Parties to a Crime

Saturday, February 27, 2010

1:51 PM
I. Introduction
A. When a crime is a group activity the problem of annotating liability and punishment arises.
1 The approach taken by English law is to make those who help in the commission of an offence "liable to be tried, indicted and punished"
as though they had committed the offence themselves.
II. Participants
A. Principal Offenders
1 Joint Principals
2 Innocent Agency- this is an exception to the rule that a "principal offender" is the one who is the most immediate cause of the actus reus
is where the defendant acts through an intermediary, who is an "innocent agent". An innocent agent:
a. Lacks capacity
i., R v Michael(1840)
Here the defendant wished to kill her baby – gave poison to the nurse – telling her it was medicine for the nurse to
administer. Nurse decided not to administer it – left it on the shelf- a child then administered it to the baby- who died.
The child and nurse would both seen as “innocent agents".
b. lacks mens rea and is unaware of the criminal nature of his acts.
i., R v. Cogan and Leak
→ L persuaded C to have sexual intercourse with Mrs L, telling him that she liked being forced to have sex against her will,
and that if she struggled it was merely evidence of her enjoyment. C was convicted of rape but appealed successfully
against his conviction on the basis that he had honestly thought she was consenting to sexual intercourse. L appealed
against his conviction for aiding and abetting the rape, on the basis that if the principal had been acquitted, there was
no offence to which he could have been an accomplice.
→ In dismissing the appeal, the Court of Appeal held that the actus reus of rape had been committed by C in that Mrs L
had been forced to submit to sexual intercourse without her consent. L had known that she was not consenting, and
thus had the necessary mens rea to be an accomplice. Alternatively, the court was willing to view C as an innocent agent
through whom L had committed the offence of rape.
B. Secondary Parties
1 Accomplice/ Accessories
a. Actus Reus
i., Aiding
→ In Attorney-General's Reference (No 1 of 1975) [1975] QB 773, it was stated that:
(i) The natural meaning of "to aid" is to "give help, support or assistance to".
(ii) Aiding generally takes place at the scene of the crime and includes giving someone some equipment or
information which helps them to commit the crime.
(iii) It is not necessary to prove agreement or consensus between the principal offender and the person charged with
aiding the commission of the offence.
(iv) Nor is it necessary to show that the assistance was essential to the commission of the crime as long as it was of
some help.
→ Many cases of aiding will involve the parties meeting so the assistance can be provided but there need be no meeting
as the principal need not even be aware that he has been assisted.
ii., Abetting
→ The natural meaning of "to abet" is "to incite, instigate or encourage".
→ Abetting is committed by an accomplice who is at the scene of the crime when it is committed.
→ Abetting is said to imply some consensus between the principal and the abettor.
iii., Procuring
→ Lord Widgery CJ opined:
> "To procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking
the appropriate steps to produce that happening".
> * Consensus between the procurer and the principal offender need not be established.
→ Procuring requires proof of a causal link between the procuring by the secondary party and the commission of the
offence by the principal offender. See:
> Attorney-General's Reference (No 1 of 1975).
- Here B added alcohol to A’s drink. When A later drove he was driving with a blood alcohol level higher than
the prescribed limit. B’s act had procured A to commit a drink-driving offence.
> See Also R v Millward [1994] Crim LR 527 ad cf Beatty v Gillbanks (1882) 9 QBD 308
iv., Counseling
→ Counsel may be defined as "to encourage, incite or instigate". This may involve urging someone to commit an offence or
simply indicating that the commission of the offence may be desirable.
→ Counselling normally refers to help given before the commission of a crime and may take the form of advice,
information, encouragement or the supply of equipment etc.
→ Counselling implies consensus between the person charged as a principal offender and the counsellor.
→ It is not necessary to establish a causal link between the counselling and the commission of the full offence. However,
the offence committed must have been within the scope of the counselling. See: R v Calhaem [1985] QB 808.
v., NB...
→ At Common Law there are the offences of accessory before and after the fact.
> An Accessory before the fact was one who though absent at the time the crime was committed, did still, procure,
counsel, command or abet another to commit the felony. MacDaniel’s Case 19 St.Tr. 745
> If the party on the other hand was present when the crime was committed he was an aider and abettor. R v
Gordon 1 Leach 515
b. Liability
i., Presence at the Scene of the Crime
ii., Participation by Inactivity

