Parties to Crime Lecture

1.0 Introduction

It is not always just the person who carries out the actus reus of the offence who has been involved. Other people can play a part in the crime alongside this person and they too can be liable for it in law, despite not committing the crime and getting their hands dirty themselves. For example, a person hiring a hitman to carry out their undesirable activities for them will not be absolved of any liability for the crimes the hitman carries out, even though they themselves did not physically commit the offence.

In law, the different roles that people can play in the commission of an offence can be broken down as follows:

• The principal offender
• Joint principals
• Innocent agents
• Secondary parties

2.0 The principal offender

The principal offender is the person who carries out the actus reus, or in lay terms, the main perpetrator of the offence.

3.0 Joint principals

A joint principal contributes to the actus reus by committing their own independent act. For example, in a battery a joint principal would throw a punch of their own at the victim, so would be equally liable.

4.0 Innocent agents

It is possible that the principal offender will not carry out the actus reus of their chosen offence themselves, but instead utilise an innocent third party to carry out the actus reus instead. There are two distinct situations where this could arise.

1. Where the agent lacks the mens rea for the offence
2. Where the agent has a defence available to them

4.1 Where the agent lacks the mens rea for the offence

It is possible to carry out the actus reus of a crime without holding the requisite mens rea and thus no offence will be committed. This can arise in the case of innocent agents where they are tricked into carrying out the actus reus. As the agent does not appreciate the nature of what they are doing, the requisite accompanying mens rea is not present in order for it to be an offence.

Consider as an example an ex-wife who wants to kill her ex-husband. The husband has a fatal peanut allergy, so the woman gives their adult daughter a batch of peanut brownies to take over to the ex-husband’s house. As far as the daughter is aware, they are nut-free, and she gives these to the man, whereupon he eats one and is killed instantly. The daughter has no idea that the brownies contain nuts so cannot have the mens rea for the murder of the ex-husband – the intention to kill. The ex-wife, however, holds the mens rea and brought about the actus reus by using the daughter as an agent to carry out her desired act. In this scenario, the ex-wife would remain the principal offender.

4.2 Where the agent has a defence available to them

Where there is a defence available that negates liability, this will relieve the agent of responsibility for the offence. In relation to innocent agents, for example, if the agent is tricked by the principal offender, they may have the defence of mistake. Alternatively, where the innocent agent is below the criminal age of responsibility, this too would negate liability. Consider for example the above scenario where the ex-wife wants to kill her ex-husband. Adapting the facts so that the daughter is only 5 would absolve her of any liability on this basis. Now consider a different situation where a person goes hunting with another and convinces them that a dark shadow moving in the distance is a bear coming for them and tells them to shoot it. Actually, the dark shape is a person they have had an argument with and want dead. The person did not know that they were shooting at a human being, so could plead the defence of mistake.

5.0 Secondary parties

Secondary parties are more commonly described as accomplices or accessories to the crime. They are people who help or encourage the principal offender without themselves physically carrying out the actus reus. The help must be provided before or during the commission of the offence, as any help that comes after the offence has been completed (for example, providing the offender with help escaping) will not give rise to accomplice liability, although it may give rise to liability for other principal offences.

There are separate charging provisions in relation to being a secondary party to an indictable offence and to being a secondary party to a summary offence.

Indictable offences

Section 8 of the Accessories and Abettors Act 1861 provides:

Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender.

Summary offences

Section 44 of the Magistrates’ Courts Act 1980 provides:

(1) A person who aids, abets, counsels or procures the commission by another person of a summary offence shall be guilty of the like offence and may be tried (whether or not he is charged as a principal) either by a court having jurisdiction to try that other person or by a court having by virtue of his own offence jurisdiction to try him.

(2) Any offence consisting in aiding, abetting, counselling or procuring the commission of an offence triable either way (other than an offence listed in Schedule 1 to this Act) shall by virtue of this subsection be triable either way.

The effect of these provisions is that the person who aids or assists the principal offender in the commission of the offence will incur the same liability as the principal offender, as if they had committed the offence themselves.

