Published: Wed, 07 Mar 2018
CASES ON PARTICIPATION
1. MODES OF PARTICIPATION
R v Butt (1884) 51 LT 607.
The defendant had deliberately given false information to the book-keeper of
the company for which he worked, knowing that it would be entered into the
accounts. As the book-keeper had innocently entered the wrong information, the
defendant was convicted as the principal on a charge of falsifying the accounts.
2. SECONDARY PARTIES
R v Calhaem  QB 808.
The defendant had hired a man named Zajac to kill a woman. Z testified that
after being paid by the defendant he had decided not to carry out the killing,
but instead to visit the victim’s house, carrying an unloaded shotgun and a
hammer, to act out a charade that would give the appearance that he had tried to
kill her. He claimed that when he had stepped inside the front door of the
victim’s house, she had screamed and he panicked, hitting her several times with
the hammer. The defendant appealed, submitting that, on Z’s evidence there was
no causal connection, or no substantial causal connection.
The Court of Appeal affirmed the defendant’s conviction. It was held that the
offence of counselling a person to commit an offence is made out if it is proved
that there was a counselling, that the principal offence was committed by the
person counselled and that the person counselled was acting within the scope of
his authority and not accidentally when his mind did not go with his actions. It
is not necessary to show that the counselling was a substantial cause of the
commission of the offence.
Attorney-General’s Reference (No1 of 1975)  QB 773.
The accused had laced a friend’s drinks with alcohol knowing the friend would
shortly afterwards be driving home. The friend was convicted of drunken driving.
The accused was charged as an accomplice to this offence, but was acquitted
following a successful submission of no case to answer. The trial judge had
taken the view that there had to be evidence of some agreement between the
accomplice and the principal.
Lord Widgery CJ held that the offence had been procured because, unknown to
the driver and without his collaboration, he had been put in a position in which
he had committed an offence which he never would have committed otherwise. There
was a case to answer and the trial judge should have directed the jury that an
offence is committed if it is shown beyond reasonable doubt that the accused
knew that his friend was going to drive, and also knew that the ordinary and
natural result of the added alcohol would be to bring the friend above the
prescribed blood/alcohol limit.
B) PRESENCE AT THE SCENE OF THE CRIME
R v Coney (1882) 8 QBD 534.
The two defendants were present at an illegal bare fists prize fight. It did
not appear that the defendants took any active part in the management of the
fight, or that they said or did anything. It was held to be a misdirection to
tell a jury that mere presence at an illegal prize fight was sufficient for
there to be a conviction of the defendant for abetting the illegal fight. It is
simply one factor for a jury to take into account.
R v Bland  Crim LR 41.
The defendant lived with her co-accused, R, in one room of a shared house. R
was guilty of possession of drugs. The defendant was also charged with
possession of a controlled drug because she was living with R. The Court of
Appeal quashed her conviction and held that there was no evidence of assistance,
active or passive. The fact that she and R lived together in the same room was
not sufficient evidence from which the jury could draw such an inference.
Assistance, though passive, required more than mere knowledge. For example, it
required evidence of encouragement or of some element of control, which was
entirely lacking in the case.
R v Clarkson  1 WLR 1402.
Two soldiers (the defendants) had entered a room following the noise from a
disturbance therein. They found some other soldiers raping a woman, and remained
on the scene to watch what was happening. They were convicted of abetting the
rapes and successfully appealed on the basis that their mere presence alone
could not have been sufficient for liability.
It was held that the jury should have been directed that there could only be
a conviction if (a) the presence of the defendant at the scene of the crime
actually encouraged its commission, and (b) the accused had intended their
presence to offer such encouragement.
C) PARTICIPATION BY INACTIVITY
D) MENS REA OF SECONDARY PARTIES
NCB v Gamble  1 QB 11.
A lorry driver had filled his lorry with coal at an NCB yard. The weighbridge
operator noticed that the lorry was overloaded and informed the driver. The
driver said he would take the risk and the operator gave him a weighbridge
ticket. The driver was found guilty of using an overloaded lorry on the highway.
The ownership in the coal did not pass until the ticket was handed over and,
therefore, the driver could not properly have left the yard without it. It was
held that the NCB (as employers of the operator) were liable as accomplices. The
operator knew he had a right to prevent the lorry leaving with the coal. It was
enough that a positive act of assistance had been voluntarily done with
knowledge of the circumstances constituting the offence.
R v Bainbridge  1 QB 129.
The defendant had supplied some cutting equipment which was subsequently used
to break into the Midland Bank in Stoke Newington. He claimed that he had
thought the equipment might be used for some illegal purpose, such as breaking
up stolen property, but that he had not known that it was to be used to break
into a bank. The defendant appealed unsuccessfully against his conviction for
being an accomplice to the break-in.
