Seminar 8

parties to a crime
 Plan for today
Overview participation

Question one – deal with withdrawal of Harry

Discuss – participation overview and pre Jogee confusion

Discuss – Jogee

Rest of question one

Question two - Jim

 When looking at ‘group crime’ (P + A; P + A1, A2,
A3):

What is Accomplice liability (aka complicity or participation)

arises where P goes on to commit the principal offence.
complicity A1, A2, A3 can be tried and convicted as P, for the
same offence via Part 2 Serious Crime Act 2007
 Complicity by
aiding, abetting, Whoever shall aid, abet, counsel or procure the
counselling or commission of any indictable offence, whether the
same be an offence at common law or by virtue of any
procuring– s(8) act passed or to be passed, shall be liable to be tried,
Accessories and indicted, and punished as a principal offender

Abettors Act 1861

 What is required to sucessfully withdraw from the offence (and
avoid complicity liability) isn’t entirely clear…

Withdrawal of
Repentance is not enough! –
Not turning up is not enough! See Rook (1991): D and another

Harry from the were recruited by X to kill his wife V – on the day of the murder D
was absent – still liable as an accomplice, D’s absence was not

offence
sufficient to withdraw from P’s offence
The weight of D’s assistance will be balanced against the action
taken to withdraw – the more substantial D’s assistance and the
closer to P’s commission of the offence, the more the courts will
require
 Robbery – principal offence takes place as planned
Tom and Dick threaten John? Tom takes John’s wallet
Tom = principal offender, Dick = accomplice?
PO (robbery) is committed as planned?

Making sense Question: is Dick liable for assisting/encouraging the

robbery of John?

of Tom and GBH – different/more serious offence than planned

Dick Dick stabs John in the chest (s18 GBH with intent), Dick =
P, Tom = accomplice
A different/more serious offence (GBH) is committed than
planned
Question is Tom liable for assisting/encouraging s18 GBH?
 ‘Aiding’ should be read as ‘assisting’
D can assist at the time P commits the PO – eg by
driving the car, acting as a lookout; or in advance
(getting weapons, tools) – here
Aiding/abetting/counselling
D can assist even where it is not asked for or even
AR
known about (eg D gets in the way/prevents a police
officer making an arrest without P’s knowledge)
Abetting and counselling are encouraging
Clear Dick/Tom are aiding/abetting each other
 Conduct must be voluntary (eg no liability if D accidentally drops
a tool which P picks up and uses)

MR: (1) D’s

D must intend that his conduct will assist or encourage P to
commit the whole PO

MR as to his D will usually also intend that the offence be committed but not
necessarily – oblique intention is enough

own conduct This element is therefore satisfied where D directly intends to

assist, encourage, or procure P’s offence (because it is his desire or
purpose) AND where D recognises, although he does not
necessarily desire it, that it is a virtually certain consequence of his
conduct
(2) D’s MR as General rule – Johnson v Youden (1950)
Chan Wing-Siu (1985) ‘wrong turn’
to P’s PO Jogee
 Previously…
Johnson v Youden (1950)

At the time of assisting, encouraging or procuring D must ‘know the essential matters’ that
constitute P’s Principal Offence
D must have knowledge of what P will go on to do
Chan Wing Sue (1985)

D and two other’s went to V’s house to rob him

V was stabbed and killed
D foresaw, but did not intend, that one of his co-accused might act with intention to kill
D can be liable as an accomplice on the basis of foresight
 Jogee
D and P went to V’s house and had a fight
P took a knife from the kitchen and killed V
D intended P to be violent to V and foresaw the possibility

BUT THEN: of serious harm being caused but did not intend serious harm
to be caused

Jogee and Ruddock

D and P jointly involved in the robbery of V’s car

Ruddock (2016) P killed V

D foresaw that P might act with intention to cause serious
harm, but did not intend him to
Held: appeal allowed – complicity liability requires D to intend to
assist or encourage P to commit the PO with the required MR,
foresight not enough
 Explicitly overturns Chan Wing-Siu characterising it as
a ‘wrong turn’
Returned the law to its position 30 years earlier

Jogee D must intentionally assist, encourage, or procure and

must know that P will complete the elements of the PO
BUT not entirely clear what is needed for ‘knowledge’
– it is likely that D must intend every element of P’s
offence, ie conduct, result and circumstance
 Need to consider –
Where D commits principal offence as planned (robbery)
Where D commits a different offence to the one planned
(GBH with intent)

Our facts…. Where D commits principal offence as planned – post

Jogee, it is likely that D must intend every element of
P’s offence, ie conduct, result and circumstance
Here – Dick did intent every element of the robbery
offence…
 Where D
commits a (i) The position pre Jogee (English) – the fundamental
difference rule

different (ii) Jogee and Tas (2018) – the introduction of the

offence to the overwhelming supervening event

(iii) Still relevant where
one planned – P attacks a different target (but three qualifications)

