Cases on participation | Participation Cases

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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

A) LIABILITY

R v Calhaem [1985] 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) [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 [1988] 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 [1971] 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 [1959] 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 [1960] 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 [1991] 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 [1954] 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 [1966] 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 [1994] 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 [1988] 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 [1985] 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 [1977] 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

the jury.

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 [1976] 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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