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 ii., Participation by Inactivity
c. Mens Rea
i., The mens rea required on the part of a secondary party is that it is the intention to do the acts of assistance or
encouragement which must be proved, and not the mens rea of the offence committed (or that of the principal); as held in
National Coal Board v Gamble.
d. Causation
C. Joint Enterprise
1 Introduction
a. Joint enterprise is a term used in criminal law to refer to "the participation of two or more persons in a criminal activity" (LB Curzon,
Dictionary of Law, 1994, p206).
b. In being a joint enterprise, the parties must all have a common purpose (or common design); where it must be proved that they
shared a common intention and each knows that the other intends the same thing. See:
i., R v Petters and Parfit, where the agreement was gauged from conduct. The common purpose here is the robbery of the
jewelry store.
2 Accidental Departure from Common Design-
a. there is a general rule that an accomplice will be liable for all the “accidental” or “unforeseen” consequences that flow fro m the
common joint enterprise, or “common design” being carried out.
i., R v Stewart and Schofield:
→ three men were charged with the murder of a shopkeeper. A had suggested that they should rob him in the shop and
armed herself with a knife for this purpose. B armed himself with an iron bar and C kept watch outside the premises. B
beat the shopkeeper to death with the iron bar and pleaded guilty to murder and robbery. The trial judge told the jury
that they could convict the defendants of manslaughter if they found that they foresaw that B would or might use some
violence, albeit not serious. The defendants were convicted of manslaughter. Upon appeal it was held that in the light of
R v Smith and R v Betty, a party to a joint enterprise who was charged with murder, could only escape liability for
manslaughter (in cases where the principal offender was convicted of the murder), if the killing was not actually
committed in the course of the joint enterprise - a question of fact not law. In arriving at its conclusion the court
acknowledged the conflict of authority on this point.
3 Deliberate Departure from Common Design-
a. where the principal deliberately departs from the common design, by doing what was not authorized or agree upon, then he alon e
will be liable for the resultant consequences and the accomplice accomplices will cease to be a party to his actions.
i., Anderson and Morris
→ Here, it was held by the Court of Appeal that where two persons embark on a joint enterprise, each is liable criminally
for acts done in pursuance of the joint enterprise, including unusual consequences; but if one of them goes beyond
what has been tacitly agreed as part of the joint enterprise, the other is not liable for the consequence of the
unauthorized act. M's conviction was quashed. It was held that the use of the knife was not agreed upon. However, if
the victim had died from a punch thrown by A, M would have been an accomplice to manslaughter.
4 Withdrawal
a. Where one person has counselled another to commit a crime, or is present aiding the other in the commission of it, it may be
possible for the secondary party to escape liability by withdrawal before the principal goes on to commit the crime.
b. However, mere repentance without any action clearly leaves the accomplice liable. What is effective withdrawal will depend on the
mode of the accomplice's participation in the contemplated offence, and is for the jury to decide.
i., The overarching test is that the communication of withdrawal must “serve unequivocal notice upon the other party to the
common unlawful cause that if he proceeds upon it he does so without further assistance of those who withdraw.” ( R v
Becerra and Cooper)
c. It should also be noted that:
i., If an accomplice only advised or encouraged the principal to commit the crime he must at least communicate his withdrawal
to the other parties.
→ R v Rook [1993] 2 All ER 955.
Rook and Armstrong were hired by a husband to kill his wife. They were paid. Rook recruited Leivers to assist. The
four men met to plan the killing. On the appointed day Rook couldn’t be found. The husband drove the wife to the
appointed site and Leivers killed her. Rook stated at his trial that he never intended to kill the wife as his plan was
to take the money and disappear. Convicted of murder and appealed.
Appeal Dismissed
The Court found that the Appellant never told the others that he was not going ahead with the crime and his
absence on the day could not possibly amount to unequivocal communication of his withdrawal.
NB> that even where the defence of withdrawal succeeds D may still be guilty of incitement and conspiracy.
*The rules seems to be slightly different in the case of spontaneous attack or commission of a crime.
→ R v Mitchell
Here a fight involving 6 persons broke out at a restaurant and some persons on one side beat the victim who was
left prostrate and left, however one of the group returned and beat the victim further.
The Court held that where a group simply spontaneously attacks someone, it is sufficient to withdraw, that is
simply to walk away; there is no need to communicate a withdrawal.
NB. In R v Robson a 2000 decision stated that Mitchell should be restricted to the facts of its case and in
particular, the fact that the return of the participant could be seen as starting a new attack.
ii., Where an accomplice has supplied the principal with the means of committing the crime, the accomplice must arguably
neutralise, or at least take all reasonable steps to neutralise, the aid he has given. It may be that an effective withdrawal can
be made more easily at the preparatory stage than when the crime is in the course of commission, in which case the only
effective withdrawal may be physical intervention.
→ R v Becerra and Cooper (1975) 62 Cr App R 212
> Facts- The victim was killed in the course of a burglary. The appellant provided the knife shortly before the
murder. The Court held that the appellant’s sudden departure from the scene with the words “ Come on lets go”
was an insufficient communication of the withdrawal. So the appellant’s conviction as a secondary party to
murder was upheld

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