Secondary liability in the criminal law
- The issue of criminal liability for encouraging or assisting another person to commit an offence is a complex and difficult area. The issue is important because it is commonly the case that criminal offences involve two or more participants, only some of whom are the actual perpetrators of the offence. The principal is the person or persons who commit the actus reus of the offence. There may be joint principals, for example, where P1 andP2 attack V. Secondary parties provide assistance or encouragement to the principal or principals.
- The starting point is section 8 of the Accessories and Abettors Act 1861. This provides that whoever 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. Historically the position at common law was that aiders and abettors were said to be principals in the second degree and were actually or constructively present at the time the offence was committed by the principal. By contrast, counsellors and procurers were accessories before the fact whose presence at the time of the offence was not necessary. The current position is that the four varieties of conduct overlap and they cover any form of assistance or encouragement. (The position in relation to summary offences is governed by the Magistrates’ Courts Act 1980, section 44, which is in all material respects identical to section 8.)
- There are three important points to note about section 8:
- It reflects the common law principle that aiding, abetting, counselling or procuring another person to commit an offence is not itself a distinct offence. The secondary party is himself guilty of the offence committed by the principal and liable to the same penalties. It is the principal’s offence for which D is liable. For example, D encourages P to murder V.P stabs V intending to kill or cause serious bodily harm. Both D and P are guilty of murder and subject to the mandatory sentence of imprisonment for life. Secondary parties may be liable for P’s crime even though they do not themselves satisfy the actus reus (conduct element) or mens rea (fault element) of P’s offence.
- It proceeds on the basis that the criminal liability of secondary parties is the same for every offence. Thus, while the definition of every offence will stipulate what the principal must do to incur liability, secondary liability is based on common law principles and applies to every offence.
- It collapses the distinction between perpetrators and other participants. This has obvious procedural and other evidential advantages. Amongst other things it enables the prosecution to obtain a conviction even if it cannot be proved whether D was acting as a principal or accessory.
For example, D1 and D2 are charged with bank robbery. They can be convicted even if it is not known who entered the bank and, using the threat of force, stole the money (the principal) and who drove the getaway car (the accessory). It has been held by the Court of Appeal that there is no violation of Article 6(3) of the European Convention on Human Rights when the prosecution alleges that D is party to an offence but cannot specify his precise role: R v. Mercer  EWCA Crim. 638.
- Because the common law principle is that aiding and abetting etc. is not a distinct offence, the liability of a secondary party is properly described as derivative: it derives from and is dependent upon the liability of the principle. This derivative aspect of secondary party liability was reflected in the old common law rule that before D could be liable as a secondary party it was necessary first to convict and sentence P. Thus, if Pwas not apprehended or died or was pardoned, D could not be tried. This is no longer the case. It is, however, necessary to prove that an offence was committed by P. If D encourages P to commit an offence, D incurs no liability at common law if, subsequently,P for whatever reason does not go on to commit (or attempt to commit) the offence.
For example, D supplies P with a torch knowing that P intends to use it in the course of a burglary. P decides not to commit the burglary. D is not guilty as a secondary party at common law. The position at common law is to be contrasted with offences under the Serious Crime Act 2007. These are inchoate offences committed by the offender as a principal, whether or not the encouraged crime occurs.
- There are two apparent exceptions to derivative liability:
- The doctrine of innocent agency: where D uses an innocent agent to commit the offence. In these circumstances D commits the offence as a principal and not as an accessory. For example, D uses a person who is insane, or under the age of criminal responsibility to commit an offence. The participation by the innocent agent is disregarded and D is treated as the principal.
- The secondary party’s liability can exceed the liability of the principal where he procures the commission of the conduct element of the offence but his fault is greater than the principal’s. For example, D hands P a gun and tells P that it contains blank ammunition. D knows it contains live bullets. D encourages P to shoot at V in order to frighten V. P knows that V suffers from a serious heart condition. P shoots at and kills V with the live ammunition. P is guilty of manslaughter. D is guilty of murder: R v. Howe1987 A.C. 417.