GBH with Where P acts in a considerably more dangerous way

intent
 D must intend the essential elements of P’s offence to be
liable as an accomplice – if P’s crime is essentially
different this became a ‘fundamental difference’ and D
was not liable as an accomplice

(i) The position English (1999):

D and P attacked a police officer, V with wooden

pre Jogee posts, P produced a knife which D had not foreseen P

might carry and stabbed V
Held: D not guilty as an accomplice to murder – D’s
action of stabbing with knife was fundamentally
different to stabbing with a wooden post
Thinking about our facts…
 In Jogee the SC made it clear that the availability of the concept of the
‘overwhelming supervening event’ is now narrow, and suggested that
the focus on D’s knowledge of P’s use of a weapon was no longer as
relevant

(ii) Jogee/Tas – In Tas (2018)

there was a violent group attack and V was stabbed and killed by

the intro of the

one of the attackers
D was part of the attacking group – but he maintained he did not
stab V and did not know any member of his group carried a knife

(narrow) OSE Following Jogee, the trial judge held that a potentially unknown
weapon could no longer provide the basis for an OSE
OSE rule only available where P’s conduct is such that ‘nobody
in the defendant’s shoes could have contemplated what might
happen and it is of such a character as to relegate his acts to
history’
 P acts in a considerably more dangerous way than that
intended by D

The P’s conduct must remain broadly in line with D’s

intentions for D to be held as an accomplice
supervening act AGs Reference (no 3 of 2004)

is still relevant D recruited P and another to intimidate V by firing a gun

near not at him

where… P intentionally shot and killed V

D was charged with murder as P’s accomplice
CA: not liable, P’s act (shooting at V) was fundamentally
different from the act intended by D (shooting near V)
 An ‘inchoate’ offence is an offence that is in some
sense unfinished

Overview – Three ‘general’ inchoate offences that apply across

most principal offences in criminal law
inchoate Attempt: D tries to commit a principal offence

offences
Conspiracy: D agrees with someone else to commit a
principal offence
Assisting or encouraging: D does acts that are capable of
assisting or encouraging someone else to commit a
principal offence
 Criminal Law Act 1977 section one
AR:
An agreement between D1 and D2 to pursue a course of conduct that
will necessarily amount to the commission of a PO
What constitutes an agreement to a course of conduct for the

Conspiracy purposes of conspiracy?, and

What has to be agreed? Ie what ‘course of conduct’ qualifies as
conduct that necessarily amounts to or involves the commission
of the PO?
MR:
Must intend to agree
Must intend every element of the PO
What does agreement mean

Walker: 1961 –
D1, D2 and D3 discussed the proposition that they should steal a payroll, but D1 later
withdrew from the negotiation
CA – allowed appeal – there was no evidence of a decision or of an agreement being
reached

There must be sufficient detail to be sure:

They have agreed to do something criminal (to get ‘revenge’ not enough)
The offence they have agreed to commit must be identified (there needs to be a PO for
the conspiracy to attach to) (agreement to ‘break the law’ not enough)
All the elements of the offence must be agreed to – eg an agreement to put poison in
V’s tea is not enough unless the agreement is to kill V
No need for detail – just elements of the offence. Agreement to kill V with no
agreement on when or how will suffice.
 An ‘inchoate’ offence is an offence that is in some
sense unfinished

Overview – Three ‘general’ inchoate offences that apply across

most principal offences in criminal law
inchoate Attempt: D tries to commit a principal offence

offences
Conspiracy: D agrees with someone else to commit a
principal offence
Assisting or encouraging: D does acts that are capable of
assisting or encouraging someone else to commit a
principal offence
 Section 44 – intentionally encouraging or assisting an
offence
Overview – the Section 45 – encouraging or assisting an offence

offences believing it will be committed

Section 46 – encouraging or assisting offences
believing one or more will be committed
 Sections 44, 45, 46 all have the same AR
‘an act capable of encouraging or assisting the commission
of an offence’ (sections 44(1) (a) and sections 45(a))
AR of assisting ‘an act capable of encouraging or assisting the commission

or encouraging of one or more of a number of offences’ (section 46(1)(a)

Can assist or encourage by omission (section 65(2)(a))
Applying to our facts: Julie clearly does an act which is
capable of assisting the poisoning of Jim’s wife
 MR of s44 D must intend her conduct will assist or encourage P’s
principal offence (section 44(1)(b)
intentionally No need to intend to assist or encourage every element
encouraging or of the principal offence – just the conduct element

assisting in an Enough if he intended to encourage the doing of an act

which would amount to the commission of a crime
offence– as to Clearly Julie intended to encourage the doing of an act

