PARTICIPATION (PARTIES TO A CRIME)
Parties to a Crime: Group crime – EG: Conspiracy – 3 people agree to commit murder
General Theory of Participation:
2 approaches to situations involving multiple offenders:
1. Inchoate liability (lecture 15): liability is ‘incomplete’; there is criminal liability whether or not
the principal offence is committed
- Attempts (s1(1) CAA 1981), Conspiracy (s1 CLA 1977 and common law), Assisting or
encouraging (s44-47 SCA 2007)
2. Derivative liability (today): one person’s liability is derived from that of another person, who
commits the principal offence.
- Aiding, abetting, counselling or procuring (s8 Alien Assisting Act 1861)
- Joint enterprise liability (old common law)
*Note: When answering a complicity question, start with the analysis of the principal offence/liability of P!
Principal of accomplice?
Not always obvious to identify the principal offender, but it is crucial that the courts do since the
liability of a PO and an accomplice is different.
Courts have struggled to maintain a clear separation of principal and accomplice, illustrated in
Gnango 2011 UKSC: D and P (unidentified referred to as ‘Bandana Man’) got into a gunfight. Both shot at
each other with the intention to kill or cause GBH. 1 of P’s shots missed D and hit V, innocent pedestrian. V
died and D was charged with murder under the doctrine of complicity. C court: guilty. COA: allowed appeal and
quashed D’s conviction. There was no common purpose between D and P.
- SC: allowed appeal, restoring liability (Lord Kerr dissenting).
D was liable because he assisted or encouraged P to shoot (Lords Phillips, Judge, Wilson)
or because he was a PO (Lord Clark)
or because he was a joint PO with P (Lords Brown, Clark, Dyson)
D as Principal Offender: D is PO if she completes AR and MR of principal offence.
D as co-principal: where there is more than one is doesn’t mean that 1 is PO and the others are
accessories. Where D and another (or others) each complete AR and MR of an offence, they commit
the offence as co-principal
- EG: D1 and D2 attack V with intention to kill or cause GBH and V dies, both will be liable for murder.
- However, where D doesn’t commit AR with P but does assist or encourage P – not liable. P free
informed choice breaks the chain of causation.
D as a PO via INNOCENT AGENCY: where D uses a party (A) as a tool to commit an offence, and
A is unaware of the circumstances that would make her acts criminal, D may still be liable as PO via
the Doctrine of Innocent Agency.
- Michael 1840: D, intending o kill her baby (V), gave nurse caring for V (A) a bottle of ‘medicine’ which
she asked A to administer. Bottle actually contained a drug that would kill V if administered at the dose
instructed by D. A didn’t administer the drug but left it on the mantelpiece. Whilst A was gone, her 5-yr-old
son (B) administered the drug to V, causing death. B didn’t have any knowledge of drug or its danger. D
was convicted of murder – actions of A and B were uninformed (they were innocent agents) and so D’s act
remained the cause of V’s death.
D as an accomplice - Derivative (Accomplice) Liability:
- Accessories and Abettors Act 1861 s8 codifies complicity: ‘Whosoever shall aid, abet, counsel or
procure the commission of any indictable offence, … shall be liable to be tried, indicted and punished as a
principal offender’
- Summary offences: Magistrates’ Courts Act 1980 s44
- D’s liability depends on what P does/is derivative of P’s liability but does not mean that P needs
to be convicted or even identified (EG: Gnango)
- Aiding, abetting counselling or procuring can happen before or during the offence- EG: advice,
material assistance, equipment, encouragement.
Punishable to the same extent as the principal for the main offence
Uncertainty whether D is PO or accomplice: if it can be proved that D either killed V as PO or was
an accomplice, then D may be convicted of the principal offence without the prosecution having to
prove which role she played.
- Giannetto 1997: D threatened to kill wife (V) hired A to kill her. V was killed, but it couldn’t be proved
who killed her. D was charged with murder on the basis that he either killed V or was an accomplice. CC
convicted and COA upheld on appeal.