The imposition of secondary liability is very useful to the prosecution in cases of gang crime where the question of “who did it?” is not always easy to establish. For example, in a mass attack it is not always possible to establish who in the group dealt blows to the victim, let alone who dealt the fatal blow. Under the above provisions, it is possible for all members of the group to be treated as equally liable for the offence. This has given rise to notable prosecutions over the years, including those of David Norris and Gary Dobson, who were both convicted for the racially motivated murder of Stephen Lawrence, carried out by their gang.

The extent of the involvement of each individual will be considered in sentencing, but the liability will be the same. As the secondary party shall be tried and punished as the principal offender, it is unnecessary for the prosecution to establish and distinguish whether each party involved was the principal offender or the secondary party, as long as it is definite that they were one or the other.

The two provisions set out in relation to secondary party liability are very similar, so for the purposes of understanding the principles behind them, the focus will be on the s.8 provision.

5.1 Actus reus

• An offence
• Which is aided, abetted, counselled or procured
• Causation

5.1.1 An offence

This must be a principal offence and not an inchoate offence. Provided that it can be proven that an offence was carried out, the secondary party may be charged and convicted even if the principal offender is never identified or caught. It is further possible for the conviction of a secondary party to occur in circumstances where the principal offender is acquitted due to lack of evidence or successful pleading of a defence.

There is, however, an exception to the requirement that a principal offence is committed for secondary liability to occur, and that arises in relation to procuring. Procuring means causing or instigating. In these instances, no complete offence by the principal needs to have been committed, as the would-be principal offender will lack the mens rea for the offence; but so long as the actus reus is established, secondary liability can arise.

5.1.2 Aided, abetted, counselled or procured

Section 8 of the 1861 Act provides for liability to arise in four separate instances:

1. Where an offence is aided
2. Where an offence is abetted
3. Where an offence is counselled
4. Where an offence is procured

It was previously thought that these words were interchangeable; however, Attorney General’s Reference (No 1 of 1975) clarified that they instead create four individual modes of behaviour by which this element of the actus reus may be satisfied. Any one of these elements is sufficient, and it is not necessary to show all four occurred. Each word shall be afforded its ordinary and natural meaning. The definitions have been set out for each below in order to gauge an exact understanding of the behaviour that is encompassed.

Aided: Helped in a practical way or offered support and assistance.

Abetted: Encouraged or assisted in the commission of the offence.

Counselled: Formally advised in relation to the commission of the offence.

Procured: Persuaded or caused someone to commit the offence.

Whether the defendant has behaved in a way that amounts to any one of these behaviours is a question of fact for the jury, and there is no definitive legal test established to assist. It has been established, however, in R v Gnango [2011] UKSC 59 that provoking is not the same as encouraging. If a defendant throws a punch, it might provoke their victim to throw one in return, but this will not without more amount to an encouragement to throw the punch.

Due to the absence of a Good Samaritan requirement in English law, simply spectating at a crime and failing to report it is insufficient to constitute any secondary liability.

5.1.3 Causation

A traditional causation element of the actus reus applies only to procuring. This is due to the fact that procuring means to cause, so it must be shown that the defendant did in fact, in legal terms, cause the act. In relation to the other elements, traditional causation would be impossible to prove, as the principal offender’s act will be free, deliberate and informed, which traditionally, as established in R v Kennedy [2007] 3 WLR 612, breaks any chain of causation leading from the secondary party to the ultimate offence. In these cases, there must be a link connecting the parties to the principal offence.

In relation to encouragement, the test of causation is whether the words or acts of the secondary party in encouraging must have acted on the mind of the principal offender in deciding to commit the crime. It must be shown that the principal offender was aware of the encouragement or approval of the secondary party in committing the offence. It is not necessary, however, to go as far as proving that without such encouragement the offence would not have been committed. It can be seen then that any encouragement must be communicated to the principal offender, so a text of encouragement that was never received or a shout of encouragement that was never heard would be insufficient. Where the encouragement is very remote from the time and place the principal offence is committed, the necessary link may be difficult to establish.

Any aiding, abetting, counselling or procuring must occur prior to or during the commission of the offence in order to satisfy the necessary link.

5.2 Mens rea

Once it has been established that an act took place that could give rise to secondary party liability, the accompanying mens rea needs to be shown in order for liability to be complete.