Secondary Liability and Joint Enterprise Liability
- There is some question as to whether joint enterprise is a special case of secondary participation or merely a subset of aiding and abetting. The Law Commission was of the view that it was the former (Law Comm. No. 305: Participation In Crime (May 2007)). There is a division of opinion among scholars on this point but the preponderance of opinion disagrees with the Law Commission. The essential differences between the two concepts are set out below.
- In the case of secondary liability there is no need for any agreement between D andP that P will go on to commit an offence. For example, D, a shopkeeper, sells P an article knowing that P will use it to commit burglary. P uses the article to commit burglary. D is also guilty of burglary even though he may have hoped that P would not go on to commit the offence. Moreover, in ordinary cases of aiding and abetting, D must help or encourage the commission of the crime committed by P.
- In the case of joint enterprise liability, D and P embark on a joint venture to commit an offence, and, in the course of the joint venture, P commits another offence. For example, D and P agree to commit burglary. If P commits the offence while D acts as a lookout, no difficulty arises. But what if P commits another offence which is in addition to or instead of the agreed offence? For example, D and P agree to commit burglary. They are disturbed by the householder, V. D knows that P is armed with a knife. P uses the knife to stab and kill V. D is guilty of murder if he foresaw that P, as an incident of the joint venture might commit that offence: Chan Wing-Siu  A.C. 168; Powell and Daniels 1 A.C. 1. The rationale for the joint enterprise liability rule is that D, by attaching himself to the venture to commit one offence, consciously accepts the risk that a co-adventurer might commit another offence.
- The inter-relationship between secondary participation and joint enterprise has not been the subject of detailed consideration by the courts but the issue may be resolved by the Supreme Court in R v. Gnango  EWCA Crim. 1691. In that case D’s conviction for murder was quashed by the Court of Appeal. D and D1 were involved in a gunfight. The case for the Crown was that they were both involved in a joint enterprise to commit affray with foresight that murder might be committed. The Crown had conceded that there could be no joint enterprise on the basis of an agreement by D1 and D2 to shoot at each other. The Court of Appeal questioned whether this concession was right and suggested that as a matter of policy the criminal law might require the imposition of liability in cases of duels between opposing persons.
What Must The Prosecution Prove To Establish Secondary Liability?
- The reason why the law of secondary liability is so complicated is because it is necessary to consider the acts and state of mind of both D and P.
- P may be guilty of an offence which requires proof of certain conduct coupled with any one of a number of fault elements (intention, recklessness, maliciousness, negligence, knowledge, belief, suspicion).
- D as a secondary party is the person who with the requisite state of mind aids, abets, counsels or procures the principal offender to commit the offence.
- It follows that in D’s case it is necessary to prove both a conduct element (actus reus) and fault element (mens rea).
The Conduct Element: Procuring
- Procuring means to produce by endeavour. Causation is vital: Attorney General’s Reference (No. 1 of 1975)  Q.B. 773. While causation is vital, the procuring need not be the sole or decisive reason why P committed the offence. It is sufficient if it played some part in P’s decision to commit the offence. In some circumstances the procuring need not be known to P. For example, D laces P’s drinks and P, unaware of what has happened, drives his vehicle with excess alcohol.
The Conduct Element: Aiding, Abetting and Counselling
- Aiding means providing assistance or giving support to P and there must be actual assistance. For example, D sends P a torch to use in the commission of a burglary. Before it arrives P leaves to commit the offence.
- P need not be aware of the assistance provided he is in fact assisted. For example, P intends to kill V. D prevents Y from warning V of the danger.
- In the case of aiding, it is not necessary to prove that P was aware of D’s contribution to the offence. For example, D knows that P intends to assault V. D meets V and sends him in P’s direction.
