Secondary Liability L12 PDF

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Secondary Liability...

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Criminal Law and Justice

Lecture 12

07/12/2018

Secondary Liability Complicity Parties to a Crime The law of Accessory Liability Introduction Thus far we have considered liability in individual terms o Duncan intended to kill his wife Jane. On 28th August, Duncan tied a cord across the top of the staircase … Or, how individuals’ intent can be shifted o Transferred malice Or, how an individual’s liability may be affected by another’s actions o Novus actus interveniens This observation is not controversial and is nicely made in R v Rahman & Ors [2008] The Courts said “In the ordinary way a defendant is criminally liable for offences which he personally is shown to have committed.” Yet they go on to add … “But … [o]thers may be involved, directly or indirectly in the commission of a crime although they are not the primary offenders. Any coherent criminal law must develop a theory of accessory liability which will embrace those whose responsibility merits conviction and punishment even though they were not the primary offenders.” R v Rahman o o o o o o

A simmering feud escalates on this day Up to 19 men in two groups chase V and friend through streets and laneways Weapons include baseball bats, cricket bat, a scaffolding pole, metal bar, table leg, wood V is cornered and beaten (est. < 1min), police arrive, most flee V dies of two heavily inflicted stab wounds Killer is never identified

What to do? How can others be liable if no killer? What might they be liable for?  Running in a mob?  Brandishing weapons in public?  Failing to aid V when he was being beaten? How can the criminal law do justice to V and his family?  How can liability for his death be apportioned in a just fashion?

Criminal Law and Justice

Lecture 12

07/12/2018

Basic principles of secondary liability The key distinction is between (i) principals (P) or co-principals; and (ii) accessories (D) The common law of secondary liability was codified in the Accessories and Abettors Act 1861  s.8 is starting point  Follows common law principle that accessories become guilty of the primary offence- full offence not part of an offence e.g. an accessory to murder you are liable for murder- it is not a separate offence it is a way of committing the offence  Summary offences dealt with similarly under Magistrates Court Act 1980 s.44 The offence concerned must be completed (cf. inchoate offences- offences that are planned, intended, attempted but not completed) The crime of being an accessory is not a distinct offence. Rather it joins accessory (D) to the principle (P) and her offence even if that principle is unknown  It is not necessary that P be convicted or even identified  It makes D liable for P’s acts and intentions (within limits)  It allows distribution of AR elements (or is disinterested to their actual distribution) between parties to an offence  It creates complex law because AR and MR of both D and P must be considered e.g. shop robbery it does not matter who kicked the door in and who robbed the money from the till, both are co-principles and the law is essentially disinterested in who did what. It is complex because more needs to be considered in who knew / foresaw what. Must everyone intent everything? Can the accomplice who had a broad sense on what will go on but no intention be liable for what happened for the person who did have the intention but is not found. ____________

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Imagine the scene where V is taking a beating behind the houses o The armed mob has separated out o Some are doing the beating o Some are blocking the exits o Some are standing watch to warn of police arriving If V dies, what must we prove in order to make the watch-men, for example, liable for the death? o Murder is a difficult case: MR may consist of either intention to kill or intention to do really serious harm Adding more complexity…   

What if a shopkeeper had phoned one of the men saying only ‘I’ve seen V, he’s walking past my shop’? What if the risk of really serious harm had sickened one man and he had phoned the police to alert them, then run away? What if one man had a change of mind and ‘participated’ in the bashing to do his best to protect V?