• Knowledge that the actions and circumstances constituting a criminal offence existed
• Knowledge that the acts undertaken were capable of encouraging or assisting

There is no requirement of intention to encourage or assist the principal offender; thus, the level of mens rea required is reasonably low.

5.2.1 Knowledge that actions and circumstances constituting a crime existed

This is not the same as knowledge that the specific offence existed, only knowledge of the circumstances. This can be a difficult concept to understand, so it helps to consider an example. If a person encourages another person to shoot at someone, intending to kill them, they do not need to know that this is unlawful and gives rise to the crime of murder. Knowledge that they are helping to bring about the death of another person is sufficient. Similarly, encouraging someone to have sex with someone else knowing that the person does not consent would be sufficient for secondary liability for rape. There is no need for them to know that this is a crime; knowledge that the act of sexual intercourse will take place without consent is sufficient. This is due to the fact that, as with any liability for any crime, ignorance of the law is no defence.

Mere knowledge that some kind of illegal activity might be undertaken is insufficient for the purposes of the mens rea; the defendant must have a clearer idea of the precise activity being undertaken. Consider the case of R v Bainbridge [1960] 1 QB 129, where the defendant sold cutting equipment which was later used in a bank robbery. The defendant admitted that he thought the equipment would be used for some sort of crime, possibly criminal damage, but it was held that this was insufficient, as the defendant must have more specific knowledge of the facts and circumstances existing, beyond a generic suspicion. DPP for Northern Ireland v Maxwell [1978] 3 All ER 1140 confirmed that knowledge of the specific offence was not necessary, as long as the offence committed fell within a range of offences within the defendant’s contemplation. For example, theft, robbery and burglary would all fall within one range, as would actual bodily harm, grievous bodily harm and murder.

In these types of situations, a defendant will not escape liability by practising wilful blindness – for example, by knowing the situation but neglecting to ask further questions in order to avoid obtaining knowledge.

5.2.2 Knowledge that the acts undertaken were capable of encouraging or assisting

Whilst it is not necessary to show an actual intention to encourage or assist, it is necessary that the defendant is aware that their acts are capable of encouraging or assisting the offence.

This knowledge is not the same as wanting or intending the crime to be committed. In fact, the defendant could be very much against the crime but still be liable. This was confirmed in DPP for Northern Ireland v Lynch [1975] AC 653, where the defendant was ordered by Meehan, a member of the IRA, to drive a car to some people Meehan intended to kill and then to drive away afterwards. The defendant knew that Meehan had a fearsome reputation as a violent individual, and it was made clear to him that he would come to harm if he did not comply with the instructions. At trial, the defendant argued against his murder charge on two points. Although he was found not guilty on the basis of duress, it was clarified by the Court that he would not be relieved of his secondary liability on the basis that he did not agree with the acts of the men. His knowledge of the circumstances and the fact he knew his act was assisting was sufficient.

6.0 Joint enterprise

Joint enterprise can be explained as a joint plan, where two or more people plan together to commit an offence and then go ahead and execute that plan together, committing the offence. Everyone that participates in executing the plan is liable regardless of who physically carried out the actus reus.

The Court in R v A [2010] EWCA Crim 1622 set out three situations where traditionally the existence of a joint enterprise could be found.

1. Joint enterprise between principals
2. Joint enterprise between principals and accomplices
3. Parasitic accessorial liability

6.1 Joint enterprise between principals

This is the most conceptually straightforward scenario, where two or more people jointly plan to commit a specific offence and then go ahead and commit it together. For example, a plan to commit grievous bodily harm which is executed by both defendants laying punches on their chosen victim. Whilst the joint enterprise is useful in prosecuting the defendants in these situations, it does not affect their liability in any way, as each would be separately liable for the offence since they would individually both satisfy the actus reus and mens rea.

6.2 Joint enterprise between principals and accomplices

This arises where a person aids and abets the commission of an offence by the principal offender, and they share the same common purpose in intending the crime should be committed.

6.3 Parasitic accessorial liability

This is an area of law which you may come across in older reading. It used to arise where two or more people planned to commit one offence, but one of them then went beyond the plan and committed a separate offence – for example, a jointly planned armed robbery that goes wrong and ends up with one offender killing the owner of the premises. Under the old law, this could give rise to all of the planners being liable for the unplanned offence of murder, provided they held the necessary mens rea for the parasitic liability – that is, foresight that the subsequent offence might be committed.

