Criminal Law - Auxiliary liability

incohate offences

incitement

it is an offence to incite another person to commit a criminal offence, intending that the principal offence be committed

• encompasses requesting or encouraging another person to commit an offence

Baxter v HM Adv 1998 JC 219

incitement - leading case

• accused charged with inciting another man to commit murder bsed on a convo between them on methods that could be used to carry out the killing and fees that could be paid 

• although there was no explicit instruction to kill  which the accused used to argue a defence 

• court held that to convict someone of inctiment the jury must be satisfied that there wasa  serious intention that the crime be committed and that is all

incohate offences

conspiracy

 basic concept of conspiracy is easy to grasp. A conspiracy is, or ought to be, simply an agreement between two or more persons to commit a crime. What makes the Scots law of conspiracy difficult to understand is the tendency towards complex indictments. These will typically state that X and Y did conspire to do a certain act or pursue a certain course of conduct, and in pursuit of that agreement did do a number of other things

Lord justice-clerk Grant HM Adv v Wilson, Latta and Rooney

conspiracy - general definition

• "A criminal conspiracy arises when two or more persons agree to render one another assistance in doing an act, whether as an end or as a means to an end, which would be criminal if done by a single individual"

• court accepted that a jury could acquit conspiracy charged but convict on crimes done in pursuance of conspiracy

Coleman v HM Adv 1999 SCCR 87

conspiracy: actions of the accused often provide evidential basis for finding that an agreement existed

• individuals had been charged with conspiring to assault another group 

• charged with equipping themselves with weapons and headed towards the house to asault 

• prior to this, the majority of the individuals had met and agreed explicitly to the crime but one of the mmebers was not there but engaged in activity en route that showed wilful participation

*Howitt v HM Adv 2000 JC 284.

conspiracy: requirement for more than one party

• 2 men charged with conspiring to set fire to a house and kill inhabitants 

• tried seperately 

• accused 1 plead guilty on condition that conspiring to murder was deleted from the charge 

• therefore accused 1 was not convicted of consipring murder 

• second accused convicted of a full conspiracy charge and as a result of this they appealed the entire conspiracy charge due to acc 1 being acquitted of murder aspect 

• appeal court decided that in deciding the appellants state the outcome of the first accused was irrelevant as each case presents and ends differently on part of juries and was a question of legal guilt not factual guilt. 

• i.e trials run their own courses and are mutually exclusive.

Criminal Procedure (Scotland) Act 1995, s 294.

attempt

• attempting to commit any criminal offence is itself an offence

attempt

confirmed by statute thought actual definition is still governed by the common law

attempts - actus reus

 the test is now usually thought to be that the accused has gone from "preparation to perpetration" - which esentially means that the accused has committed some irrevocable act to perpetrate the crime.

*HM Adv v Camerons 1911 SC (J) 110

attempts

• husband and wife who pretended that wifes necklace had been stolen to commit insurance fraud 

• accused’s had notifed police and their insurance company but had not yet filled out and submitted the claim 

• jury held that those actions amounted from moving from preparing to perpetrating in order to be convicted

HM Adv v Mackenzies 1913 SC (J) 107

attempts

• exploiting information in form of recipes 

• only liability where the accused commits an irrevocable act that puts the outcome outside of his control

Morton v Henderson 1956 JC 55

attempts

court used the formulation language itself but held that the line would not be crossed unless there had been some overt act that cannot be recalled by the perpetrator and cannot undo the consequences

Guthrie v Friel 1992 SCCR 932

attempts

• accused charged with attempting to drive car under the influence 

• found sleeping in his car in early morning with his seatbelt on and lights and engine on 

• court held on appeal that he was preparing to drive but was not attempting to drive at that moment 

• they gave guidance that an act such as disengaging the handbrake would be seen as an act of perpetrating the crime

impossibility in incohate offences

Historically, the law in this area was fraught with uncertainty. In more recent times, however, it has been made clear that impossibility is no defence to inchoate offences. 

e.g - if someone attempts to commit theft via putting their hand into the pocket of another’s jacket. however, the pocket is empty i.e nothing to steal. the question being asked is if that person is liable for an offence that theoretically couldn’t have been committed?

