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THE LAW COMMISSION

PARTICIPATING IN CRIME

To the Right Honourable the Lord Falconer of Thoroton, Lord Chancellor and Secretary of State for Justice

PART 1

INTRODUCTION

1.1      This is the second of two reports in which we consider the circumstances in which a person ('D') ought to be criminally liable for assisting or encouraging another person ('P'), to commit an offence ('the principal offence').^[1]

Example 1A

D and P agree to rob V. While D keeps watch, P approaches V with a knife.

(i) The police arrest P before he reaches V.

(ii) P robs V.

The conduct that the offence of robbery proscribes is the appropriation of property by the use or threatened use of force.^[2] In example 1A, only P will engage in the proscribed conduct. P is the principal offender. However, by agreeing to the offence and by keeping watch, D will be participating in the offence.

1.2      In the first report,^[3] we considered D's liability in cases like example 1A(i). We recommended that even if P does not subsequently commit the principal offence it still ought to be possible for D to be liable for assisting or encouraging its commission ('inchoate liability'). In contrast, this second report considers cases like example 1A(ii), focusing on the circumstances in which D ought to be held liable for the full offence should P commit or attempt to commit it ('secondary liability').^[4] Secondary liability is a more serious form of liability than inchoate liability. If D is secondarily liable, D, as well as P, is convicted of the principal offence. D is labelled in the same way as P and may be subject to the same penalty as P.

1.3      The concepts of inchoate liability and of secondary liability have long been recognised at common law. However, each is beset by problems. At common law the scope of inchoate liability is restricted to cases where D's conduct consists of encouraging, as opposed to assisting, P to commit a principal offence. This has had an impact on the scope of secondary liability. The common law has compensated for the limited scope of inchoate liability by over-extending the scope of secondary liability.^[5] The primary recommendation of the first report is that inchoate liability should extend beyond encouragement to include acts of assistance as well. This recommendation now enables the problem of secondary liability's scope to be addressed along with problems that have arisen in relation to the very nature of such liability, without the distraction of a simultaneous concern with the nature and scope of inchoate liability.

1.4      Taken together, the recommendations contained in both reports would, if implemented, result in a scheme whereby inchoate and secondary liability will support and supplement each other in a way that is rational and fair.

THE PROBLEMS WITH THE CURRENT LAW OF SECONDARY LIABILITY

General problems

Parity of culpability

1.5      At the core of the doctrine of secondary liability is the notion that D can and should be convicted of the offence that P commits even though D has only "aided, abetted, counselled or procured"^[6] P to commit the offence. It follows that if D is to be liable to the same stigma and penalty as P, D's culpability should be at least comparable to that of P. With this in mind, we now explain what we mean by 'parity of culpability'.

1.6      In the first report, we said that a criminal offence could consist of one or more of three external elements: conduct, the circumstances in which the conduct takes place and the consequences of the conduct.^[7] Leaving aside cases of voluntary intoxication and cases where P can incur criminal liability by an omission, liability normally requires that P intended to perpetrate the conduct that constitutes the conduct element.

1.7      It might be thought, therefore, that if P's liability for a principal offence is dependent on his or her conduct being intended, D also ought to incur liability for the principal offence only if he or she also intended that P should engage in its conduct element. In the absence of such an intention on D's part, there is no parity of culpability.

1.8      However, the present law, in order to overcome the problems caused by the limited scope of inchoate liability at common law, does not require this:

Example 1B

D works in a sports shop. P calls at the shop and decides to purchase a baseball bat. Overhearing the conversation between P and P's girlfriend, D believes that P is likely use the baseball bat not only to play baseball but also to assault V. Nevertheless, D sells the baseball bat to P. P uses the bat to assault V.

