - not guilty of an offence. Often a principal can commit a crime through the innocent agent).

    • Michael – D left a bottle of poison on the mantelpiece. Her son gave it to V (though she had MR). Son was innocent agent due to age and no MR.

    • Tyler and Price – D thought he was the saviour of the world who had to shoot policemen. He was insane. Person who instigated the offence, however, is the principal offender.

    • NOTE: some crimes cannot be committed through an innocent agent e.g. rape. The person who reasonably believes in consent in the Morgan scenario is guilty of an offence. The person who did the encouraging cannot be the principal because he did not have sex. The AR in murder is causation, which can be caused indirectly.

  • Secondary party/accessory/accomplice (person who aids, abets, counsels, or procures a substantive offence committed by the principle. Accessories and Abettors Act 1861 s.8 for indictable offences. Magistrates’ Courts Act 1980 s.44 for summary offences).

    • Principal must have committed an offence (A, B, C, and D)

    • Accessory must have committed AR of being an accessory

    • Accessory needs an MR – very controversial what MR is.

    • Accessory is convicted of the substantive offence:

      • Gianneto: D had either killed or had hired someone to kill his wife. It could not be established which, but if he had acted as an accessory he could still be prosecuted of the murder as a principal.

  • ‘Joint enterprise’ liability. Three interpretations:

    • Liability of joint principals – two people who both commit the substantive offence, often by virtue of a prior agreement. Seems somewhat pointless, because both are guilty of the substantive offence – not a rule of law.

      • Gnango – Exchange of gunfire between two men. Facts were a bit unclear, but it appears 2 men met in a public space surrounded by buildings. Both carrying guns and from rival gangs – clearly knew each other. D and bandana man (who disappeared). BM fired at D, who fired back. No evidence that in firing back he was acting in self-defence. BM fired back, missed him, and killed a passer-by. D was charged with murder. Was he liable for murder, given that his bullet did not kill V? Justices said there was a joint enterprise – understanding that they would meet and should each other. They were both therefore principal offenders and D was guilty of murder. But there was a failure by Lord Clarke to analyse causation. Lord Kerr picks up on this – his judgment is easily the best. Reasoning joint enterprise to convict in this situation is misleading and wrong.

    • Assisting or encouraging.

      • “Where two person, D1 and D2 agree to the commission of an indictable offence, where both are present at the place where the criminal act is to be performed and where one of them, D1, commits that act, both will be jointly liable for the crime. The act will have taken place pursuant to their joint criminal purpose and D2 will be equally guilty with D1, having aided, abetted, counselled or procured D1 to commit the crime.” - Gnango

  Derivative Liability

  • Parasitic – substantive offence must be committed.

  • Note: in exams, always start with liability of the principal. Until you know what substantive offence has been committed, if any, accessory liability cannot be determined – A, B, C and D.

  • Strict principal of derivative liability: accessory is convicted of same offence as principal. For murder, this means the mandatory life sentence.

  • The accessory MAY be convicted of a more serious offence. Where D has a lesser MR (e.g. negligence) or a defence.

    • Principal may be guilty of manslaughter through partial defence, but an accessory can be guilty of murder. Homicide Act 1957 s.2(4) and Coroners and Justice Act 2009 s.54(8). Hui Chi-Ming – Accessory, who did not do the killing but contemplated it, was executed, whereas the principal who had a lesser MR was only guilty of manslaughter.

  • The opposite is also true – accessory may be guilty of a less serious offence – Stewart and Schofield.

  • In rare cases, there may still be a conviction for an accessory EVEN IF the principal is acquitted e.g. where P has a defence.

    • Bourne – D made his wife have sex with a dog. She committed the crime of bestiality but was acquitted due to the defence of duress/martial coercion. D was guilty of being an accessory to bestiality.

  • Can an accessory be convicted where no crime has been committed? Acquittal of the principal without a defence.

