Rabea Ashraf

Parties to Crime

An Overview of Complicity/Parties to Crime

The question of complicity arises when two or more people play some part in the
commission of an offence.
What are the reasons for bringing accomplices within the ambit of the criminal law?
Ashworth says,
As a general reason for bringing accomplices within the ambit of criminal liability, one
might say that knowingly assisting one or more persons in a criminal enterprise deserves
the criminal sanction; the culpability resides in the decision to support the commission of
the principals crime, and the assistance is a practical manifestation of that support. A
consequentialist reason for convicting those who help and support a criminal enterprise can
also be found: penalizing helpers and other participants should act as a deterrent, thereby
making offences less likely to occur.
Principal offender: The person who perpetrates the crime is referred to as the
principal. A person is a perpetrator if his act is the most immediate cause of the actus
reus of the offence.
E.g. in a murder case it is the person whose act caused the death of the victim.
Joint principal: There can be more than one principal. Does a person contribute to
the actus reus of an offence by his/her own independent act or by merely aiding,
abetting etc?
Innocent agent: An innocent agent is a person whose act causes the harm to the
victim, but who is innocent: either because he lacks criminal capacity (e.g. he is insane
or under the age of criminal responsibility) or he is unaware of the criminal nature of
the act he is doing (e.g. a passer by who touches a booby trap bomb, setting it off) Where
an innocent agent is involved the principal is the person who causes the innocent agent
to perform the actus reus and the innocent agent is not guilty of any crime.
Accessories/accomplices: The accomplice is a person who aids, abets, counsels or
procures the principal in the commission of the offence.
E.g. in a murder case, the accomplice would be the person who assisted or encouraged
the principal to commit the crime.
Smith & Hogan say, The person who directly and immediately causes the actus reus of
a crimeis not necessarily the only one who is criminally liable for it.
Those who aid, abet, counsel or procure the commission of an offence are called secondary
parties.

Secondary parties
Section 8 of the Accessories and Abettors Act 1861:
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.
This section makes three points of crucial importance to the law of accomplices:
1) There must be an offence committed by the principal. The significance of this is
that if the accused offers aiding, abetting, counselling, or procuring to the
principal, but the principal does not go on to commit an offence then the
accused is not guilty as an accessory.
2) The accomplice is charged with the basic offence. For example, an accused will
be charged with murder, even though the allegation is that he has been an

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accomplice to the murder. This is particularly significant in the context of

murder because a mandatory life sentence automatically follows a conviction of
murder.
3) The four forms of being an accomplice are aiding, abetting, counselling and
procuring. It is necessary to prove only that the defendant was an accomplice in
one of these four ways.
Section 44 Magistrates Courts 1980 extends liability on such grounds to summary
offences.
Secondary liability is derivative.
Clarkson, Keating & Cunningham say,
The liability of the secondary party derives from, and is dependent on, the commission of
an offence by the principal offenderaccessorial liability is backwards-looking. A crime
must have been committed.
The two foundational features of complicity liability:
(a) its derivative nature
(b) its principle of eligibility for equal punishment.

Actus reus of secondary party

There are five ways that one can be an accomplice:
Aiding Aiding covers offering help or assistance to someone. This includes giving
someone a piece of equipment or some information which helps them commit a
crime. It is not necessary to show that the assistance was essential to the commission
of the crime, nor that without it the crime could not have taken place. Indeed all that
is required is that the assistance was of some help to the principal in committing the
crime. However, to constitute aiding an act must actually be of assistance in
commission of the crime.
Abetting Abetting is defined as to incite, instigate or encourage. However, this
is a very similar definition to what counselling is. Devlin J proposed in NCB v
Gamble that abetting was encouragement at the time of the offence, while
counselling was encouragement before the crime took place.
Counselling Counselling involves encouraging, inciting or instigating an offence.
This may involve urging someone to commit the offence or simply indicating that the
commission of the offence would be desirable. There is no need to show that the
counselling caused the offence.
Procuring To procure has been defined as to product by endeavour. In other
words, the accomplice has in a sense caused the principal to commit the offence. At
least the principal acted as a consequence of the accomplices acts. Procuring is
closely linked with the doctrine of innocent agency; the crucial difference being that
in procuring the principal is not entirely innocent (e.g. he does have the capacity to
commit the crime and has the relevant mens rea)
Party to a joint enterprise A joint enterprise arises where two or more people
together embark on the commission of a criminal offence. The two parties may
expressly agree to commit a particular crime, or this may be an unspoken
understanding. A common example is where two people decide to commit a burglary
together. Difficult cases arise where, in the course of committing the agreed crime,
the principal goes on to commit a different one. Some commentators think that a