- Abetting means to incite by aid, to investigate or encourage. Encouragement must have the capacity to act on P’s mind and therefore P must be aware of D’s encouragement. For example, P is about to attack V, D shouts “Hit V.” P does not hear. D is not guilty as a secondary party. However, D would be liable if P heard what he had said and even if it made no difference to his course of action; because he had already made up his mind to assault V.
- Counselling involves the provision of advice or information and encompasses urging someone to commit an offence.
Presence At The Scene Of A Crime
- Voluntary presence at the scene of a crime may be capable of constituting encouragement but in such a case D must intend that his presence should encourage P, and P must in fact be encouraged by D’s presence: Coney (1882) 8 Q.B.D. 534. In Wilcox v. Jeffrey  1 All E.R. 464, D’s presence at a jazz concert given by a performer who did not have a work permit encouraged a contravention of an immigration offence.
- There is no general duty in English law to prevent crime (although a citizen has a duty, if called upon, to assist a constable to prevent a breach of the peace: R v. Brown (1841) Car & H 314). As a matter of general principle the criminal law is reluctant to impose liability for omissions as this has the potential to widen the scope of liability to an exorbitant degree. Consistent with this general rule an omission to act does not ordinarily fix D with secondary liability.
- There are two exceptions to the general rule:
(i) where D is under a legal duty to act;
(ii) where D fails to exercise an entitlement to control the actions of P.
- In the case of (i) above, failure to discharge the duty is capable of constituting assistance or encouragement. For example, D, a security guard omits to keep watch on his premises which are burgled by P.
- In the case of (ii) above, failure to exercise the entitlement may render D liable for an offence that P commits as a result. For example, D owns a car in which he is travelling as a passenger. P, the driver, drives dangerously. D is also guilty of dangerous driving. It should be noted that the precise scope of this exception to the general rule is unclear.
The Fault Element
- The fault element of secondary liability is notoriously complicated. This is because D’s state of mind must relate to what he himself does and what he knows about P (that isP’s conduct and state of mind). This means that it is necessary to consider:
- D’s state of mind in relation to his own act of assistance or encouragement;
- D’s state of mind in relation to the commission of the principal offence by P.
- Suppose D is a shopkeeper. D sells P a hammer. P uses the hammer to assault V. D has done an act which contributed to (assisted) the commission of the assault. Is D guilty as a secondary party? It depends. If D had no idea that P would use the hammer to assault V, D is not implicated in P’s conduct and is not guilty as a secondary party. But, what would the prosecution be required to prove to establish D’s guilt?
- The first aspect of the fault element is that D must intend the act of assistance or encouragement. It is the assistance or encouragement that must be intended, not the ultimate crime. For example, D may hand P a jemmy knowing that P intends to use it to commit a burglary. D may hope that P changes his mind but this is irrelevant. (It was because of the potential scope of liability that Professor Glanville Williams argued for an exception from liability for shopkeepers. This was on the basis that the seller of an ordinary marketable commodity should not be his buyer’s keeper in the criminal law.)
- In the ‘mere presence’ type of case the prosecution must also prove that D intended to assist or encourage P, in the sense of acting to do so: R v. Coney (1882) 8 Q.B.D. 554, where D’s voluntary non-accidental presence at a prize fight was capable of encouraging the battery.
- The prosecution must prove that D believed that his conduct has the capacity to assist or encourage P (although some of the cases suggest that D’s belief must be that his conduct is encouraging to P). Procuring is a special case because it requires D to endeavour to cause the commission of the offence.
D’s State Of Mind In Relation To The Commission Of The Offence By P
- In Johnson v. Youden  1 K.B. 544, Lord Goddard C.J. said: “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 the principal offence.” This statement of principle was subsequently approved by the House of Lords in two cases: Churchill  2 A.C. 224 and Maxwell  1 WLR 1350.
- It is therefore necessary to establish what is meant by the “essential matters” and what is meant by “know.”
- In their report on secondary participation, the Law Commission concluded that the essential matters are fourfold:
- D must “know” that P is going to do an act which satisfies the conduct element of the offence (but not necessarily the details of the act).
