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Complicity Notes

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Problems with policy: Very clear that there is not a central rationale for complicity which makes it difficult to determine coherence.
 Some academics proposed: Complicity to revolve around causation.
 Other academics criticised this approach: No causal link here and should rather base complicity based on some form of derivative liability.
 Bob Sullivan has argued: To abolish complicity completely replacing it with something similar due to the law's difficulty.
Law Commission Report 2006: Complicity has not been dealt with in modern legislation. Law of complicity too broad and wanted to narrow it considerably.
Modes of Participation
(a) As a joint principal

D1 and D2 commit the AR of the offence together with the required MR.

Primary parties committing the offence- Example A: By coincidence, P and S
independently attack V, who dies from the cumulative effect of the blows.
They are both principals in the murder of V.

2 people's separate actions cumulatively cause the death of V. Example B:
Several different people required to commit the offence- P1, P2, and P3 work together to forge banknotes. P1 sources the special cotton paper used in banknotes, P2 gets the special ink used, and P3 handles the actual printing.
Though none of them individually performs the entire actus reus of forgery,
each of them contributes to the performance of the actus reus, with the shared intent to commit the offence of forgery. Each is a principal to forgery.

All contributed significantly to the actus reus of the offence. Direct causal links to the act.
(b) As principal through an innocent agent

D uses an innocent party (X) to commit an offence , where X lacks mens rea .
Though the free and voluntary act of a 3rd party breaks the chain of causation:
Where the innocent party has been uninformed, there can be no free and voluntary act to break the chain of causation.

Principle of the innocent agent works by creating a legal fiction whereby the person is treated as a mere implement.
Innocent agency only applies if the person intends to use them as a tool/ mere implement. Example: A says to B take the keys to the car and B thinks it is A's car but A's intention if for B to help him steal the car. Innocent agency principle will not apply as A didn't intend to use B as an innocent agent but a coconspirator.

May still lack the mens rea for a criminal offence and thus not be liable

R v Michael (1840) - woman gave up child for foster care, wanted to kill child -
gave foster mother bottle of something she said was medicine - foster mother's child saw bottle and administered it to foster child, killing the child - S (the child administering) was an innocent agent and thus not liable - mother was the principal agent in the murder of her child.

R v Cogan & Leak [1976] QB 217- Pre SOA case therefore only need for genuine belief in consent and a husband could not rape his wife.
Courts said ideally would want to apply the innocent agency doctrine as Cogan lacks the mens rea plus Leak intended to use him as his tool but couldn't do it due to procedural reasons.
Convicted Leak as an accessory by way of procuring the actus reus of an offence. Therefore convoluted rule that you can be an accessory to a non-crime.
= double fiction. (Should rarely make legal fictions but lecturer thinks in this case= reasonable to do so or at least desirable.)
Critics say= artificial to think of D conducting an act through the innocent agent of someone else.
Textbooks and Mark disagree.
(c) As an accessory
(i) Before 1861 4 ways that you could be involved in an offence.

Principals in the first degree; the one who does the offence.,
Principals in the second degree; person is present during the crime and helped the perpetrator.
Accessories before the fact; Someone who helps in advance. Not present during act.
Accessories after the fact; helping after the crime is done i.e.
hiding the murderer.

Initially, separate treatment and separate convictions, but over time, common law evolved in a piecemeal fashion to allow accessories to be tried and sentenced as principals in some cases.
(ii) Under the Accessories and Abettors Act 1861, s8