Criminal Law and Justice

Lecture 12

07/12/2018

Structure of the English Law of secondary liability Liability falls to: 1. Principals or co-principals offenders  She who completes the AR and MR of the offence; or  They (co-principals) who together commit the AR and hold the MR for the offence 2. Principals via the doctrine of innocent agency  If D encourages P to kill and P does so with requisite MR, D did not cause the death (novus actus …) >> hence need for theory of secondary liability to make D liable too  But if D encourages P to commit a crime and P is an innocent party then D did cause the crime and not P  Innocents include: children, animals and those of legally unsound mind 3. As accessory/secondary party to the crime  In English law an accessory under s.8 A&A Act 1861 becomes guilty of the principal crime >> with exceptions, accessorial liability is full liability, though culpability (reflected at sentencing) may differ  D is an accessory if she aids, abets, counsels or procures P to conduct and complete an offence and P does so intentionally  Exceptions are statutory creations and include: o where P fails to commit the crime – Serious Crime Act 2007 o where encouragement or assistance are constructed as distinct offences – Suicide Act 1961 s.2 4. As a participant in a joint enterprise  Where D is party to a joint enterprise (eg., a burglary, buying drugs, bashing a rival)  And P commits an additional offence with the relevant MR (eg., during a burglary P kills the home owner)  D becomes liable for the additional offence, if that offence falls within a ‘common purpose’  If, in other words, it can be shown that the additional offence fell within the scope of contemplated events, even if it was not the primary purpose of the enterprise e.g. friend agreement to go buy drugs, kills the dealer, should you be liable for it?? - buying drugs is a common purpose but how different or unrelated does the act have to be to sever liability of the crime Varieties of acces sory Accessories and Abettors Act 1861 s.8 identifies four distinct forms of accessorial liability: “Whosoever shall aid, abet, counsel or procure the commission of an indictable offence shall be liable to be tried, indicted and punished as a principal offender” It is not necessary that the exact role of each participant be known – R v Mercer [2001] >> no breach of ECHR Art. 6(3A)- right to a fair trial should know the precise facts of the offence you are being held liable for but not in these circumstances

Criminal Law and Justice

Lecture 12

07/12/2018

The actus reus elements 1. Aiding    

Term has its conventional meaning: to provide assistance – Bentley v Mullen [1986] D’s (secondary) assistance must be actual assistance But … P need not necessarily be aware it has been provided Think of the shop keeper example earlier: by informing P of V’s whereabouts, and where P kills V, should the shop keeper be liable for murder? >> is provision of information Aiding, or something else?

2. Abetting  Term has its conventional meaning: to incite, instigate or encourage – Bentley v Mullen [1986]  D’s encouragement would occur at time of offence  May involve ‘any involvement from mere encouragement upwards’ - Giannetto [1997]  But … D’s actions might be quite minimal e.g. “hit him” , trivial involvement can join a person to a crime. >> Giannetto – says ‘oh goody’ to P’s intention to kill D’s wife which is sufficient encouragement to have liability attributed to him 3. Counselling  Involves conspiring to commit an offence, advising, providing information or urging  D need not be present at the time of the offence  May involve an omission where a duty to act exists e.g. familial, contractual, assumed,  But … impact of D’s actions might be quite minimal >> Luffmann [2008] – offering P money to kill V, but P may have done the killing anyway was still liable 4. Procuring  Term has the meaning of ‘produce by endeavour’ – common law definition in AG’s Ref (No. 1 of 1975) [1975]  D’s liability rests on proven causation, though it may not be the only cause  And P may be unaware of D’s endeavours (e.g. D spikes P’s drink causing her to drive while intoxicated)  So contrast with counselling where no proof of causation is required Overall  D would normally be charged with ‘aiding, abetting, counselling or procuring’ the offence – Ferguson v Weaving [1951] = prosecution does not make a decision of which one it is  Distinctions between them are fine + have increasingly blurred over time  ‘the shades of difference between [these terms] are far from clear’ – Bryce [2004]  None are specific crimes in themselves: rather, they are ways a crime is committed. They are not offences in their own right they are a way of being liable for another offence.