, - ‘D’s state of mind in intending that the offence be committed connects D to the offence and the resulting
harm in a morally significant way that can only be properly reflected by convicting D of the offence rather
than encouraging/assisting the offence.’ (Law Commission)
COMPLICITY
AR D aids, abets, counsels or procures P to commit a principal offence
‘Aid’: to help/support/assist. ‘Abet’: to incite/instigate/encourage
‘Counsel’: to advise/encourage ‘Procure’: ‘to produce by endeavour’
Aiding & abetting (etc.) does not require the existence of an agreement between D and P (or, D1, D2,
D3 etc)
A-G’s Reference (No 1 of 1975) 1975: D spiked P’s drink, knowing P would be driving later. D guilty of
procuring P’s offence; the offence has no MR – P commits driving offence: “[The principal offence] has been
procured because, unknown to the driver and without his collaboration, he has been put in a position in which in
fact he has committed an offence which he never would have committed otherwise.”
Clarkson 1971: D1 & D2 entered a room where a woman was being raped by other soldiers. No evidence that
they provided any assistance or encouragement beyond their choice to enter and remain present. Court-martial:
guilty of rape. Court-martial appeal court: allowed appeal. there was insufficient proof as to MR.
- Voluntary presence is capable of satisfying the AR of complicity. (In case: no intent to A&A)
Coney 1882: D’s presence at illegal prize fights = capable of encouraging as such fights would
not happen without an audience
D may also become complicit in P’s offence by omission. Arises in 2 circumstances:
1. Where P’s omission arises as a breach of a recognised duty to act – EG: familial duties – D does
nothing whilst wife drowns their child (Russell 1933)
2. Omission based encouragement: applies where D has a power or right to control the actions of P,
but deliberately refrains from doing so. - Du Cros v Lambourne 1907: D was charged with
driving at a dangerous speed. However, it couldn’t be proved whether he was a passenger or the
driver. passenger/owner has power to intervene.
Stringer 2011: there must be some connecting link between D’s conduct and the principal offence
(but no causation).
Bryce 2004: Driving P to a place to enable P killed V. Despite 12-hour delay D’s acts still provided some
assistance to the murder
Giannetto 1997: Simply nodding when told of a plan could amount to encouragement
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?)
MR:
Not consistently identified or applied by the courts - Jogee 2016 changed the previous law.
Jogee 2016: D and P went to V’s house and P took a knife from kitchen and killed V. D intended P to
confront V with violence, and foresaw the possibility of serious harm being caused, but didn’t intend it. CC:
guilty of murder as accomplice. COA: Upheld conviction - SC: allowed appeal, ordered retrials. Complicity
liability requires D to intend to assist or encourage P to commit the principle offence with MR – foresight is
no longer sufficient for liability; D must intend to assist or encourage the whole offence.
D’s mens rea as to her own conduct:
1. D’s own conduct (i.e. assisting, encouraging or procuring) must be voluntary
2. D must intend to assist, encourage or procure the commission by P of the act which constitutes or
results in the principal offence, (direct or oblique intent)
- National Coal Board v Gamble 1959: D supplied coal to P. at the weigh-station, before p was able
to leave with the coal. P’s lorry was overladen to the extent that taking the lorry on the road became an
offence. D let P leave anyway. D convicted of being an accomplice to P’s offence.
- obliquely intending to assist overloaded lorry driver (Woollin test)
- Gnango: D was held to have obliquely assisted P in killing V
D’s mens rea as to P’s conduct:
P commits the principal offence as D expected:
General rule in Johnson v Youden 1950: at the time of assisting, encouraging or procuring D must
‘know the essential matters’ of P’s offence
Rather than a requirement of knowledge, or belief, courts began to interpret ‘knowledge’ in this
context as being satisfied by mere ‘foresight’ of a risk.
became ‘foresight’:
- Chan Wing-Siu 1985: D & 2 others went to V’s house with knives to rob him. V was stabbed and
killed, and his wife was wounded. D foresaw but didn’t intend that 1 of his co-accused might act with
Parties to a Crime: Group crime – EG: Conspiracy – 3 people agree to commit murder
General Theory of Participation:
2 approaches to situations involving multiple offenders:
1. Inchoate liability (lecture 15): liability is ‘incomplete’; there is criminal liability whether or not
the principal offence is committed
- Attempts (s1(1) CAA 1981), Conspiracy (s1 CLA 1977 and common law), Assisting or
encouraging (s44-47 SCA 2007)
2. Derivative liability (today): one person’s liability is derived from that of another person, who
commits the principal offence.
