Parties to crime( secondary liability)

• Secondary Liability


  When a person (D) assists or encourages another person (P) to commit a crime, D can be held liable as a secondary party even though they did not directly commit the crime
• Learning outcomes


  • Types of Collaborations
  • What is secondary liability
  • Actus Reus of secondary liability
  • Mens rea of secondary liability
  • Change of law "wrong turn"
  • Withdrawal
• Types of Collaboration

  • Principals (P) - Person who directly commits a crime
  • Secondary Parties (accessories, accomplices) (D) - Helps the principal offender commit the crime
• Joint-principals


  • Where two or more people join in committing a single crime where they are, in effect, all joint principals. Each party plays a part in carrying out the conduct element of the offence.
• Joint-principals


  • Agreement between A & B to commit a robbery, both enter the post office, attack the cashier and steal money
  • A,B,C & D go on a shoplifting spree together, they each take items and leave shops without paying
  • A & B see an open window at a house and impulsively decide to enter to see if there is anything to steal. Both enter and leave with items.
• Secondary Liability


  Secondary party (D) aids, abets, counsels or procures P to commit the substantive offence.
• By virtue of s.8 Accessories and Abettors Act 1861, secondary parties will be indicted and punished as a principal
• Mere presence / association is not enough (R v Clarkson (1971)) unless D intended that by being present he would assist / encourage
• Examples of secondary liability

  • A enters a house as a trespasser in order to steal, B drives A to and from the scene and acts as look out whilst A is inside
  • A & B approach C who they have heard is spreading rumours about them. A punches C several times whilst B cheers and shouts to A to "give him a good kicking"
  • A provides B with a gun, knowing that he wants to use it in a robbery
• Actus Reus for secondary liability

  S.8 Accessories and Abettors Act 1861: "Whosoever shall aid, abet, counsel or procure the commission of any indicatable offence…shall be liable to be tried, indicted, and punished as a principal offender"
• AG Reference (No 1 of 1975) [1975] QB 773: "…we approach the section on the footing that each word must be given its ordinary meaning" (per Lord Widgery)
• Actus Reus


  • Aiding - provide assistance before or at the time of the commission of the offence
  • Abetting - encourages the commission of an offence
  • Counselling - acting as an adviser, solicits or encourages before commission of the offence. Supplying information, weapon or equipment
  • Procuring - cause a crime to be committed. Eg cause or influence or threaten or command the offence.
• Withdrawal


  Is it possible to withdraw from joint criminal activity? Withdrawal must be communicated to the other parties: R v Rook [1993] WLR 1005, The communication must "serve unequivocal notice upon the other party that if he proceeds upon it he does so without further aid and assistance of those who withdraw": R v Becerra (1976) 62 Cr App R 212 (CA), In spontaneous offence of violence, the need to communicate withdrawal may be waived: Mitchell [1999] Crim LR 496 (CA), A person who starts an attack will only be able to withdraw in exceptional circumstances and must give unequivocal communication that he is withdrawing: R v Robinson [2000] EWCA Crim 8 (CA)
• Transferred Malice


  If P intends to kill / cause GBH to A but by mistake kills B = guilty of murder. Principle also applies to secondary parties: If D intentionally encourages / assists P to murder A but P mistakenly kills B = guilty of murder as an accessory. R v Gnango [2011] UK SC 9
• PAL: "a wrong turn"

  Parasitic Accessorial Liability: Where P and D participate together in one crime (crime A) and during the course of it P commits a second crime (Crime B). Principle derives from Chang Win-Sui (1985) 1 AC and confirmed in R v Powell and English (1999) 1 AC 1. For D to be liable: D must have foresight that P may commit a certain crime, D must foresee that P will have the required mens rea for that crime, The crime must occur during the course of the joint enterprise.
• R v Jogee [2016] UKSC 8 declared that the law had been wrongly interpreted by the Privy Council in Chan Wing-Siu [1985] AC 168, effectively abolishing the concept of PAL and stating that any decision should now be intention to assist or encourage P to commit GBH or murder.
• Development of the law

  • Act which encourages or assists + Intention to encourage or assist + Knowledge of relevant facts
  • Parasitic Accessorial Liability (PAL) - Chang Win-Sui (1985), R v English and Powell (1999)
  • Accessories and Abettors Act 1861
  • R v Jogee [2016] UKSC 8
• D's liability for assisting an offence will depend on proof of: Principal offence was committed (even if P cannot be identified), D's conduct assisted P in the commission of the offence, D intended that his conduct would assist P to act with the specific intent required for the offence, D intended that his act would assist P in the commission of either: (i) a type of crime, without knowing its precise details (R v Bainbridge [1960]), (ii) one of a limited range of crimes that were within D's contemplation (Maxwell v DPP for Northern Ireland), D had not withdrawn at the time of P's offence