The case law suggests that D is guilty of assault despite the fact that he did not intend, desire or agree that P should attack V. D's belief that P is likely to use the bat to attack V is sufficient to render D complicit in and liable for P's offence.^[8]

1.9      In sanctioning the conviction of D for assault in example 1B, the current law fails to afford proper weight to the principle that ought to underpin secondary liability, namely parity of culpability. P intended to attack V whereas D did not intend that V should be attacked.^[9] In this report, we make recommendations which, if implemented, would prevent D in example 1B being convicted of assault unless D intended P to attack V. Instead, D would be convicted of an inchoate offence of assisting or encouraging assault.^[10]

JOINT CRIMINAL VENTURES

1.10      In example 1B, D and P are not parties to a joint criminal venture. Joint criminal ventures are cases where D and P either agree to commit an offence or share with each other an intention to commit an offence and the offence is subsequently committed.^[11] In example 1B, had D agreed with P that P should use the bat to assault V, D and P would have been parties to a joint criminal venture.

1.11      This report also deals with joint criminal ventures. In such cases, the facts will often reveal that D intended that the conduct element of one or more principal offences should be committed. However, there will be cases where, pursuant to the joint criminal venture, P commits an offence that D did not intend P (or another participant in the joint venture) to commit. In the context of a joint criminal venture between D and P, it is our view that the principle of parity of culpability does not require that D actually intend the conduct element of a particular offence to be committed by P. D's agreement (or shared joint intention) to participate in the joint criminal venture itself provides a substantial element of culpability, meaning that there can be parity of culpability between D and P even if D did not in addition intend P to engage in the conduct element of an offence. There will be such parity of culpability if, for example, D foresaw that P might engage in the conduct element of a particular offence.^[12] In such circumstances, it is acceptable to label and punish D and P in the same way.

A doctrine characterised by uncertainty and incoherence

1.12      The doctrine of secondary liability has developed haphazardly and is permeated with uncertainty. Crucially, these features affect not merely the margins of the doctrine but key concepts. Two examples are the fault element of secondary liability and the defences that are available to D. In the consultation paper published in 1993,^[13] the Commission emphasised the unsatisfactory state of the law:

It displays to a marked degree what is often the characteristic of an area of criminal law governed by the common law, that clear rules and agreed statements of principle are conspicuously lacking from it.^[14]

More recently, Professor Ashworth has described the law as:

… replete with uncertainties and conflict. 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.^[15]

1.13      It must be remembered that the doctrine of secondary liability is itself of more than marginal importance. It is a doctrine of general application which determines the liability of secondary parties for all offences ranging from the most trivial to the most serious, namely murder. It is unacceptable that such an important basis of criminal liability should be characterised by the features referred to by Professor Ashworth.

Specific problems

1.14      Having referred to the general problems of parity of culpability, on the one hand, and of incoherence and uncertainty, on the other hand, we now seek to identify some of the specific problems which lie at the core of the doctrine of secondary liability.

D's state of mind in relation to the commission of the principal offence

1.15      D's state of mind in relation to the commission of the principal offence might be thought to be a fundamental issue. Yet, as Professor Glanville Williams has observed:

The authorities do not state a consistent fault principle for accessories. Sometimes they require a purpose to bring about the crime; sometimes knowledge; sometimes an intention in a wider sense; sometimes they are satisfied with an intention to play some part in bringing it about; sometimes they use a formula which embraces recklessness.^[16]

1.16      The failure to provide a clear and authoritative set of rules manifests itself in a number of ways:

(1) There is uncertainty as to what state of mind D must have in relation to P committing the principal offence:

Example 1C

D sells P some petrol believing that P may use it to make a petrol bomb with which he might commit arson.

Example 1D

D lends his car to P so that P can drive his pregnant wife to the hospital. D believes that P has been drinking alcohol and is probably over the prescribed limit.

On this issue, the authorities are in impressive disarray. At common law, there is support for at least four different tests for determining D's liability.^[17]

(2) There is uncertainty as to the circumstances in which D can be secondarily liable for an offence committed by P which is different from the offence that D believed P would commit:

Example 1E

D helps P to take V's car without V's consent. D does so in the belief that P merely wants to use the car temporarily and that P will in due course return it to V. Instead, P decides to keep it.

Had D's belief been correct, P would have committed the offence of taking a motor vehicle without the authority of its owner.^[18] Instead, the offence that P has committed is theft (of a motor vehicle).^[19] On one view, whether D is guilty of theft depends on whether taking a motor vehicle without authority is an offence of the same 'type' as theft. There is no clear guidance to assist in determining whether offence x is an offence of the same 'type' as offence y.

