A more recent version of these Secondary Liability Accessory Principles notes – written by Cambridge/Bpp/College Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our GDL Criminal Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Secondary Liability & Accessory Principles _______________________________________________________
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
? 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 o 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 o 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 o 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 o 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.
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