- Aiding, abetting, counselling or procuring (s8 Alien Assisting Act 1861)
- Joint enterprise liability (old common law)
*Note: When answering a complicity question, start with the analysis of the principal offence/liability of P!
Principal of accomplice?
Not always obvious to identify the principal offender, but it is crucial that the courts do since the
liability of a PO and an accomplice is different.
Courts have struggled to maintain a clear separation of principal and accomplice, illustrated in
Gnango 2011 UKSC: D and P (unidentified referred to as ‘Bandana Man’) got into a gunfight. Both shot at
each other with the intention to kill or cause GBH. 1 of P’s shots missed D and hit V, innocent pedestrian. V
died and D was charged with murder under the doctrine of complicity. C court: guilty. COA: allowed appeal and
quashed D’s conviction. There was no common purpose between D and P.
- SC: allowed appeal, restoring liability (Lord Kerr dissenting).
D was liable because he assisted or encouraged P to shoot (Lords Phillips, Judge, Wilson)
or because he was a PO (Lord Clark)
or because he was a joint PO with P (Lords Brown, Clark, Dyson)
D as Principal Offender: D is PO if she completes AR and MR of principal offence.
D as co-principal: where there is more than one is doesn’t mean that 1 is PO and the others are
accessories. Where D and another (or others) each complete AR and MR of an offence, they commit
the offence as co-principal
- EG: D1 and D2 attack V with intention to kill or cause GBH and V dies, both will be liable for murder.
- However, where D doesn’t commit AR with P but does assist or encourage P – not liable. P free
informed choice breaks the chain of causation.
D as a PO via INNOCENT AGENCY: where D uses a party (A) as a tool to commit an offence, and
A is unaware of the circumstances that would make her acts criminal, D may still be liable as PO via
the Doctrine of Innocent Agency.
- Michael 1840: D, intending o kill her baby (V), gave nurse caring for V (A) a bottle of ‘medicine’ which
she asked A to administer. Bottle actually contained a drug that would kill V if administered at the dose
instructed by D. A didn’t administer the drug but left it on the mantelpiece. Whilst A was gone, her 5-yr-old
son (B) administered the drug to V, causing death. B didn’t have any knowledge of drug or its danger. D
was convicted of murder – actions of A and B were uninformed (they were innocent agents) and so D’s act
remained the cause of V’s death.
D as an accomplice - Derivative (Accomplice) Liability:
- Accessories and Abettors Act 1861 s8 codifies complicity: ‘Whosoever shall aid, abet, counsel or
procure the commission of any indictable offence, … shall be liable to be tried, indicted and punished as a
principal offender’
- Summary offences: Magistrates’ Courts Act 1980 s44
- D’s liability depends on what P does/is derivative of P’s liability but does not mean that P needs
to be convicted or even identified (EG: Gnango)
- Aiding, abetting counselling or procuring can happen before or during the offence- EG: advice,
material assistance, equipment, encouragement.
Punishable to the same extent as the principal for the main offence
Uncertainty whether D is PO or accomplice: if it can be proved that D either killed V as PO or was
an accomplice, then D may be convicted of the principal offence without the prosecution having to
prove which role she played.
- Giannetto 1997: D threatened to kill wife (V) hired A to kill her. V was killed, but it couldn’t be proved
who killed her. D was charged with murder on the basis that he either killed V or was an accomplice. CC
convicted and COA upheld on appeal.
