Criminal law reading week 7
Accessories
(i) Principals
Gianetto [1997] 1 CAR 1: D was charged with murdering V and judge said it was open to
jury to convict if they were satisfied that D had at least been an accessory, if not the
principal. CA dismissed appeal, saying the prosecution did not need to specify whether
D was accessory or principal and the jury do not need to be unanimous on which
basis they are convicting D of murder (since accessories are to be tried as principal
offenders under the Accessories and Abettors Act 1861). The important thing is to prove
that D had necessary mens rea and actus reus so that D knows the case he has to answer.
CA say any involvement of mere encouragement upwards would suffice. In trial the
judge (with CA’s blessing) said that if a man responded “oh goody” to being told that X
would kill his wife, then he was an abettor.
(ii) Innocent agents
Cogan and Leak [1976] QB 217: C was convicted of rape as principal and L as an
accessory (since he had procured C’s crime). C’s conviction was later quashed and L
appealed that his conviction should be quashed since he could not be an accessory where
there was no principal. CA dismissed his appeal on the grounds that it was against
“justice and common sense” to acquit L on the basis of technicalities. Lawton J says that
the wife had been raped (she had been “ravished without her consent) even though C
didn’t intend this and could not be held guilty. Since L had procured this, he ought to be
punished. Accessory can be convicted even if principal acquitted.
(iii) Actus reus
Bainbridge [1959] 3 All ER 200: D bought equipment for X, which X used in a crime.
The judge said that it was sufficient for prosecution to show that D knew of X’s
intention to commit a crime of the type which was committed, and that he did
something, with that knowledge, to help the commission of the crime. D convicted.
CA said this was the correct direction. CA say that mere “suspicion” of the crime is
NOT enough.
Clarkson [1971] 3 All ER 344: Ds watched X rape a woman and did nothing to stop him.
However they did nothing to encourage the rape nor was there evidence to show that they
intended to encourage the rape. They were convicted but CA quashed convictions on
basis that intent and act of encouragement had to be proved (not mere presence). Of
course there could be instances where mere presence was the purpose of the event (e.g.
illegal prize fighting) and could be construed as encouragement. Not the case here.
Attorney-General’s Ref (No. 1 of 1975) [1975] 2 All ER 684: D laced V’s drink secretly,
knowing that V would drive soon. He was charged with aiding, abetting, counselling or
,procuring a motoring offence and was acquitted with “no case to answer”. CA said this
was wrong since he HAD procured an offence surreptitiously. He said that Aid, abet,
counsel and procure must mean different things since parliament would not have used
four words if one or two would do. In this case D “procured” the crime, since “procure”
means “to produce by endeavour”. The terms should be given ordinary meaning.
Calhaem [1985] QB 808: D paid Z to murder V. When Z was in V’s home, he decided not
to murder V, but suddenly went berserk and did it. D was convicted of counselling Z and
CA dismissed her appeal on the grounds that “counsel” did not require a causal
connection. On the basis of Widgery’s “ordinary meaning” rule, the word “counsel”
implies no causal connection an simply means “authorise” or “advise” etc
JF Alford Transport [1997] 2 Cr. App. R. 326: Ds worked for a company and turned a
blind eye to their truck drivers working longer hours than was allowed by EC regulations.
In these circumstances CA quashed their convictions as accessories to the offence by
saying that passive acceptance did not constitute aiding, abetting etc. For this there
has to be active encouragement or assistance
(iv) Mens Rea
NCB v Gamble [1959] 1 QB 11: A truck driver was allowed to carry excess load of coal
by NCB and NCB was tried as an accessory to the offence. CA upheld NCB’s conviction.
Lord Devlin stated that to supply someone with an object (e.g. selling a gun) with intent
to aid the offence (intent being purpose or “natural and probable consequences” i.e.
indifference) then they can be convicted as an accessory. However, he drew a distinction
where one is returning property that belongs to another since returning another’s
property upon their request is not really an action (i.e. one is automaton) and therefore,
regardless of intent to aid, one cannot be convicted as an accessory in this latter case.
Presumably the case of an indifferent shopkeeper who is aware that D will use a gun sold
to him to kill could not now be convicted unless consequences are “virtually certain”.
NB in Garrett v Arthur Churchill Ltd 1970 it has been decided that one does not have a
duty to return another’s property if one knows that it will be used to commit a crime.