Criminal Law and Justice

Lecture 12

07/12/2018

The mens rea elements This area of law is rather complicated. The fault element will involve:  D’s mind viz her own encouragement or assistance of the prohibited act- what they have agreed with P what was going to go on? What were they aware of the scope of Ps offenders thinking or reasoning in terms of where this could go?  D’s mind in relation to P’s commission of the principal offence  Possibly also, D’s mind in relation to other offences and the nature of their joint enterprise or ‘adventure’- a sense that when you join a mob etc you are joining a criminal adventure = what extent should this be thought or discussed.. Key terrain laid out in Johnson v Youden [1950] ‘Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence.’ = Essential matters: 

Seems to include the circumstances of the AR elements, relevant consequences, and (perhaps) P’s fault element (here the law is not clear)

Knowledge:    

D must have some knowledge of P’s intentions in order assist or encourage D must have a sense of what the essential circumstances are Willful blindness will not excuse: D may be liable through reckless indifference if the circumstances ‘was not known’ but it was clear Importantly, not necessary to foresee the exact offence undertaken, so long as it is one of the alternatives contemplated – DPP for NI v Maxwell [1978]

Current law is summarised in R v Bryce [2004]. It must be proved that D:  Did an act that assisted commission of an offence  Did the act deliberately, recognising it was capable of assisting the offence  At the time foresaw P’s act or that there was a ‘real or substantial risk’ or ‘real possibility’ of it  When doing the act intended to assist P in what he was doing The special problem of joint enterprise What extra work might the concept of joint enterprise do, over and above assisting and encouraging? Perhaps the distinction is more apparent than real since the courts seldom distinguish it. The Privy Council describe ‘the plain vanilla version of joint enterprise’: ‘… in the context of murder, is where two or more people plan to murder someone and do. If both participated in carrying out the plan, both are liable. It does not matter who actually inflicted the fatal injury.’ Brown & Isaac v The State [2003]

Here the law has recently changed. Much reference to old law still exists, so you need to understand old vs new:

Criminal Law and Justice

Lecture 12

07/12/2018

 Circumstance: where D1 and D2 agree a plan, yet in the event D1 commits a further (usually, more serious) offence  Old law: D2 liable even if she did not intend the additional offence, but it could be seen as a reasonably foreseeable outcome of the joint enterprise e.g. murder from assault may be reasonably foreseeable making D2 liable = makes potential offender wary of serious outcomes – cautionary logic The OLD law, stated by Sir Robin Cooke: ‘a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight’ Chan Wing-Siu v The Queen [1985] R v Powell [1999] D accompanies P to buy drugs. P shoots and kills the drug dealer – ‘possible incident’ but will D be liable? Old law = yes liable to murder because he participated in the adventure NEW LAW: R v Jogee & Ruddock v The Queen [2016] Returns English law to its ancient principles on secondary liability  Liability may only attach where intent of the outcome has been demonstrated  Foresight of a ‘possible incident’ is evidence of that intent, but, contra Chan Wing-Siu, it does not in itself suffice for/replace the need to demonstrate intent Conditional intent:  Not necessarily the first or primary purpose of the enterprise  But contemplated as an agreed possible outcome Example: Bank robbers carry firearms to intimidate, but if met with resistance will use the guns to effect at least really serious harm ie., the requisite mental element/intent for the crime of murder R v Gamble & Ors [1989] NI o Four men form a knee-capping enterprise, taking a gun to blow away V’s knee caps, non-fatal crime but disabled for life o P1 and P2 produce a knife and cut the man’s throat o Does the common purpose to do really serious harm encompass such an escalation and change of means? – Yes, should not be a joint enterprise ‘To accept this type of reasoning would be to fix an accessory with consequences of his acts which he did not foresee and did not desire or intend.’  

