Accessorial liability PDF

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Accessorial liability (joint enterprise) General theory of participation 2 approaches to situations involving multiple offenders: - Inchoate liability: liability is ‘incomplete’; there is criminal liability whether or not the principle offence is committed o Attempts (s.1(1) CAA 1981) o Conspiracy (s.1 CLA 1977 and common law) - Derivative liability/complicity: one person’s liability is derived from that of another person, who commits the principle offence o Aiding, abetting, counselling or procuring (s.8 AAA 1861) + NOW: joint enterprise o Joint enterprise liability (old common law) - Note: a complex and confused area of law, driven by policy R v Jogee [2016] What is the change in R v Jogee [2016]? - Previously: D could be guilty of murder, when he foresaw that P would kill V o Joint enterprise was subject to different rules than other types of complicity - Now: D can only be found guilty of murder, when he intended that P kill V (D wanted to kill V, agreed with P killing V) - SC: ‘the introduction of the ‘foresight principle’ [in 1984] was a wrong turn’: o ‘The correct rule is that foresight is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage, which is the proper mental element for establishing secondary liability.’ Note: Jogee had his murder conviction quashed and manslaughter conviction substituted after retrial. Jogee had intended to assist or encourage Hirsi (P) to cause some harm to V and Hirsi killed V, so Jogee was convicted of manslaughter Important: Jogee [2016] vs Joint Enterprise Law Old joint enterprise law received much criticism: - JENGbA campaign group o Guilt by association? o Police ad o Targeting of BME communities o Especially young both parties will be liable for 1 and 2 - Crime 2 has to be committed in connection with crime 1, e.g. Gnango [2010] - Defendants need to have a common purpose (of committing crime 1) AR Case Law • R v Clarkson [1971] voluntary presence is capable of satisfying the AR of Aiding & Abetting. (In casu: no intent to A&A) • Du Cros v Lambourne [1907] Omission: where D has power or right to intervene. Speeding. Ct: passenger/owner has power to intervene • R v Stringer [2011]: there must be some connecting link between D’s conduct and the principal offence (but no causation). • R v Bryce [2004]: Despite time delay (12 hrs) D’s acts still provided some assistance

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R v Cogan & Leak [1976]: D procured P’s rape of D’s wife, V. P = innocent, though not an ‘innocent agent’ as rape cannot be committed through an innocent agent. (now, with SOA 2003 – lack of reasonable belief in consent?)

Mens Rea of complicity - D’s mens rea as to her own conduct o Voluntary conduct o Intent to assist the commission by P of the act which constitutes or results in the principle offence - D’s mens rea as to P’s conduct: o D must intend that P will complete the conduct element of the principle offence o D must intend or know the circumstance element of P’s offence and its result o D must intend that P act with the requisite mens rea Note: D only needs to be aware of the general type of offence – e.g. OAP – Jogee [2016] MR Conditional and Oblique Intent - Conditional intent: Jogee [2016] o Conditional intent can be enough for complicity MR o E.g. A gives P a gun, in case P needs to defend himself during commission of robbery o Slightly tricky to differentiate between this and ‘mere’ foresight - Oblique intent: o National Coal Board v Gamble [1959] obliquely intending to assist overloaded lorry driver (Woollin Test) o A must only intends to assist/encourage P in committing the offence, no need to show that A wants P to commit the offence o Only applies if A knows P will commit a crime - Weapons: If A knowns P has a weapon this can be evidence that A intended to assist P, Jogee [2016] Withdrawal from participation - A person can excuse himself from liability as an accomplice to an offence by making an effective, voluntary withdrawal before its committed - However: D may still be liable for an inchoate offence - The law takes a strict view about what constitutes an effective withdrawal. It is not enough to: o Merely repent (Bryce [2004]) o Fail to turn up at the scene of the crime (Rook [1993]) o Run away from the scene of the crime (Becerra [1975]) o O’Flaherty [2004]: the more substantial the involvement, and the closer to the moment of execution, the more effort D needs to show to withdraw - Where D assisted the principal offence: reasonable and effective steps must be taken to prevent the commission of the offence (Becerra [1975]); Graham [1996]...