Therefore it is no longer correct to treat people as effectively “automatons” in returning
property so that a court could now rule differently to Devlin’s analysis (though NB only
civil case and doesn’t impose duty not to return property to be used for a crime).
Maxwell v DPP for Northern Ireland [1978] 3 All ER 1140: D2 was ordered by his
organisation to guide D1 (in a following car) to a pub where RCs lived. D1 placed a
bomb in the pub which was defused but fulfilled the requirements of the offence of
endangering people’s lives. HL upheld D2’s conviction for aiding the offence. HL said
that it was unnecessary to show that D2 knew the precise details of the offence, but it
sufficed that D2 knew the type of offence to be committed or the essential matters
constituting the offence. Given that D2’s organisation carried out armed attacks on RCs
regularly he must have been aware of the type of offence i.e. an armed attack.
,Chan Wing-Siu v. R [1985] AC 168: Ds (3 of them) broke in to V’s flat, and one of them
stabbed and killed him and wounded his wife. HL upheld murder convictions, saying that
all Ds could be convicted if they had foreseen that such an outcome might occur as
part of the joint criminal venture (JCV). Given that they were all carrying knives, this
was clearly the case. It is for the jury to decide whether the risk recognised by D2 was
sufficient to make him a party to the crime committed by the principal (i.e. if the risk
D2 foresaw was not too “remote” to make him innocent of the crime).
Gillick v. West Norfolk and Wisbech AHA [1986] AC 112: See week 2. NB HL (Lord
Fraser) said that doctor wasn’t intending to aid a sex offence, but merely intending to act
in patient’s best interest. Actually he is intending to do both (he knows that giving
contraception to an underage patient will help them commit sex offences) but court are
selecting the latter based on motive.
Stewart and Schofield [1995] 1 Cr App R 441: In an attempted robbery, Schofield kept
watch, while Stewart and Lambert, both armed, went into the shop. Lambert beat the
shopkeeper to death. S & S claimed not to have contemplated committing murder and
that this only happened because L was a racist and the shopkeeper was black. The Jury
convicted them of manslaughter and CA upheld convictions, saying that this was open to
the jury since whether or not D2s contemplated a certain type of crime was a question of
fact (NOT law). Where D2 had the mens rea for a lesser offence then he could be
convicted of a lesser crime than D1 (Lambert was convicted of murder). I.e. where the
act was within the scope of the JCE but was not foreseen by the accessory, the accessory
had a lesser mens rea and could be convicted of a lesser crime.
Powell, Daniels and English [1999] 1 AC 1: In case 1, P, D and X went to a drug dealers
home for the joint criminal venture of buying cannabis but during the course of the JCV,
P and D realised that X had a gun and contemplated that he might kill the rug dealer.
They nevertheless continued in the JCV and when X did kill the dealer, they were
convicted as accessories to the offence. HL dismissed their appeals on the grounds that
where one party, in the course of the JCV, foresees what the other party might do, he
can be convicted as an accessory on that basis (Lord Hutton).
In case 2, E and X had attacked a policeman, V, with wooden sticks. X pulled out a knife
(which E was not aware that X had) and X inflicted fatal wounds. HL quashed E’s
murder conviction since X was operating outside the scope of the JCV, as demonstrated
by the use of a weapon whose presence was unbeknown to E. However, Lord Hutton says
that if the principal uses a weapon that is as dangerous or less dangerous than the one
which the accessory contemplates the principal using (e.g. I stab someone when my
accessory thought I would shoot them) there is no escaping liability. It is only when the
principal uses a more dangerous weapon than the one that the accessory envisioned
that he has moved beyond scope of JCV.
A problem was raised: The principal had to intend death to be convicted of murder,
whereas the accessory only had to foresee possibility of another killing a person to be
convicted of murder. I.e. the accessory can be guilty of murder by a lesser mens rea than
, principal and in fact is being convicted of murder by recklessness. Lord Steyn (and other
judges) say it is thus for policy reasons so as to afford public protection against people
operating in gangs + proof of intent on the part of the accessory would be impossible.
Lord Hutton said that Majewski established that policy was a consideration: not just pure
logic.
