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Complicity Short Notes

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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 (see Bryce [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 done by A has faded to the point of mere background" or has been deprived of force by "some overwhelming intervening occurrence by the time the offence was committed." It is a question of fact and degree.

Procuring: Where A 'procures by endeavour' / caused P to commit an offence. Procuring is closely linked to the doctrine of innocent agency --- the crucial difference being that, here, P is not entirely innocent (e.g. P does have the capacity to commit an offence and has the MR). Contrast:
? AG's Ref (1/75) [1975]: A added alcohol to P's drink. When P later drove he was driving over the legal limit. A's act had procured P to commit a drink-driving offence. NB: contrast this case to Blakely & Sutton v DPP --- A's spiked P's drink with the intention of stopping him driving home.
? Beatty v Gillbanks [1882]: The Salvation Army knew that their meeting in Weston Super Mare was likely to produce a violent reaction from the 'Skeleton Army' group. It happened and several shop windows were broken. The Salvation Army had not, however, procured the damage because the Ps knew what they were doing and had made an independent decision to carry out the violence. The Salvation Army were not endeavouring to produce such a reaction. Joint Enterprise (aka 'parasitic accessory liability') : Where 2+ people together embark on the commission of a criminal offence (Crime A), during which one of them goes on to commit a second offence (Crime B). The others will then be accomplices under JE to Crime B. The two parties may expressly agree to commit crime A, or this may be an unspoken understanding --- just need a common intention. Defined in Gnango as: "D1 and D2 have a common intention to commit crime A; (ii) D1, as an incident of committing crime A, commits crime B, and (iii) D2 had foreseen the possibility that he might do so." There is no need to show that D2 aided / encouraged, just that he was a party to the JE and had the MR. THE PROBLEM OF GNANGO R v Gnango [2012]
Facts: G and an unidentified man (called Bandana Man at trial) got into a gun fight. V was a passerby and was shot dead by a bullet from BM's gun. G was convicted as an accomplice, but this was overturned by the CA. Supreme Court: (6-1) uphold the conviction of G for murder, but disagree on the basis.
? Lord Phillips, Judge, and Wilson: No JE in this case because there was "no crime A and crime B." The prosecution argument was that there was a common intention to have an affray (crime A) during the course of which BM killed V (crime B) --- however, the problem is that GM and B were not acting jointly in the affray. They were fighting one another, not embarking on a JE. They argue that the case can be dealt with more straightforwardly: o (i) BM attempted to kill G; (ii) by agreeing to the shootout, G aided / abetted BM in attempted murder; (iii) BM accidentally killed V instead of G --- under the transferred malice doctrine he is guilty of murder; (iv) transferred malice equally applied to G as aider /
abettor; (v) G is guilty of murder. One issue with this is the 'victim rule' --- i.e. that D cannot aid and abet his own murder --- but they don't think the rule applies were "although the intended victim of the crime to which D was a party is D himself, the actual victim proves to be a third party."
? Lord Brown: Rejects the accessory approach, deciding that "G is liable for V's murder as principal --- a direct participant engaged by agreement in unlawful violence (like a duel, a prize


fight, or sadomasochism) specifically designed to cause and in fact causing death or serious injury." Lord Clarke: agrees with Lord Brown, but argues that an alternative basis for the decision is Pagett (police return fire, killing a girl D was using as a human shield) --- the cases are different because the police in Pagett were acting in reasonable self-defence, however "it was undoubtedly foreseeable that, if G continued shooting at BM, he would shoot back with intent to kill him or cause serious harm ... [as such] G's firing at BM was a cause of the latter shooting back." Lord Dyson: agrees with sPhillips / Judge, rejects the Pagett approach on the grounds that BM's shooting at G was a novus actus and no argument was heard on this point. Lord Kerr (dissenting): rejected the aid / abet approach on the grounds that G's actions did not amount to an intention to assist / encourage BM: "one might be alive to the very real risk that firing, if the target was not hit, would prompt return fire, but that is a significantly different thing from saying that this was encouragement to fire back. Being prepared to run a risk does not equate to encouraging an opponent to fire back at you." Also rejects the JE analysis on the basis that there was no 'plan' to commit a crime. Lastly rejects the Pagett approach: although "G's firing on B made it much more likely that B would fire again ... that is not enough to show that B was caused to fire because of G's shot."

Approaches identified by the SC:

1. JE: G + BM were jointly engaged in the crime of affray, during which BM killed V and G foresaw that BM might commit murder. This was rejected by the SC and CA because it is irrational to suggest G + BM were acting jointly in the affray --- they were fighting one another.

2. Accessory: by engaging in a gun fight with BM, G encouraged BM to fire back. BM shot at G, missed and killed V. BM was guilty of murder under transferred malice doctrine, G was guilty as an accessory. This was the approach taken by Lords Phillips, Judge, Wilson, and Dyson. Lords Brown and Clarke agreed with them.
? Problems: as Kerr points out, G could more properly be said to be trying to stop BM from shooting at him, rather than encouraging BM. Indeed, if BM had shot G, we would not say that G assisted in his own murder.

3. G as principle: G caused BM to fire back at him and thereby cause the death of V. G was liable as a principle. Lord Clarke suggested this approach as an alternative ground.
? Problems: Lord Kerr / Dyson argued that BM's shooting back was a novus actus, breaking the chain of causation.

4. G not guilty of murder: G did not assist / encourage, nor was he part of a JR, nor was he a primary. Lord Kerr took this approach --- probably the most analytically satisfying, but it seems contrary to a common sense of justice. Difficult to ascertain the basis of the case, but the best view seems to be that G was convicted as an accessory, but on a slim margin (4:3). Although the view of G as a primary gains (arguably) the support of 6 justices, the causal difficulties make it unsustainable. OMMISSIONS AND ACCOMPLICE LIABILITY Simply being at a crime scene and not acting is not enough, since the law does not impose a duty to stop a crime:

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