(Crim.N) Tutorial 7 Notes (Secondary Liability 1 Accessories and Abettors Act 1861 s8 Offences) PDF

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This is a good summary of all the cases, and also includes the textbook summary. ...

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Section 1 – Accessories and Abettors Act 1861 s8 Offences Actus Reus Aiding Definition   

The word is typically (also applies to others) to be given its regular meaning o AG’s Reference (No. 1 of 1975) [1975] QB 773 per Lord Widgery CJ S aids P by assisting, helping, or giving support to P in the commission of a crime o Bainbridge [1960] 1 QB 129 There must be actual assistance, however it need not be sine qua non

Exclusions  

Assistance need not be at the scene of the offence o Blakely v DPP [1991] RTR 405 P need not be aware of the assistance o Fury [2006] EWCA Crim 1258

Abetting Definition  

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Typically associated with encouragement o Clarkson [1971] 3 All ER 344 Whether P’s actions constitute encouragement is always a matter of fact o Stringer [2011] EWCA Crim 1396 o May be by words or conduct; indeed mere presence is in cases enough (cf. Coney (1882) 8 QBD 534) Example case law – o Presence (presence can encourage): Coney o Presence (presence needs to be shown to have in fact encouraged): Clarkson o Joining P in chasing V to encourage violence: Stringer Due to requirement of encouragement in fact, can not be done without P’s knowledge

Counseling Definition 

Two common meanings o Provision of advice or information (cf. AG v Able [1984] QB 795) o Urging the commission of an offence (Calhaem [1985] QB 808)

Procuring Definition  

Inducing the commission of an offence Requires greater connection between S and the commission

Common elements to secondary liability (conduct)

Connection to the principal offence 

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“Forgotten advice” or other similar cases where S’s act is no longer in any way acting on P removes them from the ambit of secondary liability o AG v Able P must act within the scope of what S has provided o Cf. Calhaem

Omissions 

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S may aid or abet and offence by omission, but not counsel of procure (e.g., a security guard intentionally leaving a door unlocked) o This may be done without a duty to act or a legal power to act, however there must be intent to aid or abet as well as an aiding or abetting in fact Where S has both a legal duty to intervene as well as the power to intervene, omitting to do so will ipso facto attract secondary liability It is uncertain whether (as in Du Cros v Lambourne [1907] 1 KB 40) a legal power to intervene will also ipso facto attract secondary liability o Webster [2006] EWCA Crim 314 treated Du Cros as authority for this position, however the judgments in the latter case were in fact equivocal on the matter o Similarly in McNamara and Bland convictions were quashed as they rested solely on a failure to exercise a legal power

Mens rea Summary of elements  

S must intend his contribution, and S must appreciate the nature of P’s actions

S’s intent of his own contribution 

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The issue is not whether S intended the commission of the ultimate offence, but S intended his own relevant act o Bryce [2004] EWCA Crim 1231 o This is not true for procurement, which has a tighter connection between secondary liability and the principal offence A legal duty to certain conduct (such as returning borrowed property) negates intent to inter alia aid (cf. Lomas and NCB v Gamble)

S’s awareness of P’s actions 

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The defendant “must at least know the essential matters which constitute [the principal] offence” o Johnson v Youden [1950] 1 KB 544 Knowledge requirements found in inter alia Webster and Churchill [1967] 2 AC 224 o However Carter v Richardson [1974] RTR 314 has dicta implying that recklessness is sufficient, as does inter alia Rook and Bryce The scope of “essential matters” o S need not know all the details, such as time and place (cf. Bainbridge [1960] 1 QB 129) o S must foresee either the type of offence committed (Ibid.) or a list of possible offences (cf. Maxwell)  The latter condition applies even if S foresaw a more severe offence, and in fact a lesser one occurred o S must foresee that P will act with the required mens rea as well (cf. A, B, C, and D [2010] EWCA Crim 1622)

Evaluation Mens rea considerations 

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In the past defences such as duress or necessity negated intention to aid (cf. Gillick), but this in part due to an outdated legal fiction that denied to full defence of duress etc. to secondary liability – it is probably no longer applicable o S&S agrees, as this better describes the mental states of the defendants S&S disagrees with the legal duty to conduct negating intent Williams argues that there should be a mens rea exceptions for selling goods when reckless as to criminal purpose; S&S disagrees Broadening of secondary liability to reduce the knowledge requirement is bad o Fundamental difference between secondary and principal liability...