Gilmour [2000] 2 Cr App R. 407: D1 and D2 both intended that D1 should set V’s house
on fire, D1 intending that V should be killed, whereas D2 intended merely that V should
be frightened. D2 didn’t know of D1’s intention. V died. HL held that it was possible for
D2’s manslaughter conviction to be sustained despite D1 being convicted for a
greater crime. The HL said there was no convincing reason why if someone was
facilitating an act whose details he knew and had the necessary corresponding mens rea
that he should not be convicted of a crime. It would be morally wrong for D2 to escape
all liability.
Bryce [2004] 2 CAR 35: D drove X to a campsite where X killed V. At the time of D’s
transporting him, X had not made up his mind as to whether to carry out the murder. D
contended that his conviction of murder was flawed on the basis that at the time of his act
the principal had not fully decided to murder. CA dismissed this. CA ruled that to assist
an offence D2 has to intentionally do an act that will help D1 commit an offence that
D2 knows or believes there to be a possibility of D1 committing. In order for D2 to
escape liability he has to withdraw from the JCV and do something to counteract his
earlier assistance. Simple repentance is not enough.
Smith, “Criminal Liability of Accessories: Law and Law Reform”, (1997) LQR 453:
o Basic accessorial liability is where D intentionally assisted or encouraged the
committing of a certain crime by X and that D intended this. Parasitic accessorial
liability is where D intentionally did an act to encourage or assist a crime which D
foresaw a real possibility that X might commit but did not necessarily intend
should be commited. An example of basic accessorial liability is Gianetto where
D intended that X should kill his wife. An example of parasitic accessorial
liability is Powell and Daniels.
o Parasitic Accessory Liability has a subjective foresight test (that D foresaw, and
NOT that D ought to have foreseen)
o The proposal to replace aiding, abetting, counselling and procuring with simply
assisting or encouraging would clear up confusion about current distinctions
between the terms. The Law commission propose that no further acts would need
to be done beyond a simple encouragement or act of assistance and these would
be crimes themselves (i.e. not making someone liable for a different crime as at
the moment). This means that as soon as the encouragement is given, a crime has
been committed, whether or not the intended crime is ever carried out. E.g. If I
say to you that I will kill X and you say “good luck” then you are guilty of
Accessories
(i) Principals
Gianetto [1997] 1 CAR 1: D was charged with murdering V and judge said it was open to
jury to convict if they were satisfied that D had at least been an accessory, if not the
principal. CA dismissed appeal, saying the prosecution did not need to specify whether
D was accessory or principal and the jury do not need to be unanimous on which
basis they are convicting D of murder (since accessories are to be tried as principal
offenders under the Accessories and Abettors Act 1861). The important thing is to prove
that D had necessary mens rea and actus reus so that D knows the case he has to answer.
CA say any involvement of mere encouragement upwards would suffice. In trial the
judge (with CA’s blessing) said that if a man responded “oh goody” to being told that X
would kill his wife, then he was an abettor.
(ii) Innocent agents
Cogan and Leak [1976] QB 217: C was convicted of rape as principal and L as an
accessory (since he had procured C’s crime). C’s conviction was later quashed and L
appealed that his conviction should be quashed since he could not be an accessory where
there was no principal. CA dismissed his appeal on the grounds that it was against
“justice and common sense” to acquit L on the basis of technicalities. Lawton J says that
the wife had been raped (she had been “ravished without her consent) even though C
didn’t intend this and could not be held guilty. Since L had procured this, he ought to be
punished. Accessory can be convicted even if principal acquitted.
(iii) Actus reus
Bainbridge [1959] 3 All ER 200: D bought equipment for X, which X used in a crime.
The judge said that it was sufficient for prosecution to show that D knew of X’s
intention to commit a crime of the type which was committed, and that he did
something, with that knowledge, to help the commission of the crime. D convicted.
CA said this was the correct direction. CA say that mere “suspicion” of the crime is
NOT enough.
Clarkson [1971] 3 All ER 344: Ds watched X rape a woman and did nothing to stop him.
However they did nothing to encourage the rape nor was there evidence to show that they
intended to encourage the rape. They were convicted but CA quashed convictions on
basis that intent and act of encouragement had to be proved (not mere presence). Of
course there could be instances where mere presence was the purpose of the event (e.g.
illegal prize fighting) and could be construed as encouragement. Not the case here.