In the past this proved problematic for the courts. R v Gnango [2011] UKSC 59 considered the guiding principle where the offence subsequently committed was encompassed within the common purpose of the planned offence. In Gnango, the defendant had agreed to engage in a public shoot-out (an affray), which resulted in a passerby being shot and killed. The common purpose was to fire a weapon at another person, and murder was held to fall within the scope of that enterprise. However, the reasoning in Gnango has been the subject of significant academic criticism, and the doctrine of parasitic accessorial liability has since been overtaken by the Supreme Court’s decision in R v Jogee [2016] UKSC 8 (discussed below).

6.4 Mens rea

The development of the law on joint enterprise

Traditionally, the main significance of a finding of joint enterprise was to lower the mens rea required by secondary parties: knowledge was not necessary, merely foresight, thus making liability easier to impose. This was a greatly criticised principle, with prominent campaigns lobbying against ‘guilt by association.’ Where there was a finding of a joint enterprise and one of the parties committed an offence that went beyond the scope of the joint enterprise, the other parties could be liable so long as they had foresight that the offence might be committed. This, however, all changed in R v Jogee [2016] UKSC 8, which overruled R v Chan Wing-Siu [1985] AC 168 in this respect.

In handing down the judgment in Jogee, Lord Hughes and Lord Toulson (giving the joint leading judgment) confirmed that the distinction between foresight and intent is a fine one but nonetheless exists. They stated that the correct position in joint enterprise situations is that the secondary party’s foresight of what the principal offender may do is evidence from which the jury may infer a criminal intent, but is not without more proof of guilt itself. Just because a person foresees that something might occur does not mean they intend or authorise it to occur.

The effect of this ruling goes beyond adapting the mens rea for joint enterprise, as it renders parasitic accessorial liability as it was previously understood a redundant area of the law. This is due to the fact that liability in this area was based entirely on the defendant having foresight of something that might occur. As foresight alone is no longer sufficient mens rea, liability can no longer arise through this means alone.

The aftermath of Jogee: appeals against historic convictions

The decision in Jogee raised immediate questions about whether individuals convicted under the old foresight-based test could appeal against their convictions. The Court of Appeal addressed this in R v Johnson [2016] EWCA Crim 1613, holding that the change in law brought about by Jogee does not automatically render previous convictions unsafe. Where a conviction predates Jogee, an applicant must demonstrate that the conviction has produced a ‘substantial injustice’ in order for the appeal to be allowed. This is a deliberately high threshold. In R v Anwar [2016] EWCA Crim 551, the Court of Appeal confirmed that the substantial injustice test requires something more than the mere fact that the jury was directed under the old law. In practice, relatively few historic convictions have been overturned following Jogee, although the issue continues to generate academic and public debate, particularly in relation to cases involving young defendants and gang-related violence.

7.0 Charging and sentencing

Secondary liability means that the offence will be charged and sentenced as if the defendant had carried out the offence themselves, although the extent of involvement can be taken into account with regard to sentencing.

Hands-on example

This is an unusual area for you to be tested solely on in an exam under a problem-style question and will usually instead be brought up alongside another topic. It is vital that you can identify the parties and the role they play in the crime, but in order to do that you will need to complete the question alongside the wider context of a different criminal offence. To gain practice in this area, different scenarios have been set out, and the actus reus and mens rea of any relevant offences have been provided for you.

Scenario 1

Murder

Actus reus: The unlawful killing of a human being under the King’s peace

Mens rea: The intention to kill or cause grievous bodily harm

Sam is working out the back of Moonbucks, a popular coffee shop, when his ex-wife Linda comes in with her new boyfriend Jim. Sam harbours a lot of hatred towards Linda since he caught her cheating on him with another man, whereupon she ended their marriage. Sam knows that Linda suffers from a heart condition that means she is entirely intolerant to caffeine, the consumption of which could prove fatal. Sam tells Jane, a fellow barista, that the decaf machine has broken so he has put the decaf beans into the main machine. This is untrue, and subsequently the coffee that Jane pours is actually caffeinated. Linda drinks this and suffers a fatal heart attack and dies.