Whoseover 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.
(iii) Under the Magistrates' Courts Act 1980, s44
The same rule is extended to summary offences as well (not just indictable offences, all offences basically.)
Good because: If don't know who the Principal and accessory are then doesn't matter as liable for the same charge and punishment. R v Giannetto [1997] 1 Cr App R 1- Either hired a hitman or killed his wife himself, unknown. Convicted of murder either way.
The Principles Behind Convicting Accessories
(a) Why hold accessories liable?
Kennedy = responsible for actions you take but accessory liability suggests otherwise as liable for actions you didn't take.
Lecturer- primary reason for holding secondary party for an offence directly perpetrated by the Principal(P) is that they've done something that has some influence on P's crime and have chosen to associate themselves with P's crime.
BTW: Can be an accessory even just by being a watchman for the crime or a getaway driver as made it more likely that the crime would have been executed successfully. Degree of influence therefore not that high. That autonomous choice to influence and associate yourself with the crime is blameworthy.
Seems like low threshold as why convicted even though didn't act/ do anything:
Encourages them to take the risk of committing the crime therefore knowingly and actively playing a role even though minimal.
(b) What do you convict accessories of? Derivative liability - a starting point.
Liability of accessory depends on that of the principal. Starting position is that an accessory is guilty of the same offence as the principal.
 This prima facie position can be displaced if there is a reason to deviate from it.
R v Bryce (2004) - drug dealer, G ordered Bryce to drive V to his house - Bryce would drive V to the house, P would kill him - Bryce tried to delay this plan, drove
V somewhere else - Bryce drove P to the caravan to assess the situation and then murder V at a later time - G then told them they had to murder V now issue was whether Bryce was an accessory in driving P to the caravan - was not keen on the crime happening but was willing to allow it, was unsure about going ahead but was equally unsure of backing out - the principal was convicted of murder and thus Bryce was as well.
''S must by doing what he does intend to assist or encourage rather than hinder or obstruct''R v A, B, C and D - C is the boss, orders A, B and D to beat up V - they did so, V
died from the combined effects of the attack - initially all four were convicted of murder, A, B and D as principals and C as an accessory - on appeal the convictions of the principals were quashed as it could not be shown that any of them had intended to cause death or really serious harm - C wanted his conviction quashed as well, appealed - court agreed as his liability also derived from that of the principals, thus if their convictions were quashed it would follow that his would be too.
The accessory can be convicted of a more serious offence than the principal.Depends on the mens rea states and defences available.
One party may have a defence, does not preclude the conviction of the other Accessory convicted of a more serious offence than the principal
Principal can be convicted of involuntary manslaughter whilst the accessory is convicted of murder. Depending on the mens rea states and defences available.
One party may have a defence, does not preclude the conviction of the other.
R v Richards [1974] QB 776 Defendant Richards hired hitmen to beat up her husband severely enough to put him in the hospital for a month. They assaulted the victim in an alley. The injuries were not as serious as anticipated and the victim did not require hospitalization.
 Richards charged under S.18 of OAPA whilst hitmen charged under S.20.
 The Queen's Bench quashed Richards' conviction on the basis that she could not be held criminally liable for a more serious offense when the more serious offense did not in fact occur.
 Reduced her conviction to s.20 conviction based on deriviative liability.
 Held that an accomplice to an assault cannot be convicted of a more serious offense than the principal even if the accomplice had the mens rea necessary for the more serious offense.

R v Howe [1987] 2 WLR 568- HOL said COA had gotten it wrong and shouldn't have interfered with the trial courts ruling. Thus Richards = wrong as if the same level of harm can give rise to different offences based on the mens rea then makes sense to convict based on corresponding mens rea states then convict each person depending on their mens rea.
Homicide Act 1957, s2(4)
Coroners and Justice Act 2009, s54(8)
(d) Accessory convicted of a less serious offence than the principal
R v Stewart and Schofield [1995] 1 Cr App R 441In an attempted robbery, Schofield kept watch, while Stewart and
Lambert, both armed, went into the shop. Lambert beat the shopkeeper to death. S & S claimed not to have contemplated committing murder and that this only happened because L was a racist and the shopkeeper was black. The Jury convicted them of manslaughter and CA upheld convictions, saying that this was open to the jury since whether or not D2s contemplated a certain type of crime was a question of fact (NOT law). Where D2 had the mens rea for a lesser offence then he could be convicted of a lesser crime than D1 (Lambert was convicted of murder). I.e. where the act was within the scope of the JCE but was not foreseen by the accessory, the accessory had a lesser mens rea and could be convicted of a lesser crime.
R v Yemoh [2009] EWCA Crim 930
- group of people attacked and killed V - they knew one-person had a pocket knife and intended to cause some injury, larger knife was used to kill V - P
was guilty of murder - question was liability of other members of group - some had only intended to cause minor injury, only convicted of manslaughter not murder
(e) Accessory convicted when principal is excused
R v Bourne (1952) 36 Cr App R 125 Husband (D) forced wife to submit to sex with a dog on several occasions.
W managed to sneak away and tell the police. W was principal of offence of buggery but not convicted as was under duress despite committing the prima facie offence. Thus, D was convicted as being an accessory.
(f) Can an accessory be convicted when the principal does not commit a crime?
S&S say yes as D procures the commission of an actus reus offence.
R v Cogan & Leak [1976] QB 217 - Lecturer thinks= illegitimate shortcut and distorts the law yet has gained legitimacy through precedent. Now people say innocent agency= not even a principle in conduct offences as weird to think of someone performing a conduct through someone else. Now= new legal fiction where can be an accessory to a non-crime.
R v Millward [1994] Crim LR 527Procurement - Causing death by reckless driving; whether accessory could be liable where principal lacked mens rea.
Facts: H, employed by B, was driving a tractor when a trailer became detached from the tractor due to a poorly maintained tow-hitch, hit a car and killed a passenger. B, the employer, was convicted of aiding, abetting, counselling or procuring H to cause death by reckless driving due to B's instructions to H to drive the tractor with the poorly-maintained tow-hitch on the highway and which resulted in the death. H was acquitted. B appealed against his conviction.
Issue: The issue in question was whether B, charged as the accessory, could be liable where the principal, H, lacked mens rea. B claimed that the procurer cannot be convicted after the principal had been acquitted, and that the word
"reckless" had to be read as a requirement for a mental element into the offence's actus reus , and the acquittal implied this was therefore not committed.
Held: An accessory can be liable where the principal commits the actus reus of the offence, even if the principal lacks the necessary mens rea to be convicted himself. Procuring does not require a joint intention between accessory and principal. In this case the actus reus was the taking of the vehicle in its defective condition on the road so as to cause the death, which was procured by B. The appeal was dismissed. Today, under section 2A(1) of the Road Traffic Act 1988 it is expressly provided that the new offence of dangerous driving is committed where it is obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous; therefore where such a driver is not, and could not be expected to be, aware of the defects, he could not commit the actus reus of the offence and procurement of the offence would not be possible.
Thornton v Mitchell [1940] 1 All ER 339- If actus reus didn't occur then can't be an accessory (note that above cases only if lack of mens rea).
a bus conductor (D) negligently signalled for a bus driver (P) to reverse. Two pedestrians were knocked down by the bus, one of whom (V) was killed. P was charged with careless driving; D was an accomplice.
Held: P not guilty, as his driving was not careless. D was found guilty and appealed. High court: appeal by case stated allowed. Where P does not commit the AR of an offence, there can be no accomplice liability.
R v Loukes [1996] 1 Cr App R 444
Distinction between Loukes and Millwood. Millwood, S actually knew there was a problem with the vehicle and made/ allowed him to drive it anyways. Loukesought to have known the truck was defective but didn't, didn't know, wasn't trying to use them as an innocent agent so can't base conviction again.
To use someone as an innocent agent have to intend to use them to commit that offence.
Accessorial Liability for Aiding, Abetting, Counselling and Procuring
(a) Actus Reus s 8 Accessories and Abettors Act 1861:
"Whosoever shall aid, abet, counsel or procure the commission of any indictable offence ... shall be liable to be tried, indicted and punished as a principal offender."
Attorney-General's Reference (No. 1 of 1975) [1975] QB 773- said we should use these words in their ordinary sense.
Courts have interpreted such words as....

