Secondary Liability

• Multiple offenders can be divided into two broad categories:

  • Principal offenders: usually those who physically perform the necessary AR.

  • Secondary offenders: in some way assists the principal in the offence.

• Four areas:

  • Joint Principals

  • Accomplice Liability (aid, abet, counsel or procure)

  • Joint enterprise

  • Withdrawal

• Andrew Ashwoth: the ‘common law running wild’

  • Too many decisions on complicity, so that courts (and/or counsel) tend to pick and choose among the many precedents;

  • 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)

  • 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:

  • The words are to be given their ordinary English meanings (AG’s Ref No.1 of 1975)

  • 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.

  • 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.

  • 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.

  • 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.

  • A victim cannot be an accomplice

    • Tyrell [1894] – an underage girl encouraged an older man to have sex with her. Not liable.

  • 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.

  • 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.

  • 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:

  • Clarkson [1971] – above, watching soldier rape. Not liable.

  • 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:

  • Lane and Lane (1986) – 22month old killed as a result of fractured skull. No evidence which parent did it. Neither liable.

  • 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.

  • 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):

  • Tuck v Robson [1970] – allowed customers to drink outside licence hours.

  • Du Cross v Lambourne [1907] – allowing another party to drive your vehicle dangerously.

  • 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.

  • D2 must have

    • 1) Intent to commit the act that assisted the primary defendant

    • 2) Knowledge that the perpetrator is...

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