This is an extract of our Secondary Liability document, which we sell as part of our GDL Criminal Law Notes collection written by the top tier of Cambridge/Bpp/College Of Law students.
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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.
o Joint Principals
Accomplice Liability (aid, abet, counsel or procure)
o Joint enterprise
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.
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."
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  - Holding the victim down while they were raped would count - in this case they merely watched.
Bainbridge  Supplied oxygen cutting equipment which was used to break into a bank six weeks later.
o Abet: to encourage or incite
Wilcox v Jeffery  - 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  - soldiers watched as D1 raped V. No gestures or encouragement. Held could not be liable by simply being present.
Francom  - 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  - 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'
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
o A victim cannot be an accomplice
Tyrell  - 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  - 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
 - 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  - above, watching soldier rape. Not liable.
Wilcox v Jeffery  - above, buying ticket for and writing about illegal jazz performance was abetting.
Francom  - 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  - 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  - allowed customers to drink outside licence hours.
o Du Cross v Lambourne  - allowing another party to drive your vehicle dangerously.
o Carter v Richardson  - 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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