The Court of Appeal held that it was essential to prove that the defendant
knew the type of crime that was going to be committed. It was not necessary to
show knowledge of the particular date and premises concerned. Lord Parker CJ
said that it was not enough that he knew that some kind of illegality was
contemplated; but that, if he knew breaking and entering and stealing was
intended, it was not necessary to prove that he knew that the Midland Bank,
Stoke Newington, was going to be broken into.
Blakely and Sutton v DPP  Crim LR 763.
B was having an affair with T. At a pub, T told B that he intended to go home
to his wife. B discussed this with S, who suggested that if they added alcohol
to T’s tonic water, T would not drink and drive. B & S intended to tell him
before he left to drive home so that he would not go home. Unfortunately, T (the
principal) left before they could tell him and was subsequently found to be over
the limit when breathalysed. The defendants’ evidence ensured that the principal
was given an absolute discharge to the charge of drink-driving.
B & S were subsequently convicted of procuring that offence after the
magistrates decided that they had been reckless (within the meaning of
Caldwell). The Court of Appeal quashed their convictions and held that objective
recklessness was not enough for liability. The court expressed the opinion that
only intention should suffice.
3. PARTICIPATION PUSUANT TO A JOINT ENTERPRISE
A) ACCIDENTAL DEPARTURE FROM THE COMMON DESIGN
R v Baldessare (1930) 22 Cr App R 70.
Two defendants stole a car to go joyriding. The car was driven recklessly,
the brakes were violently applied and the head-lights were not lighted. The
driver killed another road user and was convicted of his manslaughter. The
passenger, B, was convicted as an accomplice to the manslaughter. Lord Hewart CJ
stated that the defendant and the driver were responsible for the way in which
the car was being driven at the moment of collision.
B) DELIBERATE DEPARTURE FROM THE COMMON DESIGN
Davies v DPP  AC 378.
Two gangs of boys had a fight, during which the principal offender (Davies)
had killed an opponent with a knife. The defendant was convicted of murder.
Lawson, an accomplice was acquitted of being an accomplice to either murder or
manslaughter because there was no evidence that L knew that any of his
companions had a knife.
Note: Had the victim died from blows to the head from the principal’s fist or
boot, then D could have been guilty as an accomplice to manslaughter, because
such a mode of attack was contemplated by him, and the death of the victim would
have been an unforeseen consequence of its being carried out.
R v Anderson and Morris  2 QB 110.
M had a fight on the street with W (the victim) because W had just tried to
strangle Mrs A. When A arrived and learnt what had happened, he went with M in a
car to find W. When W was found, there was a fight in the street. A was seen
punching W, with M standing behind A, apparently not taking any definite part in
the fight. A then stabbed W to death. M denied knowing that A had a knife. M was
convicted of manslaughter and appealed.
It was held by the Court of Appeal that where two persons embark on a joint
enterprise, each is liable criminally for acts done in pursuance of the joint
enterprise, including unusual consequences; but if one of them goes beyond what
has been tacitly agreed as part of the joint enterprise, the other is not liable
for the consequence of the unauthorised act. M’s conviction was quashed.
Note: The use of the knife was not agreed upon. However, if W had died from a
punch thrown by A, M would have been an accomplice to manslaughter.
R v Mahmood  Crim LR 368.
The defendant was a passenger in a car that had been unlawfully taken and was
being driven recklessly in a police chase. The defendant and the driver jumped
out of the car, leaving it in gear. The car mounted a pavement and killed a baby
in a pram. It was held that if the death had occurred while they were still in
the car, the defendant could have been liable for manslaughter because what had
occurred would have resulted from a common unlawful enterprise which had
culminated in unforeseen consequences. However, there was insufficient evidence
“that he contemplated the second type of reckless driving, namely the
abandonment” and accordingly there could be no liability for manslaughter.
Question: Was this decision correct?
R v Dunbar  Crim LR 693.
Two men killed a woman and were convicted of murder. The defendant was
charged with counselling the offence and convicted of manslaughter. The
defendant appealed. She admitted that she may have expressed a wish to see the
victim dead, but she had been drinking and taking drugs. She suspected that her
co-defendants planned to burgle the victim’s flat and that some violence might
be done to the victim, but she did not contemplate the possibility of any
serious harm being inflicted.
The Court of Appeal quashed her conviction because of a misdirection by the
trial judge. If she was a party to an agreement to kill, she was guilty of
murder. If she was a party to an agreement to inflict some harm, short of g.b.h,
then she would not be guilty of murder or manslaughter, because the killing
could not be within the ambit of the agreement.
