Participation (AL&JE) - Lecture 12 PDF

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Summary

The liability of parties who participate in the criminal acts of others can be split into four parts; those who are accessories, those who are joint perpetrators, those vicariously liable, and those who are corporations.Principal: He has committed a crime, and this is the principal offence. His liab...

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Participation: Accessorial Liability & JE 2013 The liability of parties who participate in the criminal acts of others can be split into four parts; those who are accessories, those who are joint perpetrators, those vicariously liable, and those who are corporations. Principal: He has committed a crime, and this is the principal offence. His liability for the offence does not concern us, but we do need to be aware of what the principal offence is because the liability of the accessories is for the same offence. Accessory: He has aided, abetted, counselled, or procured the principal offence. His liability for the principal offence does concern us. Joint Venturer: He has joined in the principal offence with P. Where the plan is fulfilled, P and JV are each convicted of the principal offence, and the matter is simple. But the law is more complex where P has departed from the agreed plan. What then of JV’s liability? Corporation: Where an employee has committed a criminal offence a can the employer or corporation be liable (as well as P, or instead of P) for that crime? (you must always identify the principal offence P has committed, who brings about the AR, as the criminal liability of the others depends on it) Accessorial Liability:   

Principal offender – the person who commits the AR of an offence with the appropriate MR. There could be more than one principal offender (joint enterprise). D can be a principal even if another person actually performs the AR. See: Michael [1840].

Secondary Parties: AR: The Accessories and Abettors Act 1861 S. 8 ‘whosoever shall aid, abet, counsel or procure the commission of an offence … Shall be liable to be tried, indicted and punished as a principal offender’. R v Bryce [2004] – All four words (aid, abet, counselled, procured) should be used in the particulars to avoid wrongful acquittals arising from any technicality in the words used. Actus Reus: 1. Procuring – to produce by endeavour. See: AG ref (no 1 of 1975). Lord Widgery CJ held:

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Participation: Accessorial Liability & JE 2013 ‘…you procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening…’ 2. Aiding – to give help, support, assistance to the principal offender before or at the times of the commission of the offence. See: Tuck v Robson [1970]. i. Supplying materials/tools. See: Thambiah v R [1996] ii. Holding down a V in assault. See: R v Clarkson [1971] iii. No need for causation. See: R v Bryce [2004] 3. Counselling – the giving of advice or encouragement. This is usually done before the crime and the counsellor is not present at the scene. There is no need to prove the counselling caused the offence (Giannetto [1997]). See: Calhaem [1985] However: the act done must be within the scope of the advice and the principal offender must know of the counselling. 4. Abetting – instigating, inciting or encouraging a principal offender to commit the offence at the time it is committed. See: Wilcox v Jeffery [1951]. i. Mere presence not always sufficient to amount to encouragement. See: R v Clarkson [1971] ii. Failure to prevent an offence could give rise to accessory liability. See: Du Cross v Lambourne [1907] Mens Rea: A intentionally assists P + A knows his assistance is for P to commit a crime (the principal offence) + A knows there is a real possibility that P might commit the crime (foresees) ___________________________________________________________________________ 1. It is necessary to show firstly that the act which constitutes the aiding, abetting etc… was done intentionally in the sense of deliberately and not accidently and secondly that the accused knew it to be an act capable of assisting or encouraging the crime – R v Bryce [2004]. 2. D must have foreseen that there was a ‘a real possibility’, or ‘a real or substantial risk’ that the principal might commit the offence. The motive is irrelevant – Lynch v DPP [1975]

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Participation: Accessorial Liability & JE 2013 Intentionally assisting P: This is best explained by Gamble [1959] – The crime of aiding and abetting was committed on proof of positive assistance voluntarily done, and knowledge of the circumstances constitution the offence. Foresight of the commission of the principal offence: Chan-Wing Sui [1985] – A’s liability ‘turns on contemplation. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight.’ Foresight of:  That P might commit an offence of the type actually committed by P ( Bainbridge [1960])  That P might commit an offence within a range of a limited number of crimes that A contemplated P might commit (Maxwell [1978])

Derivative Liability: A’s criminal liability depends on proof that the principal crime occurred, or at least the AR of the principal offence. See: Thornton v Mitchell [1940]. If the AR of the principal offence is satisfied, A may be convicted of aiding it, even if P is not. See: Cogan and Leak [1976] and Millward [1994]. If P is not guilty because he has a defence, A may still be guilty (Bourne [1952]). It is possible for A to be liable for a different offence from P, provided the offences have a shared AR (Howe [1987]). Joint Enterprise/ Joint Venture Liability: JE is where two or more people are committing a crime together. If A and JV agree to commit crime X, and they commit crime X, each is guilty of crime X and we do not have to be concerned with this any further. However, if A and JV agree to commit crime X, but JV departs from the plan and commits crime Y, is A liable for crime Y? Powell and English [1999] – The question is what act A foresaw JV might commit. If JV committed an act which was fundamentally different from that which they jointly contemplated, he could not be guilty of murder or manslaughter unless the weapon used was just as dangerous as that which was contemplated. See: Yemoh [2009]. Rahman [2008] – A can be liable for murder if JV killed and A foresaw JV might kill either with intent to kill or intent to cause GBH.

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Participation: Accessorial Liability & JE 2013 Liability for a lesser offence: If A foresaw a fundamentally different act, he is not guilty of the principal crime, but he can not necessarily escape liability for his own acts. As we saw above, A might be convicted of a lesser crime if A satisfies the AR and MR of that crime as an individual (so A is now P of the other crime and not A to the principal crime). See: Day [2001]. Mens Rea: 1. Liability for unforeseen consequences arising from the agreed acts. Baldessare [1930] – Each D is equally liable 2. Liability for other acts of the principal. See: Hyde [1991]

Withdrawal: According to English law, D can avoid liability for a crime if he withdraws from the enterprise before the crime takes place, provided he communicates the withdrawal to his associates, so that they know that they are now proceeding alone. See: R v Beccara [1997] – what constitutes sufficient communication. Whitefield [1984] – He had served unequivocal notice on the others of withdrawing his aid and assistance. The more A has contributed to the plan, the more he has to withdraw. Rook [1993] – Simply not turning up was not enough Mitchell [1999] – If the JV was spontaneous, the withdrawal can be too Robinsons [2000] – Unless A initiated the venture, then he would have to do rather more R v O’Flaherty [2004] – Simply not showing up is not enough. D must communicate his withdrawal to those involved in enterprise with him.

Vicarious Liability: The criminal law has recognised some VL. It is limited to statutory crimes and is wholly a matter of statutory construction. See: Coppen v Moore [1898] , Harrow LBC v Shah [2000], Allen v Whitehead [1930], and Vane v Yiannopoullos [1965] (criticisms of doctrine). Corporate Liability:

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Participation: Accessorial Liability & JE 2013 A corporation is an artificial legal person. The answer is to apply the ‘identification doctrine’ as explained in Bolton v Graham [1957]. See: Tesco v Nattrass [1972] (difficulty encountered of who might amount to the ‘directing mind’ should illustrate the complexity of the test. There are certain crimes that a corporation cannot commit such as murder or rape; however, a corporation may commit manslaughter. Manslaughter by a corporation is now governed by the Corporate Manslaughter and Corporate Homicide Act 2007.

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