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Leave your chair neatly under the desk when leaving. 1

Parties to a Crime

• Chapter 12 of ‘Criminal Law’ by Diana Roe

• Referred to by OCR as ‘Participation’.

PRECIS NOTES WILL BE CHECKED

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Parties to a Crime• In some cases more than one person

will be involved in a crime.• If two people jointly rob a bank they

commit the offence together and are joint principals.

• However, if say I rob the bank and a student stays in the car to drive me away – the student would be a secondary offender.

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Parties to a Crime• Secondary offenders can also be referred to as

an accessory or an accomplice. Some old cases even class such an offender as a principal in the second degree.

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• Under s8 Accessories and Abettors Act 1861 (as amended by the Criminal Law Act 1967)…

• ‘Whosoever shall aid, abet, counsel and procure the commission of an indictable offence … shall be liable to be tried, indicted and punished as a principal offender.’

Example of Bentley in the film ‘Let Him Have it!’

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• Under s44 Magistrates Courts Act 1980 the same approach is taken with regard to summary offences.

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Issues …• Despite such a legal position it can still be

important to distinguish between principle offenders and accomplices.

1.It can be important for sentencing purposes.

2.The actus reus and mens rea of secondary offences is different.

3.For strict liability cases mens rea is still needed for secondary offenders. 7

The Principal Offender

• The test to decide whether an offender is a principal or secondary offender is to discover whether her/his/ act is the most immediate cause of the actus reus or whether s/he is merely helping the cause to be affected.

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Innocent Agents• Can anyone give an example of an

innocent agent?• Suppose that D send a bomb in the

post to V and Postman Pat delivers the bomb – is s/he the principal offender or an innocent agent?

• What would D be treated as in Court?

Answer = Principal

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Under s50 Children and Young Persons Act 1933 (as amended) children under 10 are considered to be doli incapax

Under the Crime and Disorder Act 1998 children between 10 and 14 are now held to be criminally liable for their actions.

Children and participation

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The Different Types of Secondary Offender

• As per the Accessories and Abettors Act 1861 secondary offenders are those who aid, abet, counsel or procure the commission of a crime.

To aid – interpreted as ‘to give help, support or assistance’. Think of an example …

To abet – is to ‘encourage, incite or instigate’. This is normally at or near the scene of the crime (unlike counsel which takes place before the crime). 11

Aid and abet case law• Aid and abet implies some sort of action.

• In Bland [1988] the court decided that merely living with a drug’s dealer and perhaps having knowledge of his activities was not enough to incur liability. A more active involvement is required

Compare this with Wilcox v Jeffrey [1951] and Tuck v Robson [1970] 12

To counsel or procure• An example of counselling can be seen in the

case of Calaem 1985. Likewise, AG’s Reference No 1 of 1975 explains how procure was held to mean ‘to produce by endeavour’.

Break into Law Firms and undertake the Participation Problem Scenario.

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Summary of the issues• A secondary offender can be charged with all

four types of secondary participation.

• i.e. Aiding, abetting, counselling and procuring.

• S/he can be found guilty if just one is satisfied.

Normally, the accomplice will counsel and procure before a crime is committed and aid and abet during the course of an offence.

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The actus reus of participation• A passive presence at the scene would not, on

its own, be enough to constitute liability.

In Clarkson [1971] the conviction of two soldiers for abetting a rape was quashed because they had not participated in any way.

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Answer the below question …• Question for Students: Can an accomplice

withdraw without incurring liability?

The Answer: Can be found in the cases of Whitehouse [1941], Becerra and Cooper [1975], Baker [1994] and

Mitchell & King [1999].

Students are asked to write up these case notes and then give an answer in written form to the above question (to be marked in class). 16

The mens rea of secondary offenders

• Two things need to be shown

2. S/he intended to aid, abet, counsel or procure the principal

offender

1. That the accomplice had knowledge of the type of crime to

be committed.

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Knowledge that a crime is to be committed

• In Johnson v Youden and Others [1950] it was stated that before D can be convicted of aiding and abetting a criminal offence ‘he must know at least the essential matters which constitute the offence’.

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Recklessness or Negligence?• The law seems to be undecided so far as D

being liable if s/he is merely reckless about whether a crime is committed.

In Blakely, Sutton v DPP [1991] there was a clear rejection of Caldwell recklessness

Likewise in Callow v Tillstone [1900] liability due to negligence is not sufficient.

In class - students should produce notes on these cases.

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Intention to aid, abet, counsel or procure …

• In addition to knowledge that a crime will be committed, the prosecution must also prove the accomplice intended to do the acts that assisted or encouraged the commission of the crime.

• See National Coal Board v Gamble [1959].

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Joint Enterprise …

• For the next class, students should précis 12.7.4 of Criminal Law by Diana Roe.(page 254) - producing case notes as necessary.

When completed - give the notes to your Laws Tutor

who will briefly examine or mark your notes.

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Is motive relevant

• In class and in writing, students should undertake the Gillick contraception precis exercise

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Assistance after the crime

• Only assistance before or during a crime can render a person liable as an accomplice.

However, you can commit a crime if you help someone after a crime has been committed (think of some examples).

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Can a secondary offender be convicted if the principal is acquitted?

• Yes, provided the actus reus has been committed . In Bourne [1952] a man forced his wife to have sexual intercourse with a dog. She was not charged with a criminal offence – but her husband was convicted of aiding and abetting an illegal act.

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Problem areas• See also Cogan and Leak [1976] in which a

man was found guilty of procuring the rape of his wife by a friend.

• A possible expansion of the law was seen in Millward [1994]

Look at Millward [1994] and the earlier case of Thornton v

Mitchell [1940] (see textbook) – why the difference?

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Different offences• The liability of the secondary offender for a

different offence to that of the principal offender is possible, provided both offences share the same actus reus (Dunbar [1988]).

Example ... Murder and Manslaughter

What happened in Tyrell [1894] and why was the accomplice not charged and convicted?

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‘Review and Reform’ an important exam element

• Students should plan the following essay (it is in the homework schedule)…

• ‘The reform of the law relating to secondary offenders is long overdue. Please explain and discuss.’

Produce a collective essay plan..

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Activity and Self-assessment

• In class, undertake the activity on page 256 and the self-assessment questions on page 259 of ‘Criminal Law’ by Diana Roe (3rd edition).

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Important Participation Cases.

• Working in Law firms of three, produce a written list of what you agree are the six most important participation law cases (including joint enterprise cases) and explain why they are so important.

• For homework - update your notes on those 6 cases from a ‘Criminal Law Cases and Materials Book’ (give to your Law Tutor within 7 days)..

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For revision• You must understand all the core

principles and know the case law inside out.

• Copy the Key Facts table on page 257 of ‘Criminal Law’ (3rd edition).

• Reform will be an essential element – so you MUST read up on reform of this area.

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