(3) The common law provides no clear answer as to the circumstances in which D is secondarily liable where the offence that P commits is the same type of offence that D believed P would commit, but is, in some manner, factually different:

Example 1F

D, a racist, encourages P to set fire to the local Afro-Caribbean community centre. P, finding blanket security at the centre, instead sets fire to a local public house that is frequented by people from the centre. Unbeknown to P, D's brother owns the public house.

(4) It is unclear whether D's secondary liability can extend indefinitely on the basis of a single act of assistance or encouragement:

Example 1G

D and P agreed to commit a burglary in London in 2005. While D acted as lookout, P was to perpetrate the burglary using a jemmy provided by D. P fell ill and the enterprise was abandoned. D forgot to request the return of the jemmy. In 2007, P uses the jemmy to commit a string of burglaries in Liverpool.

In each of examples 1C to 1G, it is impossible to state with confidence whether or not, under the common law, D is secondarily liable for the offence committed by P.^[20]

1.17      Professor Sullivan has captured the overall lack of a settled set of principles and rules in relation to the fault element of secondary liability:

Arguably, under the current law, it may be enough for the prosecution to prove that D was no more than reckless in the sense of adverting to the possibility that P might be offending in his presence, or that he might in the future use assistance provided by D. If one then mixes in the attenuations that may be permissible under particular readings of Bainbridge and Maxwell, a proposition of impressive inculpatory sweep emerges. D, at present, may become an accomplice if he suspects that he may assist P in one of a number of offences that he contemplates P might commit, if the offence that P perpetrates turns out to be an offence which D had not contemplated P would commit, provided that it is an offence of the same "type" as one of the offences that D had contemplated P might commit.^[21]

Liability for omissions

1.18      The circumstances in which a person can incur liability for an omission is an issue of constitutional and social importance. According to Professor Ashworth:

… the key issue question in accessorial liability is simple to state: can a person be convicted as an accomplice merely for standing by and doing nothing while an offence is being committed?

Yet, the common law fails to provide clear rules for identifying the circumstances in which D can be secondarily liable for encouraging or assisting P to commit an offence by virtue of refraining from exercising an entitlement to control P's actions:

Example 1H

D decides to hold a party at his house. In the course of the evening, D is told that in the upstairs bedroom a guest, P, is about to rape another guest, V, who is the worse for drink. D decides to do nothing. P rapes V.

Under the present law, it is uncertain whether D can be convicted of rape.

Performing a legal duty

1.19      The common law appears to exempt D from secondary liability merely because D, in assisting P to commit the principal offence, performed a legal duty:

Example 1J

P lends D a jemmy. Later P demands the jemmy back. D knows that P intends to use the jemmy to burgle V's premises. D, who hates V, returns the jemmy so that P can commit the burglary. P commits the burglary.

In National Coal Board v Gamble ('NCB v Gamble')^[22] Devlin J said that D was not liable because by returning the jemmy D was refraining from committing the tort of detinue.^[23] The appeal to civil law concepts is of dubious merit. Criminal liability then becomes dependent on complex civil law issues that attain an inflated and unwelcome significance.

Joint criminal ventures

1.20      The doctrine of secondary liability determines the circumstances in which D may be held criminally liable for a principal offence which he or she 'aids, abets, counsels or procures'^[24] P to commit and which P does commit. In some, but not all, cases, D aids, abets or counsels P to commit an offence by virtue of being a party with P to a joint criminal venture.

1.21      Joint criminal ventures are cases where D and P agree to commit or share a common intention to commit an offence ('the agreed offence'):

Example 1K

D and P agree to burgle V's house. D gives P a jemmy and P commits the burglary.

Example 1L

D and P are in a group that is being abused by another group that includes V. Simultaneously, and without communicating, D and P chase V. D holds V down while P punches V.

In each example D and P are parties to a joint criminal venture. In example 1K, D and P have expressly agreed to commit an offence and they share a common intention to commit the agreed offence. In example 1L, although there is no express agreement and no communication between them, D and P share a common intention to assault V. There is a tacit and reciprocal understanding that V should be attacked.