D’s own conduct (poisoning) which would amount to the commission of

a crime
 D’s MR (section D’s MR as to the conduct element of the principal offence –
intention (D must intend P to carry out the conduct element)

44 intentionally D’s MR as to the circumstances element of the principal offence –

recklessness (eg if providing P with a gun, must be at least
encouraging or reckless as to whether P shoots a person (the circumstance element
of murder))

assisting in an D’s MR as to P’s MR when completing the principal offence –

offence) as to P’s
recklessness (eg if providing P with a gun, just be at least reckless
as to whether or not P will shoot the gun with the intention of
causing death or GBH).
principal offence Julie intends the conduct element and is reckless as to the rest
 Overview – the offences (Part 2 Serious Crime Act
2007)
AR of sections 44, 45, 46
MR of section 44 intentionally encouraging or
Assisting or assisting an offence

encouraging MR of section 45 encouraging or assisting an offence

believing it will be committed
MR of section 46 – encouraging or assisting offences
believing one or more will be committed
 Overview – the offences (Part 2 Serious Crime Act
2007)
AR of sections 44, 45, 46
MR of section 44 intentionally encouraging or
Assisting or assisting an offence

encouraging MR of section 45 encouraging or assisting an offence

believing it will be committed
MR of section 46 – encouraging or assisting offences
believing one or more will be committed
 MR of s 45 –
encouraging or D must believe his act will assist or encourage P’s
principal offence
assisting an This applies to the conduct element of P’s offence only
offence believing it (as with section 44)

will be committed EG D sells P a gun to make money – he does not

– D’s MR as to his intend to assist P but it is enough if he believes that he

is assisting P to fire the gun
own conduct
 An ‘inchoate’ offence is an offence that is in some
sense unfinished

Overview – Three ‘general’ inchoate offences that apply across

most principal offences in criminal law
inchoate Attempt: D tries to commit a principal offence

offences
Conspiracy: D agrees with someone else to commit a
principal offence
Assisting or encouraging: D does acts that are capable of
assisting or encouraging someone else to commit a
principal offence
 Attempts - summary
AR ‘more than merely preparatory’

(a) Last act test - narrow

(b) Series of acts test - broad
(c) The CAA 1981 test – middle way?

MR - ignore the MR for the PO

D must intend the PO (Kahn)

 Has D completed all the acts that he believe were necessary to commit
the PO?
Eg, in a shooting, D would only have completed all the acts when he

(a) Last act test pulled the trigger

D only criminalised when he passes the point of no return

– only allows R v Gullefer (1990): has D ‘embarked on the crime proper’? (only
criminalise once they have properly started)

for late R v Jones (1990): has D completed ‘the last act which lay in his power
towards the commission of the offence.’

criminalisation
R v Stonehouse [1978] ‘where D has crossed the Rubicon and burned
their boats’ (Rubicon is the mythical river at the edge of the Roman
Empire, if you cross that with an army then you have declared war on
Rome…)
Applying to our facts: Julie – clearly not completed all the acts…
 (b) Series of Were D’s acts part of a series of acts which would result in
the commission of the offence if not interrupted ?

acts test – Eg, in a shooting, this would allow for liability well before
the firing of the gun, and potentially it would allow for
allows for early liability when D purchased the gun

criminalisation Allows for early criminalisation – on our facts might allow

for Julie’s supply of poison to be enough?
 More than merely preparatory acts – is there sufficient
evidence of attempt?
Jones (1990) –

(c) CAA 1981 – D got into the back seat of a car with V and pointed a
sawn off shotgun at him

middle way? V struggled and escaped unharmed

D convicted of attempted murder, conviction upheld on
appeal – even though D was at least three steps away
from completing the PO (removing catch, putting finger
on trigger, and pulling trigger) his acts were ‘more than
merely preparatory’
 D and others tried to have sex with V (non consenting 15 yo)
All Ds were reckless as to her non consent

MR D must One d did not achieve penetration and was charged with attempted rape
Held: guilty of attempted rape
intend the PO – Problem: MR as to his belief of her non consent is recklessness, not

Kahn (1990)
intent
CA held: attempts liability requires D to intend the physical parts of the
AR of the PO (here the act of penetration) but need not include
intention as to circumstances (here V’s lack of consent) – in relation to
circumstances it is enough if D has the MR as required for the PO
 Khan: MR of attempts is satisfied where:
D intends the conduct and result elements of the PO
Khan: summary D satisfies at least the MR requirement as to the

of position
circumstance element of the PO (potentially less than
intention)
Here – likely that Julie intends the conduct and is at least
reckless as to the rest?