• Aiding = "Assisting"

• Abetting = "Encouraging" either positively OR negatively - usually during the crime.

• Counselling = "Encouraging"- usually before the crime.
A's actions don't necessarily have to have any real effect on P's actions.
Procuring: Have to actually influence the crime. Intend it to happen and take steps to make sure it happens. Possible to procure an offence without the knowledge of the principal.AG's Reference No. 1 of 1975 - S laced P's drink - P set out to drive home, S
knew of this - P did not know he was drunk, convicted of drunk driving - P
completely unaware of S' procurement but S was still an accessory to P's offence of drunk driving - to procure is simply to produce by endeavour i.e. to see something happen and ensure that it does, possible without P being aware.
Threshold for liability is low.
R v Calhaem [1985] QB 808- Counselling or procuring murder.
Facts- The defendant was convicted of murder under s.8 of the Accessories and Abettors Act 1861. She had counselled Z to murder the victim. Z decided not to carry out the murder but had gone berserk and eventually killed the victim anyway. The defendant appealed her conviction.
Issue- The trial directed the jury that "counselling" under s.8 meant to incite,
solicit, instruct or authorise, or "to put somebody up to something". The jury was then also directed that it was for the prosecution to prove that the defendant counselled Z to kill the victim, and that the victim was killed by an act of murder within the scope of the defendant's instructions and authorisation. The defendant argued that the trial judge had failed to direct the jury on her defence,
which was that counselling required substantial causal connection between the counsellor's acts and the actual commission of the offence. As Z decided not to comply with the defendant's request and only killed the victim after going berserk, no such causal connection existed.
Held- The Court decided to dismiss the defendant's appeal. It held that, within the meaning of s.8 AAA 1861, "counselling" did not require any causal connection between the counselling and the principal offence (i.e. the actual murder). An offence under s.8 was established by the presence of counselling and the principal offence was committed by the person counselled within the scope of the authorisation or instruction (i.e. not by accident). The trial judge had therefore accurately directed the jury.
Example: A hires B to kill C. B agrees to do it tomorrow. That night he enters a fight, killing someone who unknown to him was C. A is not liable as has not aligned themselves with the crime that occurred.
R v Cuddy (1843) - mere presence at a duel was not enough to leave S liable -
but encouraging those involved to participate in a dual was enough to count as encouragement - presence and any form of encouragement is enough to cross the threshold for liability.
R v Clarkson (1971) - C was a British soldier, watched three other soldiers gangrape a young girl - did not encourage or do anything - held that his mere presence and the fact that he was watching were not enough to leave him liable
- liability required an action, being present was not encouragement.
Tuck v Robson (1970) - pub owner had a licence that did not permit alcohol consumption past 11pm, had to make sure customers finished and left just past 11 - customers were guilty as principals - he was guilty as an accessory as he did not prevent them from continuing to drink and was present next door.
R v Webster (1993) - allowed another to drive his car dangerously while still present in the car - was therefore an accessory to the offence of dangerous driving.

Kennedy (No. 2) [2007] UKHL 38, per Lord Bingham at [17]:
- "Principals cause, accomplices encourage (or otherwise

influence) or help."

Mendez and Thompson [2010] EWCA Crim 516, per Toulson LJ at [18]:

- "At its most basic level, secondary liability is founded on a principle of causation, that a defendant (D) is liable for an offence committed by a principal actor (P) if by his conduct he has caused or materially contributed to the commission of the offence (with the requisite mental element)."

Stringer [2011] EWCA Crim 1396, per Toulson LJ at [48]:

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