1.22      By contrast:

Example 1M

D is the process of attacking V. P, who does not know D, watches from a distance. P, who hates V, decides to join in when he sees that D has temporarily ceased his attack. P walks over and kicks V. ^[25]

Although both P and D each intend to assault V, they have not agreed to assault V and their common intention is not a shared intention. They are not parties to a joint criminal venture.

1.23      Provided that the only offence that P commits is the agreed offence, most cases of joint criminal venture pose no particular problems. Indeed, in one respect, such cases are likely to be less problematic than cases where D and P are not parties to a joint criminal venture. This is because the mere fact of agreement is sufficient to render D liable for the agreed offence, with no requirement that D does anything further by way of encouragement or assistance.^[26] By contrast, where D and P are not parties to a joint criminal venture, there must be a discrete act of encouragement or assistance by D in order to render him or her liable as a secondary party.^[27]

1.24      In addition to or instead of the agreed offence, P may commit another offence ('a collateral offence'):

Example 1N

D and P agree to commit a robbery against the first person, V, that they encounter. D knows that, should V be female, there is a real possibility that P will rape her. D urges P not to commit rape should V be female. In the event, they encounter V who is female. They commit the robbery and, despite D's protests, P rapes V.

As will become apparent, the courts have been greatly troubled in determining the circumstances in which and the extent to which D should be held liable for a collateral offence, particularly if the collateral offence is an unlawful homicide:

Example 1P

D and P agree to attack V by punches and kicks to the body. Unknown to D, P is armed with a knife. In the course of the attack, P fatally stabs V. P's intention was to kill V.

1.25      The question that has greatly troubled the courts is this: if P and D are parties to a joint criminal venture which does not have as its object the killing of V,^[28] to what extent, if any, should D be held responsible for V's death in the event that P kills V? The courts have addressed this question on a number of occasions but each case has created as many ambiguities as it has resolved. In Part 2, we provide a brief account of the relevant case law.^[29] In this report, however, we do not set out our recommendations for reforming the law of complicity in relation to homicide. This is because we have already done so in our recent report on the law of homicide.^[30]

1.26      There is also a wider doctrinal issue which is not confined to cases where the principal offence is a homicide offence. Some commentators maintain that the doctrine of secondary liability, properly applied, cannot determine D's liability for a collateral offence.^[31] This is, it is said, because D has not 'aided, abetted, counselled or procured' P to commit the collateral offence.^[32] Taking example 1N, the argument is that D cannot be said to have 'aided, abetted, counselled or procured' P to commit rape when D has expressed opposition to that offence being committed. On this view, secondary liability and criminal joint venture liability are distinct doctrines.^[33] The doctrine of secondary liability governs D's liability for the agreed offence but a separate joint criminal venture doctrine governs D's liability for the collateral offence.^[34] We consider the doctrinal issue in more detail below.^[35]

1.27      Finally there is the issue, already referred to, concerning the principal of 'parity of culpability'.^[36] For all offences committed pursuant to a joint criminal venture, we believe that there can be parity of culpability between D and P even in the exceptional case where, despite agreeing, D does not intend P to commit the principal offence. We set out our reasons in Part 3.^[37]

The doctrine of innocent agency

1.28      The essence of the common law doctrine is that if D intentionally causes an innocent agent (X) to commit an offence, D is guilty of the offence as a principal offender.^[38] However, under the current law uncertainty surrounds the contours of the common law doctrine.

1.29      The problem, actual or perceived, has arisen when the principal offence can be committed only by a person who meets a particular description and D does not meet that description. For example, where D, who is not married, causes X, who is married, to 'marry' V by falsely telling X that his wife has died. On one view, convicting D as a principal offender is illogical because the definition of bigamy stipulates that a principal offender can only commit the offence if he or she is already married.