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joint enterprise is simply a way of aiding, abetting, counselling, or procuring the

offence. Others argue, and this is the line the courts have taken, that there are special
mens rea requirements which attach to accessories which do not apply to joint
enterprises, and vice versa. A joint enterprise does not arise if the accused joins in
after the principal has committed the offence.
R v Gianetto [1997]
Herring page
889
Point of Law -> This is an example of counselling. In this case the trial judge suggested that
if a man said to a husband that he was about to kill his wife and the husband did as little as
patting him on the back, nodding, saying Oh goody, this would be sufficient to amount to
counselling.
Details of Case -> Gianetto made threats to his wife and paid a man to kill her. Gianetto was
arrested after his wifes death. The prosecution was unable to establish who had killed her.
He was convicted of murder on the basis that either he or someone acting on his behalf
killed her. He appealed on the basis that the judge had failed to indicate to the jury that they
had to be unanimous in deciding whether he was the principal or accessory.
Held -> The appeal was dismissed.
Lord Justice Kennedy said, The court were entitled to convict if they were all satisfied that
if he was not the killer, he at least encouraged the killing, and accordingly the ground of
appeal fails. There are two cardinal principles. The first is that the jury must be agreed upon
the basis on which they find a defendant guilty. The second is that a defendant must know
what case he has to meet. Where the Crown allege, fair and square, that on the evidence the
defendant must have committed the offence either as principal or as secondary offender,
and make it equally clear that they cannot say which, the basis on which the jury must be
unanimous is that the defendant, having the necessary mens rea, by whatever means caused
the result which is criminalised by the law. The Crown is now required to specify that
means, because the legal definition of the crime does not require it; and the defendant
knows perfectly well what case he has to meet.
Lord Widgery CJ in Attorney-Generals Reference (No. 1 of 1975) [1975]
It may well bedifficult to think of a case of aiding, abetting or counselling when the
parties have not met and have not discussed in some respects the terms of the offence
which they have in mindTo procure means to produce by endeavour. You procure a thing
by setting out to see that it happens and taking appropriate steps to produce that
happening. We think that there are plenty of instances in which a person may be said to
procure the commission of a crime by another even though there is no sort of conspiracy
between the two, even though there is no attempt or discussion as to the form which the
offence should takeYou cannot procure unless there is a causal link between what you do
and the commission of the offence.
Is there any real distinction between the terms?
Lord Widgery CJ in Attorney-Generals Reference (No. 1 of 1975) [1975] says,
We approach section 8 of the 1861 Act on the basis that the words should be given their
ordinary meaning, if possible. We approach the section on the basis also that if four words
are employed here, aid, abet, counsel or procure, the probability is that there is a
difference between each of those four words and the other three, because, if there was no
such difference, then Parliament would be wasting time in using four words where two or
three would do.

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The significance of this quotation is that it indicates that the words should be given their
normal meaning. This is all well and good, but abetting, procuring, and counselling are
not words in common usage and to give them a normal meaning is therefore not
straightforward. The second point is that Lord Widgery has made is that the four words are
to have distinct meanings. Again this is a little problematic; in particular, commentators
have struggled to find an independent meaning of the phrase to abet that is not covered by
aiding or counselling.
Clarkson, Keating & Cunningham say,
it is almost certain that no real conceptual distinction can be drawn between most
of the terms. Between them they embrace conduct which encourages or influences the
principal offender or helps him in the commission of the crime.
R v Clarkson and Carroll (1971)

Herring page 896

Point of Law -> Simply being present at the scene of a crime does not render you guilty as
an accomplice. This is because there is no duty of care to intervene and stop a crime taking
place.
Details of Case -> The defendant came across a man committing a rape and simply
watched.
Held -> He was found not to be an accomplice to the rape. This is part of the general rule
that omissions do not form the basis of criminal liability.
Wilcox v Jeffery [1951]

