Secondary Liability

• In this lecture, we will consider the liability of secondary parties and the principle of joint enterprise.

• 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.

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.

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.

• 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 someone’s 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.

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."

• 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).

• 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).

• 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.

• 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)

• What is the extent of knowledge required of a secondary party?

• See Ferguson v Weaving (1951)

• 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).

• 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.

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.

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.

• 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)).

How have the courts defined a joint enterprise?

• In Peters and Parfitt (1995), it was defined as being:

•  “A shared common intention…each has the same intention as the other and each knows that the other intends the same thing.”

• 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.

• 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.

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).

• The appeals in Powell and English were heard together by the House of Lords.

• Facts of Powell

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.

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.

• 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)).

• HL held in Powell&English 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 P’s 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.

• 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.

• 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)

• Where P’s 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 P’s mens rea takes him outside was considered in Gilmour (2000).

• Gilmour - court distinguished between situation (a) where P’s 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 P’s actions would not be outside the scope of the joint enterprise.

• 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.

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).

• 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.

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.

Withdrawal of participation by an accomplice

• Mere repentance without any action on D’s 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).

• 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.

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.

• 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.