, - ‘D’s state of mind in intending that the offence be committed connects D to the offence and the resulting
harm in a morally significant way that can only be properly reflected by convicting D of the offence rather
than encouraging/assisting the offence.’ (Law Commission)
COMPLICITY
AR D aids, abets, counsels or procures P to commit a principal offence
‘Aid’: to help/support/assist. ‘Abet’: to incite/instigate/encourage
‘Counsel’: to advise/encourage ‘Procure’: ‘to produce by endeavour’
Aiding & abetting (etc.) does not require the existence of an agreement between D and P (or, D1, D2,
D3 etc)
A-G’s Reference (No 1 of 1975) 1975: D spiked P’s drink, knowing P would be driving later. D guilty of
procuring P’s offence; the offence has no MR – P commits driving offence: “[The principal offence] has been
procured because, unknown to the driver and without his collaboration, he has been put in a position in which in
fact he has committed an offence which he never would have committed otherwise.”
Clarkson 1971: D1 & D2 entered a room where a woman was being raped by other soldiers. No evidence that
they provided any assistance or encouragement beyond their choice to enter and remain present. Court-martial:
guilty of rape. Court-martial appeal court: allowed appeal. there was insufficient proof as to MR.
- Voluntary presence is capable of satisfying the AR of complicity. (In case: no intent to A&A)
Coney 1882: D’s presence at illegal prize fights = capable of encouraging as such fights would
not happen without an audience
D may also become complicit in P’s offence by omission. Arises in 2 circumstances:
1. Where P’s omission arises as a breach of a recognised duty to act – EG: familial duties – D does
nothing whilst wife drowns their child (Russell 1933)
2. Omission based encouragement: applies where D has a power or right to control the actions of P,
but deliberately refrains from doing so. - Du Cros v Lambourne 1907: D was charged with
driving at a dangerous speed. However, it couldn’t be proved whether he was a passenger or the
driver. passenger/owner has power to intervene.
Stringer 2011: there must be some connecting link between D’s conduct and the principal offence
(but no causation).
Bryce 2004: Driving P to a place to enable P killed V. Despite 12-hour delay D’s acts still provided some
assistance to the murder
Giannetto 1997: Simply nodding when told of a plan could amount to encouragement
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?)
MR:
Not consistently identified or applied by the courts - Jogee 2016 changed the previous law.
Jogee 2016: D and P went to V’s house and P took a knife from kitchen and killed V. D intended P to
confront V with violence, and foresaw the possibility of serious harm being caused, but didn’t intend it. CC:
guilty of murder as accomplice. COA: Upheld conviction - SC: allowed appeal, ordered retrials. Complicity
liability requires D to intend to assist or encourage P to commit the principle offence with MR – foresight is
no longer sufficient for liability; D must intend to assist or encourage the whole offence.
D’s mens rea as to her own conduct:
1. D’s own conduct (i.e. assisting, encouraging or procuring) must be voluntary
2. D must intend to assist, encourage or procure the commission by P of the act which constitutes or
results in the principal offence, (direct or oblique intent)
- National Coal Board v Gamble 1959: D supplied coal to P. at the weigh-station, before p was able
to leave with the coal. P’s lorry was overladen to the extent that taking the lorry on the road became an
offence. D let P leave anyway. D convicted of being an accomplice to P’s offence.
- obliquely intending to assist overloaded lorry driver (Woollin test)
- Gnango: D was held to have obliquely assisted P in killing V
D’s mens rea as to P’s conduct:
P commits the principal offence as D expected:
General rule in Johnson v Youden 1950: at the time of assisting, encouraging or procuring D must
‘know the essential matters’ of P’s offence
Rather than a requirement of knowledge, or belief, courts began to interpret ‘knowledge’ in this
context as being satisfied by mere ‘foresight’ of a risk.
became ‘foresight’:
- Chan Wing-Siu 1985: D & 2 others went to V’s house with knives to rob him. V was stabbed and
killed, and his wife was wounded. D foresaw but didn’t intend that 1 of his co-accused might act with