*Docherty v Brown 1996 SLT 325

the leading authority on “impossible attempts“

• court held it was not a defence to say that the crime would be impossible to commit. 

• as long as the accused had the necessary mens rea for the full crime, and had taken some steps towards perpetrating the crime. then they can still be charged with attempting to commit it. 

• accused had gotten a hold of tablets he thought contained class-A drugs and intended to supply them to others (possession with intent to supply)

• in reality the tablets did not contain any class-A drugs 

• court said it was still permissible to charge him. and the impossibility element was irrelevan 

• but, had the accused not thought the tablets contained drugs then it would not be permitted

• court added that unless there was a clear absurd reason why the crime could not be committed i.e completely fanciful to imagine that the crime could be committed then there would be no good reason to bring a prosecution. 

  • note this rationale is flawed. if the issue a stake is whether or not the act constitutes something dangerous such as supplying drugs but there are no illegal substances so to speak of, then how can we prosecute? 

  • argements that if the accused thinks they might bring about a prohibited result or act then they have marked themselves out to be sufficiently dangerous to merit punishment.

Maxwell and Others v HM Adv 1980 JC 40

impossible conspirary

• court said it is also not a defence to conspire impossibly(?)

• alleged conspiracy, to bribe members of a licensing board in order to get a gaming license. 

• the problem was that the decision to grant or deny the license they wanted was no longer in the hands of the licensing board they were conspiring to bribe. 

• but the court held that in these cricumstances the crime of conspiring agaisnt the board still ocurred. and that if it were the case that the circumstances the accused’s imagines were true, then they would be committing a crime. 

• court felt compelled to convict due to the idea that it was just luck that they couldn’t commit the crime

art and part liability

where a group of people share a common purpose to commit an offence, each member of the group may be liable for that offence, regardless of their individual contribution to it. This is the basic principle of art and part liability. Unlike the offences just examined, this form of liability is not inchoate in character: one cannot be liable art and part unless a principal offence is committed. Where an offence is committed, however, one is guilty art and part of the offence itself

HM Adv v Welsh and McLachlan (1897) 5 SLT 137

common purpose in art&part

• two men charged with breaking into a womans house, steling her things and murdering her 

• on the evidence that was available it wasn’t clear who had struck the fatal blow. 

  • there was also no sufficient evidence that both of the men shared a common purpose to carry out the killing 

• therefore, each man’s liability had to be considered on its own terms and because it wasn’t clear who did the killing, both had to be acquitted of the murder charge

HM Adv v Johnstone and Stewart 1926 JC 89

common purpose: art&part

• 2 women charged with acting in concert (together) to cause an abortion 

• allegedly, one woman had put a pregnant woman in touch with the other accused who carried out the operation. 

• the first accused argued that she didn't know the second accused and didn’t receive any money from connecting the two women.  and so there was no ‘acting in concert’ 

• in the absence of sufficient evidence that the 2 accused were acting in concert there was no art in part guilt.

Gay v HM Adv 2016 SCCR 87

common purpose: art&part

• no need for explicit or pre-agreed concert - allowance for what is called spontaneous concert (coming together to commit the crime as it happens)

• case of sexual assault on a young child committed by another child 

• prosecution allegation was that a third child had instructed the other to carry out this crime 

• at trial the jury had convicted the child who allegedly gave the instruction but with deletion to the reference that he gave the instruction 

  • essentially didnt feel the explicit instruction had been proved

• appeal on this decision but court said explicit agreement didn’t matter - the accused was present when the crime was commited and actively participated.