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Common purposes may be tacit, or may change rapidly A formal agreement is not required o Presence alongside may imply joint participation o But equally, limited intent will constrain liability o Example: intent to assault only, limits liability to manslaughter In Gamble the production of the knife to slit V’s throat is unforeseen & outside the scope of the joint venture

Criminal Law and Justice

Lecture 12

07/12/2018

‘an overwhelming supervening event which is of such a character that it will relegate into history matters that would otherwise be looked upon as causative factors.’ -Novus actus interveniens Knowing what we do now in Rahman & Ors, should the accessory parties be guilty of the offence of murder?  On what knowledge or intent would their liability turn?  Does it matter that V died of stab wounds and not of a pipe across the head (fatal trauma to the brain)? No  Post-mortem evidence shows the stab wounds were 9cm deep and delivered with ‘severe force’  If P had developed only lately and suddenly an intention to kill, how would that be relevant to assessing D’s liability? In scope our out of scope of group intention? Defences 1. Withdrawal – remember the earlier Q., re the offender who phoned police to alert and then ran off?  Remains liable for an inchoate offence of assisting or encouraging (Serious Crime Act 2007 ss. 44-46)  Relevance of phoning police unclear  Key following Rook [1993] is that withdrawal must be communicated to P  O’Flaherty [2004]: ‘This is ultimately a question of fact and degree for the jury.’ 2. The Tyrrell principle  Covers the case of victims – Tyrrell [1894]  Where a statute is designed to protect a class of people, they ought not be made accessory to their own victimisation >> typically applied to sexual offences against children and youth, regardless of their consent or even if they initiated the act  Cf., Brown [1994] – sado-masochists – not a protected class – found guilty of aiding and abetting assaults upon themselves 3. Crime prevention  How far might police participate in a crime yet avoid liability for the planning or outcome?  Or recall our earlier Q. – could D participate in the beating of V as a ‘good Samaritan’ to limit injury inflicted on V? Clarke [1984] - Court of Appeal accepts crime prevention defence where jury accepts D’s participation: ‘overall [was] calculated and intended not to further but to frustrate the ultimate result of the crime’ >> but other cases have conflicted, not accepting the defence Law Reform ‘It is apparent that the English law of complicity is replete with uncertainties and conflicts. It betrays the worst features of the common law; what some would regard as flexibility appears here as a succession of opportunistic decisions by the courts, often extending the law, and resulting in a body of jurisprudence that has little coherence.’ Ashworth & Horder (2013) The law in this area is complex and inconsistent. There are a number of areas where deficiencies are obvious

Criminal Law and Justice

Lecture 12

07/12/2018

1. Current state of things: terminology  Much of the terminology is indistinct – eg., abetting  And overlapping (aiding vs abetting)  Minor acts can create liability for major consequences (ie., the full criminal offence) >> eg., Giannetto – ‘oh goody’ creates accessory liability for murder  What is the solution: a list of ‘eligible’ actions? 2. Current state of things: scope  Scope being narrowed from foreseeability back to intention  Accomplices must know the essential elements of their joint activity with P  Yet the scope seemed ever to widen, cf. Jogee & Ruddock  Encompassing: o Liability when there is only a possibility that P may commit X o Where a range of offences might be committed o Where one weapon is contemplated but another used  What of the public policy goals of Chan Wing-Siu? o To deter & make liable offenders setting out on criminal enterprise with knowledge of potential murderous outcomes e.g. if you carry knives in gangs why ought you not be liable for anything that comes of that even if it is reasonable foreseeable? 3. Current state of things: omissions  Recall in English law there is no general obligation to look out for another – no ‘good Samaritan’ rule  Yet if D sells P a hammer, with a sense of what P might use it for, she becomes liable if P does hit V with it  Thus accessory liability becomes a kind of Trojan horse for extending the law of omissions >> publicans, car owners, house owners all encompassed >> NCB v Gamble [1959] – weigh bridge operator knows a truck is overloaded, but gives ticket to drive regardless. Held: operator liable as accessory to the traffic offence Law Reform Commission reviewed preparatory offences, leading to new Serious Crimes Act 2007 inchoate offences – very similar to this law but for defences that didn’t happen Also reviewed secondary liability and reported in 2007  Govt has accepted broad thrust but no timetable for implementation exists  Many of the old problems remain >> eg., aiding, abetting, counseling and procuring to be replaced by assisting and encouraging, but still neither term to be defined >> new offence of participating in a joint criminal venture, but it also would be left undefined...