- D must “know” of the circumstances necessary to constitute the offence. (For example, D sells P a hammer believing that P will use it to cause damage to property belonging to P. One circumstance that must be present in the offence of criminal damage is that the property belongs to another person. If P uses the hammer to damage property belonging to V, D is not guilty, as a secondary party, to P’s offence of causing criminal damage.)
- As a general rule D must “know” the consequence element of the offence. But an exception arises if the principal’s liability for the consequence is ‘constructive.’ For example, D assists P to assault V. Both D and P intend to cause V only minor harm. P hits V and V falls over and dies. P is guilty of manslaughter. So too is D.
- D must “know” that P will act with the fault element required in relation to the principal offence. For example, D assists P to appropriate property belonging to another. P does so dishonestly and with an intention permanently to deprive that other person of the property. D is guilty as a secondary party if he ‘knew’ that P would act with that state of mind.
- The Law Commission concluded that the requirement of knowledge is satisfied if D knows or believes that:
- P is committing or will commit the conduct element of the offence;
- P is doing or will do so in the circumstances and with the consequences, proof of which is required for conviction of the offence.
- As the Law Commission noted, despite what was said by Lord Goddard in Johnson and Youden and despite the fact that that case was approved by the House of Lords on two occasions, there are decisions of the High Court and the Court of Appeal which appear to dilute the requirement of knowledge. These cases provide some support for four possible tests:
- D must believe that P would or might commit the conduct element of the offence:Blakely & Sutton v. Director of Public Prosecutions  RTR 405;
- D must foresee the risk of a strong possibility that P will commit the offence: R v. Reardon  CLR 392;
- D must contemplate the risk of a real possibility that P will commit the offence: R v. Bryce  EWCA Crim. 1231;
- D must foresee that it is likely that P will commit the offence: R v. Webster EWCA Crim. 415.
- It is debateable as to whether these cases are a safe guide to the fault requirement. First, they are inconsistent with Johnson and Youden. Secondly, they are inconsistent with each other. Thirdly, they rely on cases of joint venture, where the principles of liability appear to be different. Finally, the statements concerning liability were not essential to the Court’s conclusion.
- Taken at face value, Lord Goddard’s statement in Johnson and Youden requires ‘knowledge’ of the essential matters. This requirement would ordinarily be satisfied if D believed that a fact exists or, in the case of future facts, that D believes they will exist. (D may also be held to know a fact where he deliberately shuts his eyes to the obvious and refrains from enquiry. In a case of wilful blindness, D is treated as having actual knowledge because he has intentionally chosen not to inquire on the basis that it is folly to be wise.)
- The issue of the fault element in secondary participation will have to be considered by the courts at some point. At the moment there is a conflict in the authorities and there is a potential for the net of criminal liability to be widened to an excessive degree.
- There is one authority which appears to suggest that law enforcement officials will not be liable if they participate in an offence already laid on in order to mitigate the consequence of an offence: R v. Birtles  2 All E.R. 1131. And in Williams v. Director of Public Prosecutions (1993) 98 Cr.App.R. 209, it was held that police officers had not encouraged a crime by leaving exposed cartons of cigarettes in an unguarded van in order to tempt D to commit an offence. These authorities appear to be inconsistent withYip Chiu-Cheng  1 A.C. 111.
The Serious Crime Act 2007
- The common law principles relating to secondary party liability must now be read together with the Serious Crime Act 2007, which came into effect on 1st October 2008.
- The 2007 Act abolished the common law offence of incitement which imposed liability in respect of conduct by D that encouraged P to commit an offence. This was an inchoate offence and liability was not derivative. Provided D satisfied the fault element of the offence, he was liable as soon as the encouragement came to P’s attention. If P was in fact encouraged and went on to commit the offence, D was guilty of the offence as an accessory.
