Parties to crime

What are the 5 roles?

1. co principals

2. principal and accessory

3. what if P is aquited?

4. what of D2 procedures an innocent agent? A or P?

5. what happens when the roles are not clear and cannot be easily attributed to D1 and D2?

What are co principals?

two or more people jointly and intentionally committing the AR of an offence each as a principal

what is the legal basis for accessorial liability?

accessories and abettors act 1861, s8

• aiding

• abetting

• counselling

• procuring

= same liability as principal

what must be shown for accessory liability?

• AR : one or more of aid/abet/counsel/procure

• MR: intent to assist or encourage the commission of the offence

What happens if D1 is an innocent agent (No MR)?

D2 becomes the principal if they cause D1 to commit AR unknowingly

eg Kyle poisons V via Valeria

can an accessory be liable if the principal is acquitted?

not if P didnt commit the AR

case: Morris v Tolmon 1923

Thorton v Mitchell 1940

can D2 be guilty if its unclear who actually did the AR?

Yes if evidence shows D2 participated as either P or A

Cases: Giannetto 1997

Lane 1986

Banfield 2013

What is the now rejected ‘joint enterprise’ doctrine

D could be liable for an offene committed by P if D foresaw P might commit it

abolished by Jogee 2016

What is the current test for complicity post Jogee 2016?

D must intend to assist or encourage P in the commission of the crime - mere foresight is not enough

What counts as participation (AR) in complicity

• Assisting

• encouraging

• advising/counselling

• procuring

Does presence alone count as participation

No

it must be voluntary and must contribute to P’s actions

Cases: Clarkson 1971

Kousar 2009

Coney 1882

Can omission be complicity?

Only if D had a duty to act or control over P

cases: Russell 1993, Du Cros v Lambourne

is contact between A and P required for liability?

• not for procuring

• usually yes for aiding, abetting, counselling

Is causation required between A’s act and P’s crime?

Counselling: NO, casual link needed (Calhaem 1985)

Procuring, YES must cause offence (AG’s ref 1 of 1975)

Aiding; P must derive encouragement not causation

What are elements of complicity?

1. participation (AR)

2. Knowledge of P’s crime (MR)

3. Intention to assist or encourage (MR)

4. No defence

What does Jogee (2016) say about presence/association

‘Neither presence nor association proves complicity - depends on the factual encouragement or assistance

What did the 2023 bill propose for joint enterprise?

amendment to s8 of the 1861 Act to require a ‘significant contribution’ for accessory liablity

What is a key social concern about joint enterprise?

• minority defendants disproportionately labelled as accessories'

• eg 80% of ethnic minority prisoners are convicted as A’s

What are the two key elements of mens rea for complicity?

1. knowledge of the essential facts that makes P’s act criminal

2. intention to participate in the offence

what level of knowledge must A have to be liable?

A must know the essential circumstances not necessarily all details

Case: DPP for NI v Maxwell 1978)

What is the test for knowledge in complicity?

it is subjective; based on what A actually knew not what a reasonable person would have known

Must A know the exact offence that P will commit?

No - A may know the particular offence (Bainbridge 1960) or the range of possible offences (Maxwell 1978, confirmed in Jogee 2016

What is requiews doe A’s intention regarding their own conduct?

• A’s participation must be voluntary (not accidental)

• A must intend to assist/encourage the offence

• Case: Bryce (2004)

Can A intend assistance even if they hope P wont commit the offence?

Yes, if A knows their action may help P, they still intend it

Case: National Coal Board V Gamble 1959

Does A need to intend every element of P’s offence?

No - only to procure the offence itself, not all elements (eg getting P drunk and intention for P to drive)

What was the key chnage made by Jogee 2016 regarding intention?

recklessness/foresight is no longer sufficient; intention is now required

is foresight of P’s offence still relevant after Jogee?

Yes - not sufficient alone, but can be evidence of intention

What is conditional intention in complicity?

where A intends the offence only if certain conditions arise - controversial but likely treated as direct intention

Can A be liable when V is not the intended victim?

Yes through transferred malice (Gnango 2011)

What happens if P commits a lesser offence than A intended?

A is only liable for what they intended to encourage not for a more serious or lesser AR unless A’s MR supports it

What if P commits a more serious offence than A intended?

• A is usually not liable for P’s more serious act

• exception : if P commits constructive murder, A may still be liable (confirmed in Jogee 2016)

What if P commits a completely different offence than A intended>

A is not liable if P’s offence is an intentional and significant deviation = overwhelming supervening act

Cases; English 1999, Mendez 2010

When might A still be liable despite a deviation by P?

if A intended P to use any available weapon, liability may remain (Jogee 2016)

What are the two conditions for successful withdrawal by A?

1. Withdraw before the offence is committed

2. clearly communicate withdrawal to P (unless offence was spontaneous)

Can withdrawal be implied or must it be expressed?

in planned offences; communication required (Becerra 1975)

in spontaneous offences; may not be required (O’Flaherty 2004, Mitchell 2008)

Does A remian liable for actions before withdrawal?

Yes - A remains liable for any offence committed prior to withdrawal

What arre the four summary elements of complicity liability?

1. participation (assist/encourage)

2. knowledge of essential criminal facts

3. intention to assist/encourage

4. no valid defence (inc withdrawl)