Causing the commission of a no-fault offence

1.30      Under the current law, if D 'procures' the commission of a no-fault offence by P,^[39] P is guilty of the offence as a principal offender and D is guilty of the offence as a secondary party. However, in our view, holding D liable for the offence as a secondary party does not accurately reflect the nature of D's wrongdoing. This is because in reality D commits the offence through P. In Part 4 we set out our recommendation for the creation of a new offence which would better reflect the nature of D's liability.^[40]

THE COMMISSION'S PROPOSALS IN 1993

1.31      In the CP, the Commission recognised the problems that we have referred to above. The Commission's proposed solution was extremely radical. It entailed no less than the abolition of secondary liability. Instead, the Commission proposed that D's liability should always be inchoate.

The difference between inchoate liability and secondary liability

1.32      If D is secondarily liable, he or she is convicted of the principal offence that P commits. It follows that for D to be secondarily liable, P must commit the principal offence. In many cases, however, P does not go on to commit the principal offence that D has sought to assist or encourage. At common law, D can still be criminally liable provided that his or her conduct consisted of encouragement as opposed to assistance. For example, if D encourages P to commit burglary but P is arrested before he or she can commit the burglary, D is guilty of the common law inchoate offence of incitement (to commit burglary). By contrast, if D, in return for payment, provides P with a jemmy knowing that P intends to use it to commit burglary, D incurs no criminal liability if P is arrested before being able to commit the burglary.

The Commission's reasons for rejecting secondary liability

1.33      The Commission set out its reasons in the following passage:

However, the conclusion that an accessory's liability is, even in the present law, essentially inchoate in nature springs directly from analysis of the conduct that founds that liability in law. An accessory's legal fault is complete as soon as his act of assistance is done, and acts thereafter by the principal, in particular in committing or not committing the crime assisted, cannot therefore add to or detract from that fault. Moreover, it is not the present law, and it is logically impossible that it should become the law, that the accessory must cause the commission of the principal crime; and for that reason also the actual occurrence of the principal crime is not taken into account in assessing the accessory's culpability. Even under the present law, therefore, where the principal crime has to be committed before accessory liability can attach, the conditions for the liability of the accessory should be, indeed can only be, assessed at the time of, and in relation to, that act of assistance.^[41]

1.34      In place of secondary liability, the Commission, recognising that at common law there is no inchoate liability for assisting, as opposed to encouraging the commission of a principal offence, proposed that there should be two statutory inchoate offences:

(1) assisting P to commit an offence; and

(2) encouraging P to commit an offence.

1.35      Under the Commission's proposals in the CP, D's liability would always be inchoate even if P committed the principal offence. Accordingly, if D lent a firearm to P so that P could murder V and P used the firearm to murder V, D would no longer be guilty of murder (secondary liability) but of assisting murder (inchoate liability).

1.36      Although we agree that the scope of inchoate liability should be extended to cover assisting, we no longer support the view that secondary liability should be abolished. Instead, we are of the view that reform of inchoate liability for assisting and encouraging crime, rather than being a reason for dispensing with secondary liability, presents an opportunity for its reform. This leads us to consider the first report.

THE FIRST REPORT

1.37      The first report is pivotal to an understanding of the recommendations that we make in this report. This is for two reasons. First, in that report, we recommended that the doctrine of secondary liability should be retained. Secondly, we made recommendations for reform of inchoate liability for assisting and encouraging crime which, if implemented, would facilitate reform of secondary liability. We consider each of these in turn.

Retaining the doctrine of secondary liability

1.38      In the first report, we said that we no longer favoured the abolition of secondary liability. Instead, D's liability for assisting or encouraging crime should be governed by a statutory scheme in which inchoate and secondary liability support and complement each other. There were two main reasons why we rejected the abolition of secondary liability. First, we said that there were cases where D's culpability was such that D would be insufficiently condemned and labelled if he or she were to be convicted of merely assisting or encouraging the commission of the principal offence rather than convicted of the offence itself. The obvious case, particularly if it is D who is the instigator, is where D assists or encourages P with the intention that P should commit the principal offence.

