Secondary Liability & Accessory Principles

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Secondary Liability Principles

Criminal liability of a secondary participant where the principal has in fact committed the offence (compare inchoate liability which is an incomplete offence).

S.8 Accessories and Abettors Act – “aid, abet, counsel or procure the commission of any indictable offence...shall be liable to be...punished as a principal offender”

• NB: S.2(1) Suicide Act 1961 creates accessorial liability for aiding suicide, which isn’t in fact an ‘indictable offence’ as it isn’t illegal to kill yourself – public policy overriding technical rules

Inconsistency:

• A Ashworth: “common law running wild – there are too many decision on complicity, so that courts...tend to pick and choose among the many precedents; and there is no settled set of principles”

Actus Reus

• AG’s Ref No.1 of 1975 “we approach the section (S.8 Accessories and Abettors Act) on the basis...that if four words are employed...the probability is that there is a difference between each of those four words”

• Sir John Smith: "procuring requires causation but not consensus; encouraging requires consensus but not causation; assisting requires actual help, but neither consensus nor causation"

• Encouragement

  • R v Gianetto “if he played any part, either in encouragement, as little as patting him on the back, nodding, saying ‘oh goody’, that would be sufficient to involve him in the murder, to make him guilty, because he is encouraging the murder”

• Advice

  • Gillick v West Norfolk Health Authority (below)

Mother tried to get the doctors in trouble for giving contraceptive advice under this head of liability

Held: declaration refused – it wasn’t unlawful on policy grounds

NB: S.73 Sexual Offences Act has codified this exception

• Supplying materials

  • R v Bainbridge (below)

Held: secondary liability found as he knew that the material wasn’t going to be used in the ordinary way – it had a criminal use

• NCB v Gamble (below)

Lorry driver took an overloaded lorry over a weighbridge, and the weighbridge operator had noticed, warned him, but allowed him to continue on the driver’s assurance

Held: liable as an accomplice as he had sufficient knowledge of the unlawful act & had done an act of assistance by not preventing the driver

Presence at the scene of the crime as assistance

The argument that D1 derives support & encouragement from the presence of D2

R v Coney

D2 Coney was present at an illegal prize fight

Held: not enough to establish liability, despite the fact he had a secret desire to join in if his side were to lose. Proof required of some positive act.

Wilcox v Jeffery

Saxophonist Coleman Hawkins wasn’t allowed into the UK, however D met Hawkins at the airport & helped him.

Held: proof of positive acts of encouragement & support, so he incurred D2 liability

R v Clarkson

Rape occurred on V in an army barracks & D2 Clarkson took no part in the rape but simply stood by and watched.

Held: no liability simply by being present.

R v Francom

V had been kept in a flat for over 2 days, and the autopsy revealed she had suffered more than 48 types of injury including a wide ranging spectrum of abuse

Held: because of the wide time period, the fact that D2 had been presence over the 2 day period (though Francom had not been shown to inflict the injuries) that he had incurred secondary liability

Failure to intervene

Tuck v Robson

Licensee failed to remove punters who were fighting

Held: secondary liability

Carter v Richardson

Learner driver suspected to have been over the limit

Held: driving instructor incurred secondary liability because of his duties as an instructor. It was sufficient that he had a Cunningham recklessness standard applied

Domestic Violence

Lane and Lane

Killing of a 22month old by 1 blow to the head causing a fractured skull. The blow occurred between lunchtime & 6.30pm in the evening. The problem for the prosecution was that it was impossible to say which defendant had inflicted the fatal injury

Held: no case to answer for either party which caused great uproar -

The result was the S.5 Domestic Violence, Crime and Victims Act 2004 which makes D2 liable when the killing occurs in the same household. It imposes a crime of negligence punishable by a max. 14 years imprisonment by causing the death of a child/vulnerable adult if D2 ought to have foreseen the risk of serious injury being caused they will be liable, as long as:

• There is a significant injury

• In circumstances that would have been reasonably foreseeable

• They failed to take steps that they could reasonably have been expected to take to protect V from risk

R v Khan

Wife came from Pakistan with her husband and his brother & sisters in Bradford on an arranged marriage. D1 killed his wife by hitting her with a spade in the garage. D2 argued that they weren’t in the property at the time of the killing, however in the 3 weeks up to the point of killing there had been repeated episodes of violence

Held: (CA) where someone is a vulnerable adult, there doesn’t have to be exact knowledge between the harm that occurred and what D2 foresaw. There doesn’t need to be knowledge of the level of violence provided they would have reasonably foreseen significant injury. Nor did it matter that they weren’t present at the time. It was left open as to whether the sisters-in-law were themselves subjected to abuse.

See Domestic Violence Crime and Victims (Amendment ) Act 2012

Mens Rea

In order for D2 to have secondary liability, he must have knowledge of the essential matters that constitute the offence - some sort of subjective awareness of the elements of the principal offender’s crime.

So it must be shown:

• Intentional assistance to D1

• Knowledge of the elements of D1’s crime

What doesn’t need to be proven is D2’s knowledge of the exact details of D1’s crime. It is sufficient for D2 to have supplied materials for a burglary...

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