Secondary parties and Inchoates

Can a defendant be criminally liable without personally performing the offence’s actus reus?

Yes. Liability may extend to principal offenders, secondary parties and participants in a joint enterprise.

What does the law of parties to a crime seek to capture?

People who commit, assist, encourage or participate collectively in an offence.

What are the three main categories of parties to a crime?

Principal offenders, secondary parties or accessories, and joint-enterprise participants.

Who is a principal offender?

The person who commits the actus reus of the offence with the required mens rea.

Can an offence have more than one principal offender?

Yes. More than one person may personally commit the actus reus with the required mens rea.

What is an innocent agent in criminal law?

A person who physically performs the actus reus but lacks the mens rea, while another person uses them to commit the offence.

Can a person be a principal where an innocent agent physically performs the actus reus?

Yes. The person directing the innocent agent may be treated as the principal offender.

What mental state must an innocent agent lack?

The mens rea required for the offence.

What did R v Michael establish about innocent agents?

R v Michael held that a woman who gave poison to a child to administer was the principal, while the child was an innocent agent.

What did R v Stringer and Banks establish about innocent agents?

R v Stringer and Banks held that an employer was the principal where employees unknowingly carried out a fraud on the employer’s instructions.

Who is a secondary party or accessory?

A person who becomes liable through participation in an offence committed by the principal.

What statutory provision governs liability for aiding, abetting, counselling or procuring an offence?

Section 8 of the Accessories and Abettors Act 1861.

What does section 8 of the Accessories and Abettors Act 1861 provide?

A person who aids, abets, counsels or procures an offence may be tried and punished as a principal offender.

What did R v Jogee establish about the different forms of secondary liability?

R v Jogee held that the same general principles govern aiding, abetting, counselling, procuring and joint enterprise.

Which forms of secondary participation fall under the general umbrella of assisting or encouraging?

Aiding, abetting and counselling.

Why is procuring distinct from other forms of secondary participation?

Procuring requires a causal link between the accessory’s conduct and the principal offence.

Which case confirms that procuring requires causation?

Attorney General’s Reference (No 1 of 1975).

What are the five ways in which the actus reus of secondary liability may arise?

Aiding, abetting, counselling, procuring or participating in a joint enterprise.

What does it mean to aid an offence?

To give help, support or assistance to the principal in carrying out the offence.

What are examples of aiding an offence?

Providing tools or materials, supplying useful information or physically assisting the principal.

What did Thambiah v R establish about aiding?

Thambiah v R held that supplying materials or tools before the offence may amount to aiding.

Must assistance be physical to amount to aiding?

No. Information or other practical support may suffice.

What did Attorney General v Able establish about aiding through information?

Attorney General v Able held that giving information which helps the principal commit the offence can amount to aiding.

What did R v Clarkson establish about direct physical assistance?

R v Clarkson recognised that holding down a victim during an assault can amount to aiding.

Can assistance given well before the principal offence amount to aiding?

Yes.

What did R v Bryce establish about the timing of assistance?

R v Bryce held that driving the principal near the victim’s home could amount to aiding despite a 12-hour delay before the murder.

Must the principal have finally decided to commit the offence when the assistance is provided?

No. Assistance may amount to aiding even if the principal has not yet fully resolved to offend.

Must the accessory’s assistance be indispensable to the principal offence?

No. There is no “but for” causation requirement for aiding.

Must the principal know that the accessory is helping them?

No. Consensus or awareness by the principal is not required for aiding.

Can an accessory aid an offence even where the principal did not request or recognise the help?

Yes.

What is an accessory before the fact?

A person who assists the principal before the offence is committed.

Under which form of secondary liability does an accessory before the fact now fall?

Aiding.

Does the category of accessory after the fact still exist?

No. It has been abolished.

What offence may now apply to someone who helps an offender after the crime?

Assisting an offender under section 4 of the Criminal Law Act 1967.

What does it mean to abet an offence?

To incite, instigate or encourage the offence, usually at the time it is committed.

How did Devlin J distinguish abetting from counselling in NCB v Gamble?

He suggested that abetting usually means encouragement at the time of the offence, while counselling occurs beforehand.

Does abetting require proof that the encouragement caused the offence?

No.

Must encouragement be communicated to the principal for abetting?

Yes.

Must the principal know that they are being encouraged for abetting liability?

Yes.

How much encouragement is required for abetting?

Even minimal encouragement may be sufficient.

What did R v Giannetto establish about minimal encouragement?

R v Giannetto stated that a nod, pat on the back or words such as “oh goody” could amount to encouragement.

Is mere presence at the scene of a crime automatically enough for abetting?

No.

What did R v Coney establish about presence at an offence?

R v Coney held that mere presence at an illegal prize fight was not necessarily sufficient for secondary liability.

When may presence at the scene amount to abetting?

Where it is intended and understood as support or encouragement.

What did Wilcox v Jeffrey establish about presence as encouragement?

Wilcox v Jeffrey held that a journalist’s attendance at and review of an unlawful performance amounted to encouragement.

Why did the journalist’s presence amount to abetting in Wilcox v Jeffrey?

His attendance and later review demonstrated intended support for the unlawful performance.

Can a failure to prevent an offence amount to abetting?

Yes, where the defendant has a right or duty to control the principal and deliberately fails to act.

What did R v Russell establish about abetting by omission?

R v Russell held a husband liable where he stood by while his wife drowned their children.

Why was the husband liable in R v Russell?

His deliberate failure to intervene could be treated as encouragement or authorisation of the offence.

What did Tuck v Robson establish about a person in control of premises?

Tuck v Robson held a pub licensee liable for knowingly allowing customers to drink after hours.