C) ACCOMPLICES TO MURDER
Chan Wing-Siu v R  AC 168.
The appellants were members of a gang who had gone to the victim’s house to
commit a robbery, arming themselves with knives. During the robbery the victim
was stabbed to death by a member of the gang and the defendants were convicted
as accomplices to the murder.
The Privy Council dismissed their appeals. It was held that for an accomplice
to be guilty of murder it was sufficient for the prosecution to establish that
he foresaw death or grievous bodily harm as a possible incident of the common
design being carried out. On the other hand, if it was not even contemplated by
the accomplice that serious bodily harm would be intentionally inflicted, he is
not a party to murder.
D) REPENTANCE OF SECONDARY PARTIES
R v Becerra and Cooper (1975) 62 Cr App R 212.
The defendants agreed to burgle a house, and B gave C a knife to use in case
there was any trouble. When they were disturbed by one of the tenants, B jumped
out of the window and ran off, shouting “There’s a bloke coming. Let’s
go.” C remained behind and murdered the tenant. B was convicted as an
accomplice to the murder despite his contentions that he had withdrawn from the
enterprise. In dismissing B’s appeal against conviction, Roskill LJ stated the
law as follows:
After a crime has been committed and before an abandonment of the common
enterprise can be established there must be something more than a mere mental
change of intention and physical change of place by those associates who wish to
dissociate themselves from the consequences. What must be done to break the
chain of responsibility will depend upon the circumstances of each case.
Where practicable and reasonable there must be timely communication of the
intention to abandon the common purpose from those who wish to dissociate
themselves from the contemplated crime to those who desire to continue in it.
“Timely communication” ought to be such communication, verbal or
otherwise, that will serve unequivocal notice upon the other party to the common
unlawful cause that if he proceeds upon it he does so without the further aid
and assistance of those who withdraw.
In the present case, the knife having been contemplated for use when it
was handed over by B to C, if B wanted to withdraw at that stage he would have
to “repent” in some manner vastly different and vastly more effective
than merely to say “Come on, let’s go” and go out through the window.
R v Grundy  Crim LR 543.
The defendant had supplied a burglar with information about the premises, the
habits of the owner and other useful matters. However, for two weeks before the
burglar did so, the defendant had been trying to stop him breaking in. It was
held that, following Becerra, the defence of withdrawal should have been left to
R v Whitefield (1984) 79 Cr App R 36.
Two people burgled a flat while the occupier was away. The defendant, who
lived next door, admitted telling the principal offender that the flat would be
empty. He also admitted that he had agreed to carry out the burglary with the
principal, but that he had later changed his mind. W was present in his flat the
night the burglary was committed. He heard the flat being broken into but did
nothing to prevent the offence. At his trial for burglary, W unsuccessfully
submitted that he had withdrawn from the common enterprise to burgle the
adjoining flat (by informing the principal that he did not wish to take part in
it, and by refusing to allow him access to his flat and balcony for the purpose
of effecting entry to his neighbour’s flat).
The Court of Appeal quashed the conviction. There was evidence that W had
served unequivocal notice on the principal that, if he proceeded with the
burglary they had planned together, he would do so without W’s aid or
assistance. The jury should have been told that, if they accepted the evidence,
that was a defence.
4. ACQUITTAL OF THE PRINCIPAL OFFENDER
R v Bourne (1952) 36 Cr App R 1251.
The defendant had terrorised his wife into committing buggery with a dog. He
was convicted of aiding and abetting his wife to commit buggery with a dog. Lord
Goddard CJ stated that if the woman had been charged herself with committing the
offence, she could have pleaded duress, which would have shown that she had no
mens rea. However, if an act of buggery is committed, the crime is committed.
The evidence was that the defendant had caused his wife to have connection with
a dog and was therefore guilty.
R v Cogan and Leak  QB 217.
L persuaded C to have sexual intercourse with Mrs L, telling him that she
liked being forced to have sex against her will, and that if she struggled it
was merely evidence of her enjoyment. C was convicted of rape but appealed
successfully against his conviction on the basis that he had honestly thought
she was consenting to sexual intercourse. L appealed against his conviction for
aiding and abetting the rape, on the basis that if the principal had been
acquitted, there was no offence to which he could have been an accomplice.
In dismissing the appeal, the Court of Appeal held that the actus reus of
rape had been committed by C in that Mrs L had been forced to submit to sexual
intercourse without her consent. L had known that she was not consenting, and
thus had the necessary mens rea to be an accomplice. Alternatively, the court
was willing to view C as an innocent agent through whom L had committed the
offence of rape.
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