Secondary Participation Notes

S U P SECONDARY E R V I PARTICIPATION Others participate in the commission of a crime, without directly perpetrating the actus reus they are parties to the offence. It is derivative liability, imposed by reference to the commission of a substantive offence. The modes of participation are as follows: - a principal - a secondary party either through: a. aiding, abetting, counselling and procuring b. through membership of a joint enterprise which led to that offence the principal Can be more than one person e.g. if D and Q jointly batter V to death = joint principals. Or, each may satisfy some part of the actus reus, which makes them joint principals, where their actions in combination fulfil the whole actus reus. There must be contribution to the actus reus before one is a principal. innocent agents The person who is the most immediate cause of the actus reus but either i) lacks mens rea or ii) has mens rea but is not criminally responsible for their conduct e.g. insane. Where D uses an innocent agent, their conduct is disregarded and D is held liable as the principal e.g. Michael [1840] e.g. Tyler and Price [1838] one person committed murder, thinking he was the saviour of the world and it was his obligation to kill police - he was criminally insane and the person controlling him was the principal. Any crime on causation of harm can be committed through an innocent agent e.g. A asks B to do an act which results in the death of V - B is the innocent agent. If the essence of the crime is behaviour it cannot be committed through an innocent agent e.g. rape - the actus reus is sex and you can't have sex through someone else. Law Commission proposals - wanted to simplify and extend the doctrine of innocent agency to apply to i) anyone under 10 ii) anyone insane and iii) anyone without the fault for the offence. S I O N 7 Accessory Where P has committed a substantive offence, it is possible to convict someone else of being complicit in the crime. Provided by s. 8 of the Accessories and Abettors Act 1861 - aiding, abetting, counselling and procuring. Held in A-G's Reference (No.1 of 1975) that these 4 actus reus elements should be given their ordinary meaning. It is not required that P be aware of S's actions, provided S does actually assist her. e.g. P plans to kill V, the day before, S notices P's gun is missing so secretly replaces it with her own - S is guilty of being an accessory to murder if P then goes to kill V. actus reus Aiding - S aids by assisting, helping or giving support to P in the commission of an offence. There must be actual assistance but it need not be substantial e.g. T acts as a lookout, he is party even if he never gives an actual warning. Abetting - typically associated with encouragement, but overlaps hugely e.g. where S pledged to assist P by acting as a lookout and P relies on S's pledge, the reliance itself may be enough encouragement for P to be abetted, whether or not 'aiding' is satisfied. The encouragement could be by words; nodding one's head. Also mere presence can supply encouragement if it supplies an incentive to go ahead e.g. Coney [1882] were presence at an illegal prize fight was held to be evidence of abetting battery by the fighters. However, presence alone without encouragement is not sufficient, held in Clarkson [1971] that where 2 soldiers found other soldiers raping a young woman and stayed to watch but did nothing else and said nothing, but there was no intention by them to encourage. Therefore something additional is usually required by S to support P's conduct. Counselling - provision of advice or information; urging someone to commit an offence. Overlaps substantially with others - counselling could also constitute the inchoate offence of assisting or encouraging. Procuring - contrast with others, procurement of an offence requires the secondary party to deliberately influence or induce the principal to commit the offence. Held in A-G's Reference (No.1 of 1975) that the perpetration of the principal crime must be as a consequence of S's procurement e.g. in that case, S secretly laced P's drinks with alcohol and he was convicted of drink driving. S U P E R V There must be a sufficient connection between S's actions and P's committing of the crime - it is not an inchoate in the sense that it relies on culpability but on S's actual participation. Calhaem [1985] - S had hired P to murder his rival, V. It was said that P, after having second thoughts, had decided not to kill V but went to V's house in order to act out a pretence so that both S and V would believe he had tried to kill V, However, after V screamed, P went 'beserk' and killed V by hitting her on the head with a hammer - upheld S's conviction for counselling murder; since P acted in accordance with S's advice. Omissions: S can aid or abet by omission; e.g. S fails to discharge a legal duty which then assists P to commit an offence. Submitted in Webster [2006] that where S has i) a legal duty and ii) the present ability to intervene, and does not do so, they are guilty of aiding, whether or not P knew of S's decision to refrain from doing their duty. Could be argued that this failure constitutes homicide on its own anyway (e.g. Pittwood; Evans etc...) What if a stranger happens upon a crime and remains to watch? Insufficient to make S a party to the crime - shown in Clarkson [1971]. A failure to intervene without a legal duty to do so does not amount to aiding or abetting. Difficulty arises where S is not under a duty but has specific legal power to control P's activites e.g. Du Cros v Lambourne [1907] S was the owner of a car that had been driven dangerously, but it was unclear who was driving at the time. Nonetheless, S was convicted of being a party to dangerous driving, and it was irrelevant who was driving. Regarded in Webster that failure to exercise a legal power (not duty) over someone may be enough to constitute participation. What if D lives with E who keeps a contraband on the premises? While a cohabitee may have the power to demand its removal, the courts held that D must do more than merely acquiese e.g. Bland where D lived with a drug dealer, her conviction as an accomplice was quashed notwithstanding that she knew about his activites. Where D has a supervisory role e.g. bank manager/driving instructor, it was held in Tuck v Robson that an omission to intervene was enough to constitute liability. I S I O N 7 If S has no duty or any particular power, she must intend for her nonintervention to encourage P and this inaction must actually encourage P. mens rea S must intent to participate in the crime committed by P - this relates to 2 different matters: i. S must intend his own contribution (to aid/abet/counsel/procure); and ii. S must appreciate the nature of P's actions. That is, S must know or foresee the essential matters relating to P's actions which make those actions an offence. S's contribution - must intend the action to encourage, not necessarily intend the final commission of the offence, but he must intend to encourage. Recklessness will not suffice. Duress or necessity? - Suppose S aids P out of some further reason e.g. fear - appears to be the defence of duress or necessity, but occasionally the courts have treated this as vitiating S's intention to aid e.g. Gillick where a doctor who gave contraceptives to a girl under 16, despite this assisting the crime of underage sex, would lack intent to aid unlawful intercourse. Similarly in Fretwell, S reluctantly supplied a abortifacient to a woman who threatened to kill herself if he didn't, and P took the drug and died. S was not guilty of being an accessory to murder because he was so unwilling that P take the drug. However, at the time, duress did not apply to these offences and so denying mens rea was the only viable option. Performance of duty? - NCB v Gamble if P already owns something possessed by S, then by handing the item back, S simply peforms a legal duty to deliver the goods. However, P does not yet own it, and S knows he intends to use it to commit a crime and then he gives it to him, S is an accessory. e.g. Lomas S possesses P's crowbar, P asks for it back and S gives it back. P then uses it to commit a burglary, S was held to not be party to the crime since it was a legal obligation to give the thing back. However, a shopkeeper who sells a crowbar to P, knowing his criminal pupose, does commit aiding/abetting. ! However, the obligation to hand something over is a civil duty not a legal one and if S still intends to assist, she is guilty. 

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