Identify the liability of the parties.

Jane: Innocent agent. Jane completes the act of giving Linda the deadly coffee but has no knowledge of this and does not hold the requisite mens rea of intention to kill.

Sam: Principal offender. He holds the mens rea for murder and brings about the actus reus by utilising Jane to carry out the act under a misapprehension.

Scenario 2

Theft

Actus reus: Appropriation of property belonging to another

Mens rea: Dishonesty, with an intention to permanently deprive another of the property

Alf and Phoebe really want to buy the latest Xbox but cannot afford the price tag. The security at the game shop is very strong, so the risk of taking an Xbox from the store is too high. The two of them get together and decide instead to steal money from handbags in the street. They are walking past a café together when they see two old ladies sitting in the window with their bags open and in view. They walk in and chat with the ladies, and whilst the ladies are distracted, both place a hand on one of the bags and together pick it up and remove it from the shop. Once outside they empty the bag and are delighted to find that the lady had just been to collect her pension for that week and her purse is full of cash.

Identify the liability of the parties.

Alf and Phoebe: Joint enterprise liability, as they have together planned and executed the offence of theft. Both are liable as joint principal offenders, as they both individually satisfy the actus reus and mens rea of theft.

Scenario 3

Grievous bodily harm

Actus reus: Wounds or inflicts grievous bodily harm

Mens rea: Intention to cause grievous bodily harm

N.B. Under s.18 or s.20 of the Offences Against the Person Act 1861, grievous bodily harm is an indictable offence.

James and Niall go over to Niall’s ex-girlfriend Sophie’s house. Sophie is Harry’s sister and Harry is good friends with Niall. Unbeknown to James, Niall has been to visit Harry and asked him to lend him his key for Sophie’s house as he needs to collect some things he left there before they broke up. Harry believes that Niall actually wants the key so he can steal from Sophie, but nonetheless obliges and hands it over. When they arrive at the house, Sophie will not come down to speak with them. The bedroom light is on and the boys can hear voices. James tells Niall to go inside and sort out whoever it is that has his hands on Sophie. He goes into his pocket and pulls out a knife, handing it to Niall saying “that’ll help.” Niall then bangs on the door one last time before unlocking it and going upstairs. He stabs Sophie’s boyfriend in the arm, causing severe bleeding.

Niall

• Principal offender, as he holds both the actus reus and mens rea for the offence of GBH which is committed.

James

• Indictable principal offence, so possible secondary liability under s.8 of the Accessories and Abettors Act 1861.

Actus reus

• An offence
• Which is aided, abetted, counselled or procured
• Causation

The offence of GBH or wounding occurs under s.18 of the Offences Against the Person Act 1861. This is the principal offence.

The offence is abetted by James, who encourages the commission of the grievous bodily harm.

There is a sufficient link between James’s encouragement and handing over of the knife and Niall’s decision to carry out the offence.

Mens rea

• Knowledge that the actions and circumstances constituting a criminal offence existed
• Knowledge that the acts undertaken were capable of encouraging or assisting

Discuss whether James’s lack of knowledge regarding Niall’s possession of the key affects this in any way and conclude critically. There is no right or wrong answer as long as it is argued persuasively with legal support.

• Conclude as to liability as a secondary party on the basis of whether the mens rea was held to exist.

Harry

• Indictable principal offence, so possible secondary liability under s.8 of the Accessories and Abettors Act 1861.

Actus reus

• An offence
• Which is aided, abetted, counselled or procured
• Causation

The offence of GBH or wounding under s.18 of the Offences Against the Person Act 1861 is the principal offence.

This offence is aided by Harry providing Niall with the key to the house.

Causation is established by showing a link between the provision of the key and the commission of the offence. Applying Calhaem, without providing the key Niall would not have got inside, so this is sufficient.

Mens rea

• Knowledge that the actions and circumstances constituting a criminal offence existed
• Knowledge that the acts undertaken were capable of encouraging or assisting

Applying Bainbridge, Harry does not have knowledge of the specific circumstances. Applying DPP for Northern Ireland v Maxwell, GBH and burglary are not within the same range of offences, so this element of the mens rea is not satisfied.

• Accordingly, there is no mens rea, so no secondary liability arises in relation to Harry’s actions.

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