What did Du Cros v Lambourne establish about control over another’s conduct?

Du Cros v Lambourne recognised that a vehicle owner may be liable for allowing dangerous driving in their presence.

What did R v J F Alford Transport Ltd establish about passive acquiescence?

R v J F Alford Transport Ltd held that passive acquiescence by those in control may amount to secondary participation.

Must a defendant be physically present to abet by deliberate inaction?

No.

What must the prosecution prove where silence or inaction is alleged to encourage an offence?

That the defendant had control and knew their silence or acquiescence would encourage the offence.

What does it mean to counsel an offence?

To give advice or encouragement before the offence is committed.

Does counselling require proof that the advice caused the offence?

No.

What did R v Calhaem establish about counselling?

R v Calhaem held that the defendant may be liable even if the offence would have been committed without the counselling.

What contact is required for counselling liability?

There must be communication or contact between the accessory and the principal.

What connection must exist between counselling and the offence?

The offence committed must be connected to and fall within the scope of the advice or encouragement.

Must the principal know of the counselling?

Yes. Consensus is required.

Must the offence actually committed fall within the scope of the counselling?

Yes.

What did R v Jogee confirm about the effect of counselling or encouragement?

Once assistance or encouragement is proved, the prosecution need not show that it changed the principal’s behaviour.

Can counselling create liability even where the principal ignores the encouragement?

Yes, provided the required assistance or encouragement and mens rea are proved.

What does it mean to procure an offence?

To produce the offence by endeavour, meaning to cause it to occur.

What element distinguishes procuring from aiding, abetting and counselling?

A causal link between the defendant’s conduct and the principal offence.

Does procuring require agreement or consensus with the principal?

No.

Must the principal know of the accessory’s role for procuring liability?

No.

Can an offence be procured without the principal’s knowledge or consent?

Yes.

What did Attorney General’s Reference (No 1 of 1975) establish about procuring?

The defendant procured drink-driving by secretly adding alcohol to the principal’s drink.

Why was the defendant liable in Attorney General’s Reference (No 1 of 1975)?

Their conduct caused the principal to commit the offence, even though the principal did not know of it.

Is foresight that an offence may occur enough to amount to procuring?

No. The defendant must endeavour to bring the offence about.

What did Beatty v Gillibanks establish about procurement?

Beatty v Gillibanks held that organising a meeting while foreseeing possible violence did not amount to procuring that violence.

Why was there no procurement in Beatty v Gillibanks?

The organisers were not trying to cause the violence.

What is a joint enterprise?

A shared criminal venture in which two or more people commit crime A together and one commits crime B in the course of or incidental to crime A.

How did Lord Phillips describe joint enterprise in R v Gnango?

D1 and D2 share an intention to commit crime A, and D1 commits crime B while carrying out crime A.

Must D2 separately aid or encourage crime B in a joint enterprise?

No.

What must be proved for D2 to be liable for crime B in a joint enterprise?

D2 must be a party to crime A and possess the mens rea required for accessory liability for crime B.

What connection must crime B have with crime A?

Crime B must be committed in the course of or incidentally to crime A.

Can a defendant be liable for offences committed before they joined a joint enterprise?

No.

When might a burglar be liable for a murder committed by a co-burglar?

Where the murder occurs during the burglary and the defendant had the necessary intent to assist or encourage the relevant violence.

Is a co-offender liable for an unrelated offence committed after the joint crime has ended?

No, where the later offence is outside the agreed enterprise.

What is the first mens rea element for secondary liability under R v Jogee?

Intention to perform the act of assistance or encouragement and intention that it assist or encourage the offence.

What must be intended where a defendant gives a weapon to the principal?

The defendant must intend to give the weapon and intend that it be used to commit a crime.

Does intention to assist require the defendant to desire the offence?

No.

What did Lynch v DPP for Northern Ireland establish about intention and desire?

Lynch v DPP for Northern Ireland held that intention does not require desire and may include oblique intention.

What happened in Lynch v DPP for Northern Ireland?

Lynch drove IRA members to a police officer’s home under threat while knowing they intended murder.

Can a defendant intend to assist a crime while being indifferent about whether it occurs?

Yes.

What example did R v Jogee give of intention without desire?

A defendant may supply a weapon intending to give the principal the means to offend even if indifferent to whether the offence is committed.

What is the second mens rea element for secondary liability under R v Jogee?

The defendant must intend that the principal commit the actus reus with the mens rea required for the principal offence.

Is conditional intention sufficient for secondary liability?

Yes.

What example of conditional intention was given in R v Jogee?

A defendant who supplies a weapon for burglary intending that serious harm be caused if resistance occurs may be liable when it is used that way.

Can conditional intention apply in a joint enterprise?

Yes. A participant may intend that a co-offender use serious violence if resistance occurs.

Is mere foresight that the principal might commit crime B enough for accessory liability?

No.

What is the status of foresight after R v Jogee?

Foresight is evidence from which intent may be inferred, but it is not itself the legal test.

What is the core mens rea principle from R v Jogee?

Intent, not mere foresight, is required.

Must an accessory intend death to be liable for murder?

No. Intention that the principal cause really serious harm may be sufficient because that mens rea is enough for murder.

Can accessory liability apply where the principal offence’s mens rea does not correspond exactly with its actus reus?

Yes.

Which offences were noted as other possible examples where mens rea and actus reus do not align neatly?

Sections 47 and 20 of the Offences Against the Person Act 1861.

What is the third mens rea element for secondary liability?

Knowledge of the essential circumstances that make the principal’s conduct criminal.

What must an accessory know where the offence involves stolen goods?

That the goods are stolen.