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Law Notes Criminal law Notes

Complicity Notes

Updated Complicity Notes Notes

Criminal law Notes

Criminal law

Approximately 80 pages

In depth notes with lecturer and textbook comments included as well as academic commentary. Colorful and highlighted, visually attractive. ...

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Complicity

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 co-conspirator.

  • 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

(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...

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