Miller v HM Adv 2022 JC 33

common purpose: art&part

• it must be proved and established what the common purpose was, the extent and how much the accused contributed

• case also said that juries must be given good guidance on this area of law due to its complexity.

art & part

contribution to the common purpose

Generally, it does not matter precisely what contribution one makes towards the common purpose. All parties are equally responsible for the intended offence, regardless of their particular contribution. However, one must make some contribution, however minimal. For example, merely being present at the scene of a crime, or turning up there, is not sufficient

HM Adv v Kerr

• art & part: contribution

• accused charged with assailt with intent to ravish (i.e rape)

• one accused was alleged to have been present when the main offenders carried out the offence and failed to interfere or phone for assistance

• court held that the accused could not be held criminally liable despite its morally horrible

Fee v HM Adv 2017 SLT 469

• art & part: contribution

• child abuse by mother and partner who were charged with murder 

• the court had confirmed that it’s necessary for each person to be charged on the basis of art and part to take active steps to facilitate a common plan and that mere knowledge of the facts is not enough to make a person liable. 

• however the act of coving up and concealing the injuries and failing to get medical assistance for one’s child was enough to constitute art and part liability

Young v HM Adv 1932 JC 63

art & part: accessory to acts

• fraudulent allocation of shares in a company 

• all of the accused’s were very close to the company however the appellant to this case was not so heavily involved or connected with the company, he essentially only distributed prospectuses about the company 

• all of the co-principals (the co-accused’s) were acquitted however the appellant was convicted and on appeal argued that this decision was perverse and unreasonable 

  • if the only people connected closely enough to the company to commit the crime were not liable how could the appellant who had almost no inclusion. 

• conviction quahsed

2 kinds of contribution to art & part

The first is where the accused is merely an accessory to acts carried out by a principal offender. The second is where the accused are all, in reality, principal offenders. This distinction may be important where the accused is charged along with others who are acquitted.

art & part

accession and dissociation

art and part guilt does not attach to contributions made after the principal offence has occurred (although such contributions may amount to another offence, e.g. attempting to defeat the ends of justice)

Similarly, one will not be liable for any offences that occur after one dissociates oneself from the common purpose. However, dissociation is no defence once the perpetration of the principal offence has begun

McLaughlan v HM Adv 1991 SLT 660

art & part: accession and dissociation

• spouses convicted of severe assault 

• husband instigated the assualt and at some point after the initial act the wife joined in the attack 

• court said that wife could only be held liable for the assault that happened after she had joined in. could not be held liable for the grievous harm made by the husband

Kabalu v HM Adv 1999 SCCR 348

art & part: accession and dissociation

• appeal on murder after joining a fatal attack near its end 

• court held that he was not liable for the death as he was not there for the extreme violence that resulted in the death of the victim. 

• court also added that one woul be liable for injuries after they join, bt also injuries they witnessed prior to them joining just not injuries they did not witness.

MacNeil v HM Adv 1986 SCCR 288

art & part: accession and dissociation

• someone can avoid liability if they remove themselves from the common purpose and try to discourage members to also stop if the discouragement would have made a difference.

  • i.e before it goes too far for words to make a difference

O'Connell v HM Adv 1987 SCCR 459

art & part: going beyond common purpose

• group had armed themselves with sticks however one found a hammer and used that to commit an assault 

• the court said that if the wepaons were broadly similar to the weapons they had agreed upon, then the rest of the group is art and part liable 

• found that sticks and hammers are the same(?)

McKinnon v HM Adv 2003 JC 29

art & part: going beyond common purpose

• forseeability test 

• assault and murder 

• members had obtained knfes to commit a robbery and during the course two victim's were stabbed and died 

• argued that the entire group had to have the mens rea for murder in order to convict 

• court disagreed on appeal and held that liability for consequences that go beyond the scope of a common purpose is predicated on whats foreseeable as liable to happen

S 293 of the Criminal Procedure (Scotland) Act 1995

 one may be convicted of any statutory offence, notwithstanding that one is only guilty of that offence art and part. But what happens where the statute apparently limits the range of persons who can be convicted of the offence, and the accused is not in that category of persons - vaughan v hma

Vaughan v HM Adv 1979 SLT 49

• incest case 

• co-accused was not related to the victim however court still held her active participation was enough to be cirminally liable for the same offence.