    • If there is no MR, there is no crime. Thornton v Mitchell – bus driver being directed by D to direct a bus out of a depot. Driver hit pedestrians who D had not seen. The driver was charged with driving without due care and attention – he was acquitted. D was also acquitted, because he could not be an accessory to nothing. S was not liable for procuring because the AR for that offence was not there.

    • NOW – if the principal commits AR without MR, there are exceptional circumstance where the accessory could be an accessory to the AR. Dependant on AR being committed.

      • Millward – employee driving work vehicle, which was dangerous. Something flew off the vehicle which cause the driver of another vehicle to be killed. The driver was charged with causing death by reckless driving. He was not guilty because he was not reckless – no MR. But the employer, who encouraged him to drive the vehicle in that dangerous condition, was convicted of being an accessory to MR.

    • Trick to understanding the principle: if the principal has only committed the AR, they are an innocent agent. The person who is the next closest cause of harm is the principal. Some crimes can’t be committed through innocent agents – driving offences are included in these. So if the AR has been committed and the crime cannot be committed through an innocent agent, you can be an accessory to the innocent agent’s AR – policy decision simply to get the right result.

  Accessorial Liability

  Actus reus:

  • Aiding, abetting, counselling or procuring. These may overlap – establishing one will suffice.

    • AG Ref No 1 ’75 – The words above should be given their ordinary meaning and you should assume that they do mean different things.

      • Procuring – inducing by endeavour. Brining about the crime.

      • Counselling – encourage, instruct or authorise. Recognised in Calhaem.

      • Abetting – encouraging, persuading etc. Abetting occurs at the time of the substantive offence, while counselling occurs before.

      • Aiding – helping/assisting, either before or during, but not after.

  Theoretical foundation for accessory liability:

  Causation

  • Must show that the accessory played some sort of causal role in the commission of the offence.

  • Is it necessary to show causation for assisting and encouraging?

    • Calhaem – don’t need causation. As long as the principal is aware of your encouragement, you don’t need to prove that it actually influenced their decision to commit a crime.

    • Bryce – to establish liability for assisting a crime, you have to show that the act of assistance did cause the crime to be committed.

    • Mendez and Thompson [2010] – for all secondary liability, the justification for imposing liability is causation.

    • Luffman – CoA rejected causation as the basis for liability.

    • Stringer [2011] – CoA affirmed the decision in Luffman.

  • But – voluntary acts of a party represent a novus actus, don’t they? Kennedy (No 2). So the causation principle must be rejected – CoA has got it right in recent cases.

  Connection

  • Stringer – Don’t need to show that there was causation, but it is sufficient that there was a connecting link between the assistance/encouragement and the commission of the offence.

  • Material contribution is sufficient to hold someone liable as an accessory. For encouragement, you must show that the word/actions on the accessory have operated on the mind of the principal.

  • Where does remoteness come in here? There must be a limit.

    • Stringer – A gang chased V, who was eventually killed by the principal. The chase was tracked on CCTV, which tracked the chase, but lost sight of the gang at the time of the killing. So it couldn’t be shown that the chase continued absolutely at the point when V was murdered. The court found a sufficient connection between the chasing or the killing, so that the principal was either assisted (chased into the hands) or encouraged (comfort of knowing other gang members were nearby, and he had a reasonable expectation that they would assist if necessary).

  • Still problems with the connection test, because the act of the principal should break the chain of causation.

  Association

  • An accessory should be convicted if they can be regarded as associating themselves in some way with the commission of the substantive offence. This would be the case if there was a prior agreement between the parties.

  • A, B, C and D – specifically used the language of causation. When there is an agreement to commit a crime, if another crime is committed in the commission of the offence, the accessory will be liable as an accessory to the substantive offence.

  • Association further discussed in Gnango:

    • ‘parasitic accessory liability must be founded on a common unlawful enterprise or purpose. It is joining in this common enterprise...