Allen page 220

Point of Law -> Voluntary presence at the scene of the crime, without more, may amount to
actual encouragement.
Details of Case -> As presence, as a paying member of the audience at a concert given by D,
amounted to aiding and abetting D to contravene the Aliens Order 1920. D had been
permitted to enter the UK only on condition that he take no employment. Further evidence
of As intention to encourage D was derived from As behaviour in that he had met D at the
airport and, after the concert, he wrote and published a laudatory review of the concert in
the periodical of which he was the proprietor. In this case there would clearly have been no
performance if there had been no audience so the presence of each member of the audience
was an encouragement to D to perform.
Held -> A had aided and abetted D.
R v Allan [1965]

Allen page 221

Point of Law -> Presence is not always sufficient to amount to encouragement.
Details of Case -> A was present at the scene of an affray. He was totally passive doing
nothing to offer encouragement to those involved in the fighting, although he harboured a
secret intention to join in if help was needed by the side which he favoured.
Held -> CA stated that before a jury can properly convict an accused person of being a
principal in the second degree to an affray, they must be convinced by the evidence that, at
the very least, he by some means or other encouraged the participants. To hold otherwise
would be, in effect to convict a man on his thoughts, unaccompanied by any physical act
other than the fact of his mere presence.
This case is distinguishable from Wilcox v Jeffery as, without spectators, the affray would
still have occurred so mere presence, without more, did not amount to encouragement.

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Parties to Crime

Tuck v Robson [1970]

Point of Law ->
Details of Case -> A landlord of a pub failed to intervene to prevent customers on his
premises drinking after hours.
Held -> He was found to have aided and abetted their crime.

Mens rea of complicity

Accessory needs to have mens rea in relation to own conduct & mens rea in relation to
conduct of the principal offender.
The mens rea requirement for an accomplice is that he does his acts of assistance intending
to assist the principal and foreseeing that the principal might go on to commit the offence
with the acts of assistance or encouragement.
Two-part test:
An intention to aid, abet, counsel or procure AND
Knowledge of any circumstances of the principal offence.
Ashworth says,
First, the accomplice must intend to do whatever acts of assistance or encouragement are
done, and must be aware of their ability to assist or encourage the principal. Secondly, the
accomplice must know the essential matters which constitute the offence.
Devlin J in National Coal Board v Gamble [1958] said,
aiding and abetting is a crime that require proof of mens rea, that is to say, of intention
to aid as well as knowledge of the circumstances, and that proof of the intent involves proof
of a positive act of assistance voluntarily done.
Smith and Hogan said,
It must be proved that D intended to do acts which he knew to be capable of assisting or
encouraging the commission of the crime. That is not the same thing as an intention that
the crime be committed.
Mens rea must be proven for an accessory to a strict liability offence even though mens rea
for the principal offender doesnt need to be proven.

What constitutes knowledge of the Principals offence?

R v Bainbridge [1960]
Point of Law -> Where a person supplies equipment to be used in the course of committing
an offence of a particular type, he is guilty of aiding and abetting the commission of any
such offence committed by the person to whom he supplies the equipment, providing that
he knows the purpose to which the equipment is to be put or realises that there is a real
possibility that it will be used for that purpose and the equipment is actually used for that
purpose.
Details of Case -> In helping someone else rob a bank, the defendant provided the principal
offender with the equipment in order to do so. He was subsequently charged with being an

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accessory to robbery. However the defendant appealed the conviction as he said he didnt
know the precise details of the robbery.
Held -> The appeal was dismissed as the court said you do not need to know the precise
details of an offence, but just need to be aware of the type of offence taking place.
Maxwell v DPP for Northern Ireland (1979)
Sufficient if accessory knew that one of a series of possible offences would be committed.
Crime must be within contemplation of the accessory.
Point of Law ->
Details of Case ->
Held ->
Main principal offender known IRA member. Plan to blow up pub. M drove them to pub.
Bomb goes off. Charged with unlawful explosion. Maxell accessory. Convicted at trial.
Appeals on ground that he didnt know precise details or type of offence. HL dismiss appeal.
Widen further Bainbridge test. Maxwell didnt need to know actual offence, just needed to
know what range of offences it was. Admitted he knew they were terrorists, and that theyd
be doing something illegal.
R v Powell; R v English [1999]

