Complicity Short Notes

COMPLICITY

PRINCIPALS AND ACCOMPLICES

Principle: person whose acts / omissions amount to the AR of the offence.

Accomplice: person who aids / abets / counsels / procures the principle in the commission of an offence.

What does the prosecution need to show for D to be a principal? Following Giannetto, the Crown do not need to be sure whether D was an accomplice or principal, just that D, having the necessary MR, caused the prohibited result (i.e. the AR).

R v Giannetto [1997]

• Facts: G made threats to his wife, Julia, and paid Welch to kill her. G was arrested after his wife’s death. The prosecution was unable to prove who killed her. He was convicted of murder on the basis that either he or someone acting on his behalf (perhaps W) killed her. He appealed on the ground that it had to be clear whether he was the principal or the accessory.

• CA (Kennedy LJ): Dismissed the appeal. “there are two cardinal principles. The first is that the jury must be agreed upon the basis on which they find a D guilty. The second is that a D must know what case he has to meet.” So where the Crown charge D with either being a principal or an accomplice (but they are not sure which), “the basis on which the jury must be unanimous is that D, having the necessary MR, by whatever means caused the result which is criminalised by the law.”

Innocent agency: An innocent agent is a person whose act causes the harm to V, but who is innocent, either because: (i) he lacks criminal capacity (e.g. he is insane, or under the age of criminal responsibility); (ii) he is unaware of the criminal nature of the act he is doing (e.g. a post man delivering a parcel-bomb). Where an innocent agent is involved, the principle is the person who causes I to perform the AR —in such circs. the AR is not guilty of any crime. An example:

• Michael [1840]: D wished to kill her baby. She gave a bottle of poison to the baby’s nurse, telling her it was medicine for the baby. The nurse left the ‘medicine’ on a shelf and another child administered it to the baby. Here the nurse and the child were innocent agents.

COMPLICITY ACTUS REUS

Five ways one can be an accomplice: (i) aiding; (ii) abetting; (iii) counselling; (iv) procuring; (v) party to a joint enterprise.

s.8 Accessories and Abettors Act 1861: “whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any act passed or to be passed, shall be tried, indicted, and punished as a principle offender.”

NB: two points of note arise from s.8

1. There must be an offence committed by the principle. If A gives P a knife, in order to kill V, A is not guilty of these offences if P does not commit the crime. However, the new offences in s.44 – 46 Serious Crime Act 2007 catch those who do an act capable of assisting / encouraging a crime, even if the principle does not go on to commit it.

2. The accomplice is charged with the basic offence: e.g. A will be charged with murder, even though he/she was only an accomplice.

Although aiding / abetting / counselling / procuring have long been seen as separate (why else would Parliament use four different terms), the SC in Jogee suggested that the forms could be reduced to assisting and encouraging. This lack of clarity in distinguishing between the terms mean that an accomplice can be convicted even if it’s a little unclear which category he falls into.

Aiding: This covers offering help / assistance to someone —e.g. providing a piece of equipment.

• There is no need to show the assistance was substantial, just that it actually was a help to the principal (seeBryce [2004]). Although, if A tries to help, but his help is worthless to P, then A will not be guilty.E.g. if A gives P a knife, in order to help P kill V, but P shoots V, then A will not be guilty—although the provision of the knife may be counselling and if the giving of the knife provided P with confidence, then that may have been aiding.

• There is no need to show P and A met in person, or even knew one another. E.g. a security guard leaving the property unlocked, hoping it would get robbed, has still assisted a crime.

• No need for the assistance to happen at the same time as the crime: see Stringer (Ian) [2011]. i.e. act of assistance could have occurred a long time earlier.

Abetting: Doesn’t really have a clear meaning (most synonyms could also apply to counselling). Devlin J in NCB v Gamble [1959] suggested that abetting is encouragement at the time of the offence and counselling is encouragement before the crime took place.

Counselling: involves encouraging / inciting / instigating an offence. There is no need to show that the counselling caused the offence.

• Calhaem [1985]: A hired a hit man (P) to kill V. P did kill her, but in a panic after she started screaming, not according to plan. A’s conviction for counselling was upheld, although P did not kill because of the instruction (rather due to panic). CA (Parker LJ): Counselling does not require “any causal connection between the counselling and the offence.” However, there must be a “connection between the counselling and the murder” and the act must be done “within the scope of the authority or advice, and not, for example, accidentally when the mind of the murderer did not go with his actions.” For example, if A counselled P to kill V, but P then was involved in a “football riot during the course of which he laid about him with a weapon and killed someone who, unknown to him, was V” then that would not have been “within the scope” of the authority / advice given by A. Key point: no causal connection required, but there must be ‘some connection’ and P’s crime must be within the scope of the authority given by A.

• Jogee [2016]: Once encouragement or assistance is proved to have been given, the prosecution does not have to go so far as to prove that it had a positive effect on P’s conduct or on the outcome.” However, “there may be cases where anything said or...

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