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Secondary Liability Notes

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SECONDARY LIABILITY

Multiple offenders can be divided into two broad categories:
o Principal offenders: usually those who physically perform the necessary AR.
o Secondary offenders: in some way assists the principal in the offence.
Four areas:
o Joint Principals

Accomplice Liability (aid, abet, counsel or procure)
o Joint enterprise

Withdrawal
Andrew Ashwoth: the 'common law running wild'
o Too many decisions on complicity, so that courts (and/or counsel) tend to pick and choose among the many precedents;
o There is no settled set of principles, which means that judicial development of the law does not always conduce to coherence.

JOINT PRINCIPALS
 Occurs when two or more offender. Each of the offenders had both the necessary MR and AR for the offence (e.g. two burglars)
o Macklin, Murphy (1838)
 Note that two offenders who commit the same AR may be liable for different offences if their MRs differ. E.g. an offence against a person and one only intends to inflict some harm (s.20) while the other intends grievous harm (s.18).
ACCOMPLICE LIABILITY (AID, ABET, COUNSEL OR PROCURE)
 S.8 Accessories and Abettors Act 1861: "Whoever shall aid,
abet, counsel or procure… shall be liable to be tried, indicted and punished as a principal offender."
 Definitions:
o The words are to be given their ordinary English meanings
(AG's Ref No.1 of 1975)
o Aid: to give help, support or assistance
 Clarkson [1971] - Holding the victim down while they were raped would count - in this case they merely watched.
 Bainbridge [1960] Supplied oxygen cutting equipment which was used to break into a bank six weeks later.
o Abet: to encourage or incite
 Wilcox v Jeffery [1951] - Wilcox reported on the arrival of a Jazz musician who was told he was not legally allowed to perform in the UK. Wilcox bought a ticket and praised the show. Found to have encouraged illegal activity. Clarkson [1971] - soldiers watched as D1 raped V. No gestures or encouragement. Held could not be liable by simply being present.
 Francom [2004] - V kidnapped and held for 24hrs, was severely beaten and abused. No evidence that D had committed any of these offences, but had been present for full 48hrs.
 Lord Woolf stated that given the length of time that D2 was present (all 48hrs) was tantamount to encouragement.
o Counsel: advise, solicit, or encourage
 Gianetto [1997] - Unsure if G or third party killed wife.
Held it did not matter as long as G had necessary MR.
 If someone tells you they plan to kill your wife then simply patting them on the back or saying
'oh goody!' would be sufficient for counselling murder.
o Procure: to 'procure by endeavor'
 AG's Ref No.1 of 1975 - D laced V's drink at the pub.
V caught drink driving. D liable for 'procuring by endevour'

Key principals

While a principle offender may be strictly liable a secondary offender cannot be strictly liable, and always requires MR
 Callow v Tillstone (1900) - Butcher (D1) sold meat unfit for consumption despite it being certified by a vet
(D2). As D2 was negligent he lacked the necessary MR
for liability.
o A victim cannot be an accomplice
 Tyrell [1894] - an underage girl encouraged an older man to have sex with her. Not liable.
o To be guilty, the principal offence must have been committed.
You cannot be an accomplice after the offence has been committed.
 However, it is possible that only the AR of the primary offence has been committed:
 Bourne (1952) - Husband compelled with to beastiality with the family dog. The wife had a defence (compelled to do the act). The husband was laible despite main offence only having MR.
 Cogan and Leak (1975) - Husband compelled others to rape his wife. Marital rape was not a crime (until 1991) so lack the MR.
o There need not be a causal connection between 'abetting' or
'counselling' and the principal offence
 Calhaem [1985] - D had counselled another (Z) to kill the victim. Z decided not to carry out the murder. Later 

Z went bezerk and killed the victim. Held no need for counselling to be causally connected with murder.
o Exceptions to aiding, abetting and counselling per s.73
Sexual Offences Act 2003
 This followed the case of Gillick v West Norfolk HA
[1986] - Ms Gillick argued that by providing advice on contraception to girls under 16 the Drs became D2 liable. Held that there was a defence of necessity.
 Codified in statute, exceptions include:
 protecting the child from sexually transmitted infection,
 protecting the physical safety of the child,
 preventing the child from becoming pregnant, or
 promoting the child's emotional well-being
Generally presence alone cannot amount to liability:
o Clarkson [1971] - above, watching soldier rape. Not liable.
o But:
 Wilcox v Jeffery [1951] - above, buying ticket for and writing about illegal jazz performance was abetting.
 Francom [2004] - presence for 48hours of abuse amounted to abetting
Problems with domestic killing:
o Lane and Lane (1986) - 22month old killed as a result of fractured skull. No evidence which parent did it. Neither liable.
o Resulted in Domestic Violence, Crime and Victims Act 2004, s. 5
 Bespoke crime of causing or allowing the death of a child or vulnerable adult in the same house. D2 liable even if not the direct cause of death.
 Amended in 2012 to include serious injury.
o Khan [2009] - applied the act. A strict liability crime provided death/serious injury was reasonably foreseeable and no reasonable steps taken to prevent.
There can be a duty to intervene (liability by omission):
o Tuck v Robson [1970] - allowed customers to drink outside licence hours.
o Du Cross v Lambourne [1907] - allowing another party to drive your vehicle dangerously.
o Carter v Richardson [1974] - allowing another to drive your vehicle while they are drunk.
Mens Rea Requirement

Andrew Semester: the conduct element is minimal it is all about fault.
o D2 must have
 1) Intent to commit the act that assisted the primary defendant

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