Attorney-General’s Ref (No. 1 of 1975) [1975] 2 All ER 684: D laced V’s drink secretly,
knowing that V would drive soon. He was charged with aiding, abetting, counselling or
,procuring a motoring offence and was acquitted with “no case to answer”. CA said this
was wrong since he HAD procured an offence surreptitiously. He said that Aid, abet,
counsel and procure must mean different things since parliament would not have used
four words if one or two would do. In this case D “procured” the crime, since “procure”
means “to produce by endeavour”. The terms should be given ordinary meaning.
Calhaem [1985] QB 808: D paid Z to murder V. When Z was in V’s home, he decided not
to murder V, but suddenly went berserk and did it. D was convicted of counselling Z and
CA dismissed her appeal on the grounds that “counsel” did not require a causal
connection. On the basis of Widgery’s “ordinary meaning” rule, the word “counsel”
implies no causal connection an simply means “authorise” or “advise” etc
JF Alford Transport [1997] 2 Cr. App. R. 326: Ds worked for a company and turned a
blind eye to their truck drivers working longer hours than was allowed by EC regulations.
In these circumstances CA quashed their convictions as accessories to the offence by
saying that passive acceptance did not constitute aiding, abetting etc. For this there
has to be active encouragement or assistance
(iv) Mens Rea
NCB v Gamble [1959] 1 QB 11: A truck driver was allowed to carry excess load of coal
by NCB and NCB was tried as an accessory to the offence. CA upheld NCB’s conviction.
Lord Devlin stated that to supply someone with an object (e.g. selling a gun) with intent
to aid the offence (intent being purpose or “natural and probable consequences” i.e.
indifference) then they can be convicted as an accessory. However, he drew a distinction
where one is returning property that belongs to another since returning another’s
property upon their request is not really an action (i.e. one is automaton) and therefore,
regardless of intent to aid, one cannot be convicted as an accessory in this latter case.
Presumably the case of an indifferent shopkeeper who is aware that D will use a gun sold
to him to kill could not now be convicted unless consequences are “virtually certain”.
NB in Garrett v Arthur Churchill Ltd 1970 it has been decided that one does not have a
duty to return another’s property if one knows that it will be used to commit a crime.
Therefore it is no longer correct to treat people as effectively “automatons” in returning
property so that a court could now rule differently to Devlin’s analysis (though NB only
civil case and doesn’t impose duty not to return property to be used for a crime).
Maxwell v DPP for Northern Ireland [1978] 3 All ER 1140: D2 was ordered by his
organisation to guide D1 (in a following car) to a pub where RCs lived. D1 placed a
bomb in the pub which was defused but fulfilled the requirements of the offence of
endangering people’s lives. HL upheld D2’s conviction for aiding the offence. HL said
that it was unnecessary to show that D2 knew the precise details of the offence, but it
sufficed that D2 knew the type of offence to be committed or the essential matters
constituting the offence. Given that D2’s organisation carried out armed attacks on RCs
regularly he must have been aware of the type of offence i.e. an armed attack.
,Chan Wing-Siu v. R [1985] AC 168: Ds (3 of them) broke in to V’s flat, and one of them
stabbed and killed him and wounded his wife. HL upheld murder convictions, saying that
all Ds could be convicted if they had foreseen that such an outcome might occur as
part of the joint criminal venture (JCV). Given that they were all carrying knives, this
was clearly the case. It is for the jury to decide whether the risk recognised by D2 was
sufficient to make him a party to the crime committed by the principal (i.e. if the risk
D2 foresaw was not too “remote” to make him innocent of the crime).
Gillick v. West Norfolk and Wisbech AHA [1986] AC 112: See week 2. NB HL (Lord
Fraser) said that doctor wasn’t intending to aid a sex offence, but merely intending to act
in patient’s best interest. Actually he is intending to do both (he knows that giving
contraception to an underage patient will help them commit sex offences) but court are
selecting the latter based on motive.
