9.2 Parties to Crime Lecture
It is not always just the person that carries out the actus reus of the offence that 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.
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.
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.
- Where the agent lacks the mens rea for the offence
- 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 instance of innocent agents where they are tricked into carrying out the actus reus.
4.2 Where the agent has a defence available to them
Where there is a defence available that negates the actus reus then this will negate their liability for the offence. In relation to innocent agents for example, if the agent is tricked by the principal offender then they may have the defence of mistake. Alternatively, where the innocent agent is below the criminal age of responsibility this too would negate the actus reus.
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.
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.
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 offenceat 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.
Section 44 of the Magistrates Court 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 thecommission 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 assist the principal offender in the commission of the offence will incur the same liability as the principal offender.
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. It is possible for all members of the group to be treated as equally liable.
Case in Focus
R v Craig and Bentley (1952) The Times, 10 December
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.
Case in Focus
R v Galliano (1996) Unreported
The two provisions set out in relation to the 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
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.
Case in Focus
R v Bourne  36 Cr App R 1251
Procuring means causing or instigating. In these instances, no offence needs to be complete as the would be principal offender will lack the mens rea for the offence, but so long as the actus reus is established the secondary liability can arise.
Case in focus
R v Millward  Crim LR 527
5.1.2 Aided, abetted, counselled or procured
Section 8 of the 1861 Act provides for liability to arise in 4 separate instances:
- Where an offence is aided
- Where an offence is abetted
- Where an offence is counselled
- Where an offence is procured
It was previously thought that these words were interchangeable however Attorney General’s Reference Number 1 of 1975 clarified that this instead creates four individual manners or behaviour in 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.
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  UKSC 59 that provoking is not the same as encouraging.
Due to the absence of a Good Samaritan requirement in English law, simply spectating a crime and failing to report it is insufficient to constitute any secondary liability.
A traditional causation element of the actus reus applies only to procuring. This is due to the fact that procuring means to cause so thus it must be shown that the defendant did in fact, in legal terms, cause the act.
Case in Focus
R v Calhem  QB 808
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.
Case in Focus
R v Clarkson  1 WLR 1402
Any aiding, abetting, counselling or procuring must occur prior to the offence being committed 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 completed.
- Knowledge that the actions and circumstances constituting a criminal offence existed
- Knowledge that the acts undertaken were capable of encouraging of assisting
There is no requirement of intention to encourage or assist the principal offender, thus the level of mens rea required is reasonably low.
Case in Focus
National Coal Board v Gamble  1 QB 11
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.
Case in Focus
Ferguson v Weaving  1 KB 814
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. DPP for Northern Ireland v Maxwell  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.
In these types of situations, a defendant will not escape liability by practicing willful blindness.
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.
Case in Focus
R v JF Alford Transport Limited (1997) 2 Cr. App. R. 326
This knowledge is not the same as wanting or intending the crime to be committed. In fact, the defendant could be very against the crime but still be liable.
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  EWCA Crim 1622 set out three situations where traditionally the existence of a joint enterprise could be found.
- Joint enterprise between principals
- Joint enterprise between principals and accomplices
- Parasitic accessorial liability
6.1 Joint enterprise between principals
This is the most conceptually straight forward scenario where two or more people jointly plan to commit a specific offence and then go ahead and commit the offence together.
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 where they share the same common purpose in intending the crime should be committed.
6.3 Parasitic accessorial liability
This is an area which used to arise where two or more people plan to commit one offence but one of them then goes beyond the plan and commits a separate offence. This can give rise to all of the planners being liable for the unplanned offence of murder, provided they hold the necessary mens rea for the parasitic liability, that is foresight that the subsequent offence may be committed.
6.4 Mens Rea
New developments in the law on joint enterprise
Traditionally the main significance of the finding of a joint enterprise was to lower the mens rea required by secondary parties where knowledge was not necessary, merely foresight thus making liability easier to impose. This however all changed in the recent case of R v Jogee  UKSC 8 which overruled R v Chan Wing-Siu  AC 168.
Case in Focus
R v Jogee  UKSC 8
In handing down the verdict in Jogee, Lord Neuberger confirmed that the distinction between foresight or intent is a fine one but none the less exists.
The effect of this ruling goes beyond just adapting the mens rea for joint enterprise, as it renders parasitic accessorial liability a redundant area of the law. This is due to the fact that liability in this area is based entirely on the defendant having foresight of something that might occur.
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.
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