- At common law, incitement involved encouraging another person or group of persons to commit an offence. It was necessary to show that the encouragement had come to the attention of the intended recipient but it was not necessary to prove that anyone was in fact encouraged (although D could be convicted of attempting to incite, provided that the offence incited was triable on indictment).
- The fault element of incitement involved two elements. First, that D’s purpose was that P should commit the principal offence. Secondly, that D knew of the circumstances of the act incited which were elements of the crime in question.
- Prosecutions may still be brought at common law in respect of any acts of incitement committed wholly or partly before 1st October 2008.
- The 2007 Act creates three new offences:
- intentionally encouraging or assisting an offence (section 44);
- encouraging or assisting an offence, believing it will be committed (section 45);
- encouraging or assisting offences, believing one or more will be committed (section 46).
- In respect of each offence, the prosecution must prove that D did an act that was capable of encouraging or assisting the commission of an offence (or offences). It is immaterial whether any anticipated offence is ever committed and it does not matter whether anyone was in fact assisted or encouraged.
- D’s act may take a number of different forms, including a course of conduct or a failure to discharge a duty. By reason of section 52 and Schedule 4 an act committed abroad may suffice if certain jurisdictional requirements are satisfied, as may an act in England and Wales that is capable of encouraging or assisting the commission of an offence abroad.
- The fault elements of the offence are complicated.
- In the case of section 44, D must specifically intend to encourage or assist the commission of the anticipated offence. This requires the prosecution to prove:
- D intended to encourage or assist the doing of an act which would amount to the commission of an offence;
- If the offence is one requiring proof of fault, that D intended that the act would be done with that fault or was reckless as to whether or not it would be done with that fault or D’s state of mind was such that were he to do it, it would be done with that fault; and
- If the offence is one requiring proof of particular circumstances or consequences, that D believed that the act would be done in those circumstances or with those consequences or was reckless as to whether or not it would be done in those circumstances or with those consequences.
- In the case of section 45, the offence is committed if D does an act capable of encouraging or assisting the commission of an offence and he believes that the offence will be committed and that his act will encourage its commission. The mens rea or fault element is similar to the offence under section 44, save that it is sufficient if D believes that an offence will be committed.
- In the case of section 46, the offence is committed if: (i) D does an act capable of encouraging or assisting the commission of one or more criminal offences and he believes that one or more of those offences will be committed (but has no belief as to which); and (ii) that his act will encourage or assist the commission of one or more of them. The mens rea or fault element is similar to the offence under section 44. Section 46 is intended to deal with the situation where D knowingly provides assistance or encouragement without knowing the precise details of the offence. For example, D provides P with a gun believing that it will be used either to commit a robbery or to commit a murder.
- Section 52(1) provides that if D knows or believes that the criminal offence he anticipates might take place wholly or partly in England or Wales, he may be guilty of an offence under section 44, 45 or 46 no matter where he was at the relevant time. If it is not proved that D knew or believed that what he anticipates might take place wholly or partly in England and Wales, he is not guilty of an offence unless certain conditions apply. These conditions, in summary, are as follows:
- D acts wholly or partly in England and Wales and the act he anticipates would still be punishable under English law, even if committed abroad.
- D acts wholly or partly in England and Wales and the act he anticipates would be an offence under the law applicable in the place where the act is to take place.
- D would himself be liable to prosecution under English law if he were to commit the anticipated offences in the place or country in question.
- Section 50 contains a defence of acting reasonably. It is a defence for an accused to prove that, at the time that he did the act which was capable of encouraging or assisting another person to commit an offence, he knew or believed, on reasonable grounds, that certain circumstances existed in respect of which it was reasonable for him to act as he did. By section 50(2) it is also a defence if D acts reasonably but on the basis of a reasonable mistake of fact. In other words, it may be reasonable for D to act as he did in circumstances as he believed them to be. The factors to be considered in determining whether it was reasonable for D to act as he did include the seriousness of the anticipated offence, any purpose for which he claims to have been acting or any authority by which he claims to have been acting.