Stewart and Schofield [1995] 1 Cr App R 441: In an attempted robbery, Schofield kept
watch, while Stewart and Lambert, both armed, went into the shop. Lambert beat the
shopkeeper to death. S & S claimed not to have contemplated committing murder and
that this only happened because L was a racist and the shopkeeper was black. The Jury
convicted them of manslaughter and CA upheld convictions, saying that this was open to
the jury since whether or not D2s contemplated a certain type of crime was a question of
fact (NOT law). Where D2 had the mens rea for a lesser offence then he could be
convicted of a lesser crime than D1 (Lambert was convicted of murder). I.e. where the
act was within the scope of the JCE but was not foreseen by the accessory, the accessory
had a lesser mens rea and could be convicted of a lesser crime.
Powell, Daniels and English [1999] 1 AC 1: In case 1, P, D and X went to a drug dealers
home for the joint criminal venture of buying cannabis but during the course of the JCV,
P and D realised that X had a gun and contemplated that he might kill the rug dealer.
They nevertheless continued in the JCV and when X did kill the dealer, they were
convicted as accessories to the offence. HL dismissed their appeals on the grounds that
where one party, in the course of the JCV, foresees what the other party might do, he
can be convicted as an accessory on that basis (Lord Hutton).
In case 2, E and X had attacked a policeman, V, with wooden sticks. X pulled out a knife
(which E was not aware that X had) and X inflicted fatal wounds. HL quashed E’s
murder conviction since X was operating outside the scope of the JCV, as demonstrated
by the use of a weapon whose presence was unbeknown to E. However, Lord Hutton says
that if the principal uses a weapon that is as dangerous or less dangerous than the one
which the accessory contemplates the principal using (e.g. I stab someone when my
accessory thought I would shoot them) there is no escaping liability. It is only when the
principal uses a more dangerous weapon than the one that the accessory envisioned
that he has moved beyond scope of JCV.
A problem was raised: The principal had to intend death to be convicted of murder,
whereas the accessory only had to foresee possibility of another killing a person to be
convicted of murder. I.e. the accessory can be guilty of murder by a lesser mens rea than
, principal and in fact is being convicted of murder by recklessness. Lord Steyn (and other
judges) say it is thus for policy reasons so as to afford public protection against people
operating in gangs + proof of intent on the part of the accessory would be impossible.
Lord Hutton said that Majewski established that policy was a consideration: not just pure
logic.
Gilmour [2000] 2 Cr App R. 407: D1 and D2 both intended that D1 should set V’s house
on fire, D1 intending that V should be killed, whereas D2 intended merely that V should
be frightened. D2 didn’t know of D1’s intention. V died. HL held that it was possible for
D2’s manslaughter conviction to be sustained despite D1 being convicted for a
greater crime. The HL said there was no convincing reason why if someone was
facilitating an act whose details he knew and had the necessary corresponding mens rea
that he should not be convicted of a crime. It would be morally wrong for D2 to escape
all liability.
Bryce [2004] 2 CAR 35: D drove X to a campsite where X killed V. At the time of D’s
transporting him, X had not made up his mind as to whether to carry out the murder. D
contended that his conviction of murder was flawed on the basis that at the time of his act
the principal had not fully decided to murder. CA dismissed this. CA ruled that to assist
an offence D2 has to intentionally do an act that will help D1 commit an offence that
D2 knows or believes there to be a possibility of D1 committing. In order for D2 to
escape liability he has to withdraw from the JCV and do something to counteract his
earlier assistance. Simple repentance is not enough.
Smith, “Criminal Liability of Accessories: Law and Law Reform”, (1997) LQR 453:
o Basic accessorial liability is where D intentionally assisted or encouraged the
committing of a certain crime by X and that D intended this. Parasitic accessorial
liability is where D intentionally did an act to encourage or assist a crime which D
foresaw a real possibility that X might commit but did not necessarily intend
should be commited. An example of basic accessorial liability is Gianetto where
D intended that X should kill his wife. An example of parasitic accessorial
liability is Powell and Daniels.
o Parasitic Accessory Liability has a subjective foresight test (that D foresaw, and
NOT that D ought to have foreseen)
o The proposal to replace aiding, abetting, counselling and procuring with simply
assisting or encouraging would clear up confusion about current distinctions
between the terms. The Law commission propose that no further acts would need
to be done beyond a simple encouragement or act of assistance and these would
be crimes themselves (i.e. not making someone liable for a different crime as at
the moment). This means that as soon as the encouragement is given, a crime has
been committed, whether or not the intended crime is ever carried out. E.g. If I
say to you that I will kill X and you say “good luck” then you are guilty of