Herring page 904

Point of Law ->
Details of Case -> The HL heard two appeals. HL was looking to see what level of
knowledge is required in order for someone to be liable as a party to a crime.
In the first, Powell, Daniels and one other man called at the home of a dealer in
cannabis. As the dealer opened the door one of the group shot him. The three defendants
were charged with murder on the basis of joint interprise. Powell argued that he was
present solely to buy cannabis and had not taken part in the shooting. Daniels did not give
evidence but his barrister argued that Powell had fired the shot.
In the second case, English (aged 15) and Weddle were charged with the murder of a
police sergeant. The prosecution alleged that, as part of a joint enterprise, English and
Weddle attacked the sergeant with a wooden post. During the attack Weddle produced a
knife and stabbed the victim to death. English claimed that he had fled the scene before
Weddle produced the knife.
Both appeals focused on the correct definition of the mens rea required to convict an
accessory charged on the basis of a joint enterprise. The certified questions for their
Lordships were:
1) Is it sufficient to found a conviction for murder for a secondary party to a killing to
have realised that the primary party might kill with intent to do so or with intent to
cause GBH or must the secondary party have held such an intention himself?
2) Is it sufficient for murder that the secondary party intends or foresees that the
primary party would or may act with intent to cause GBH, if the lethal act carried out
by the primary party is fundamentally different from the acts foreseen or intended by
the secondary party?
Held -> The appeal was allowed.
It is sufficient for the conviction of murder for a secondary party to have realised that
in the course of the joint enterprise the principal might kill with intent or cause GBH with
intent. [Powell]
An accessory is not liable for murder where the principal kills with a weapon that the
accessory did not know the principal had & thus couldnt foresee the use of it. [English]

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BUT if the principal uses a different, but as deadly weapon, as the accessory
contemplated, then they can still be liable.
R v Uddin [1998]
Herring page 909
Point of Law -> If, after the production of an unforeseen weapon, the accessory continues
with attack, then they will be liable.
Details of Case -> Following a driving incident, six men attacked another man with bars and
poles including part of a snooker cue. Abdul Talib (one of the group) produced a flict knife
during the attack and fatally stabbed the victim. The only evidence that any of the group
knew about the knife was that of an eyewitness, who stated that someone had shouted stab
him. The stabber and Uddin were convicted of murder. Three of the other defendants were
convicted of manslaughter. The appeal was based on the judges direction to the jury about
the degree of knowledge required.
Held ->

Joint enterprise
Clarkson, Keating and Cunningham say,
Where two or more people embark on a joint unlawful enterprise, for example a burglary
or attack on someone, the law has long adopted the view that all the parties should be liable
for the direct and agreed consequences of that joint enterprise.

Limits of accessorial liability

Is it possible to convict A as an accessory without convicting B as the principal?
Bourne (1952)
Point of Law ->
Details of Case ->
Held ->
Cogan and Leak [1976]
Point of Law ->
Details of Case ->
Held ->
Can an accessory & principal be convicted of different offences from the same actus reus?
Lord Mackay in Howe [1987] said,
A hands a gun to D informing him that it is loaded with blank ammunition only and
telling him to go and scare X by discharging it. The ammunition is in fact live, as A knows,
and X is killed. D is convicted only of manslaughter, as he might be on those facts.
where a person has been killed and that result is the result intended by another
participant, the mere fact that the actual killer may be convicted only of the reduced
charge of manslaughter for some reason special to himself does not, in my opinion in
any way, result in a compulsory reduction for the other participant.

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R v Stewart and Schofield [1995]

Point of Law ->
Details of Case ->
Held ->
R v Gilmour [2000] (Court of Appeal of Northern Ireland)
Point of Law ->
Details of Case ->
Held ->

Withdrawal by a secondary party?

Reform
Law Commission Consultation Paper, Assisting and Encouraging Crime, Law Com C.P. No
131, 1993.
Law Commission Report, Inchoate Liability for Assisting and Encouraging Crime, Law
Com No. 300, Cm 6878, July 2006.
Sullivan, Inchoate Liability for Assisting and Encouraging Crime The Law Commission
Report [2006] Criminal Law Review 1047.
Law Commission Report, Participating in Crime, Law Com No. 305, Cm 7084, May 2007.
Law Commission Bill on Participating in Crime and commentary: available at:
http://www.lawcom.gov.uk/docs/lc305.pdf