Secondary Participation in Criminal Law

  • Criminal Law Act 1997

    • Definition of Secondary Participation:

    • A person is considered a secondary participant in a crime if they aid, abet, counsel, or procure the commission of that offence.

    • The secondary participant is treated as a principal offender.

Aiding and Abetting

  • Essential Elements:

    • To constitute aiding and abetting, the secondary participant typically must be present at the scene of the crime.

    • Exception:

    • Referencing Gillick (1985):

      • A doctor who prescribed the contraceptive pill to an underage girl was deemed to be aiding and abetting underage sex, indicating presence is not always required.

Counselling

  • Definition:

    • Counselling entails providing help or advice generally prior to the commission of the offence.

    • Legal Standards:

    • No causal link is required between the assistance provided and the offence committed.

    • Calhaem (1985):

      • The Court of Appeal provided a general definition of counselling as meaning to advise, solicit, or something akin to that.

    • Only needs to demonstrate that the offender acted within the scope of the advice given.

Procuring

  • Definition and Requirements:

    • Procuring involves taking action to bring about a desired outcome; passive desire is not sufficient.

    • No formal agreement between parties is necessary.

    • Attorney General’s Ref 1 (1975):

    • The principal offender may remain unaware of the procurer's involvement.

When is Secondary Liability Imposed?

  • Criteria for Imposition:

    • An offence must have actually been committed.

    • Referencing Thornton v Mitchell (1940):

      • Page reference is p 116.

    • Charges for secondary complicity may be pursued even if the principal offender is unknown or acquitted.

    • Referencing R v Bourne (1952), R v Cogan and Leak (1975).

    • If the principal offender acts under duress, they are referred to as the innocent agent, as seen in R v Stringer (1991), p 117.

Actus Reus

  • Defining Criteria:

    • Some action must be proven for secondary participation, though minimal assistance can be sufficient.

    • R v Brown (1968):

      • A simple cough was deemed sufficient (p 117).

    • R v Gianetto (1996):

      • Any form of encouragement or greater support would suffice.

  • General Principles:

    • Typically, mere failure to act does not constitute actus reus for secondary participation.

    • R v Clarkson (1971):

      • Mere presence at the crime scene was insufficient; intent to encourage would need to be shown.

  • Exceptions:

    • Failure to act can constitute actus reus where there is a duty to act.

    • Tuck v Robson (1970):

      • A pub owner allowing a customer to continue drinking after hours was found to be aiding and abetting the breach of licensing laws.

    • R v Dytham (1979):

      • Failure to assist a man being beaten to death was scrutinized as actus reus.

Mens Rea

  • Intent Requirement:

    • It must be shown that the assistance given was intended.

    • Referencing Ryan (1996), page 119.

    • R v Rook (1993):

      • If a secondary participant withdraws from involvement, they must give timely notice unless it is impractical to do so (p119).

Knowledge Requirements for Secondary Participants

  • Understanding of the Crime:

    • In Maxwell (1978), it is highlighted that the secondary participant must be aware of the crime.

    • In Madden (1977), a clearer stipulation is made that participants must know what the actual crime was or be aware that a crime of a similar nature was intended.

    • Case Example:

    • In Egan (1989), the defendant was informed of a planned 'small stroke' and argued that he was unaware it would entail an armed robbery; the court ruled it was sufficient he understood a robbery was in play.

Incidental Offences

  • Legal Considerations:

    • Secondary participants can be convicted of offences that are incidental to the main offence.

    • The secondary participant must have contemplated the incidental offence.

    • R v Powell (1997):

      • It was determined that the secondary participant must have foreseen the incidental offence, with no need for explicit agreement.

Doctrine of Common Design

  • Definition:

    • Refers to a situation where a group acts in concert to achieve an unlawful common goal.

    • Liability extends to each member for the actions of other members pursuing the common goal.

    • R v Steward and Schofield (1995):

      • All participants are viewed as principals.

  • Case Illustrations:

    • DPP v Rose (2002):

    • A woman was found part of a joint enterprise, rendered equally culpable as a principal under S 7 of the Criminal Law Act 1997.

    • DPP v Doohan (2002):

    • The defendant's hiring of a man for assault (which resulted in a fatal shooting instead) exemplified common design liability.

  • Joint Enterprise Liability:

    • R v Anderson and Morris (1966):

    • In joint enterprises, all are liable for acts done in furtherance of the enterprise, including unusual consequences; if someone exceeds tacit agreements, others are not liable.

  • Criteria for Satisfactory Evidence:

    • The participants must act in concert to achieve a shared unlawful goal.

    • R v Uddin (1998):

      • Highlighted spontaneous group attacks as joint enterprise actions but emphasized the normal necessity for some planning.

  • Jury Considerations:

    • The jury must answer whether a joint enterprise exists, clarifying tacit agreements (e.g. in Doohan, agreement on assault but a gun unexpectedly was used).

  • Knowledge of Events:

    • A defendant must possess knowledge of intended actions to be considered part of a common design.

    • DPP v Pringle (1981):

      • Knowledge of potential armed resistance during a robbery elicited liability for firearm usage by co-defendants (p126).

    • All are accountable for acts incidental to the common design.