1.39      Secondly, the considerable forensic advantages associated with secondary liability would be jeopardised by a scheme that comprised only inchoate offences. By virtue of section 8 of the Accessories and Abettors Act 1861, a person who is an accessory can be charged, indicted and punished as a principal offender. This means that the prosecution can obtain a conviction even if it cannot be proved whether the accused was a principal offender or an accessory provided that he or she must have been one or the other.^[42] For example, suppose that D1 and D2 are jointly charged with burglary. It is known that one of them entered the premises while the other kept watch. D1 and D2 can each be convicted of burglary despite the prosecution being unable to prove who entered the premises (the principal offender) and who kept watch (the accessory).^[43]

1.40      This is of considerable assistance to the prosecution in cases where it is difficult or impossible to prove the precise role of the various parties. In addition, the prosecution does not have to specify in advance whether the allegation is that an accused was a principal offender or an accessory.^[44] In Mercer^[45] it was held that there is no violation of Article 6(3) of the European Convention on Human Rights and Fundamental Freedoms where the prosecution alleges that an accused is a party to an offence but cannot specify his or her precise role.^[46] The scheme that we are recommending preserves the forensic advantages of secondary liability.

Reform of inchoate liability for assisting and encouraging crime

1.41      In the first report, we said that the major defect of the current law is that the scope of inchoate liability for assisting or encouraging the commission of an offence is limited. This is because, at common law, D can be inchoately liable only if his or her conduct consists of encouraging P to commit an offence. If D does so with the requisite fault element, D is guilty of the common law inchoate offence of incitement.^[47] By contrast, if D assists (but does not encourage) P to commit a principal offence that P does not subsequently commit, D incurs no liability. Admittedly, Parliament has enacted a considerable number of statutory offences that criminalise particular instances of inchoate assistance.^[48] However, there are no statutory inchoate offences in relation to some of the most serious offences, including murder, robbery, burglary and blackmail. This has had an adverse knock-on effect on the scope of secondary liability. The common law has compensated for the limited scope of inchoate liability at common law by over-extending the scope of secondary liability.^[49]

1.42      Accordingly, in the first report, we recommended the creation of two general statutory inchoate offences. They would replace the common law offence of incitement and fill the gap at common law caused by the lack of any inchoate liability where D assists but does not encourage the commission of an offence that P does not subsequently commit. The scheme of inchoate liability that we have recommended would consist of two core inchoate offences:

(1) doing an act capable of encouraging or assisting P to commit an offence intending that P should be encouraged or assisted to commit the offence ('the clause 1 inchoate offence'):

Example 1Q

D pays P £20000 so that P will murder V who is D's wife. P is arrested in connection with another matter before he can murder V.

(2) doing an act capable of encouraging or assisting P to commit an offence believing that it will encourage or assist P to commit the offence and believing that P will commit the offence ('the clause 2 inchoate offence'):

Example 1R

D, in return for payment, provides P with the address of V. D believes that P will murder V. D, however, having been paid, is indifferent as to whether or not P murders V. P is arrested in connection with another matter before he can murder V.^[50]

Under our recommendations, in example 1Q, D would be guilty of the clause 1 inchoate offence because he intended that P should commit murder. In example 1R, D would be guilty of the clause 2 inchoate offence because he believed that P would commit murder. Both the clause 1 inchoate offence and the clause 2 inchoate offence would enable D to be held inchoately liable for assisting P to commit a principal offence even if P, as in the two examples, did not go on to commit it.

1.43      In addition, the clause 2 inchoate offence has important implications for reform of secondary liability:

Example 1S

The same facts as in example 1R except that P murders V.

Under the current law, D is guilty of murder as a secondary party. However, although we consider that D's conduct is undoubtedly deserving of censure and punishment, we do not believe that D is fairly labelled as a murderer. D's culpability is not comparable to that of P. D did not intend that P should attack, let alone murder, V.

1.44      However, the current law does not reflect our normative claim that, in example 1S, D ought not to be convicted of murder because he did not intend P to engage in the conduct element of the principal offence. At common law, D is guilty of murder. It is easy to understand why. As long as there is no inchoate liability for assisting the commission of an offence, the common law is faced with a stark choice on the facts of example 1S – convict D of murder (as a secondary party) or exonerate D.

1.45      The clause 2 inchoate offence would transform the landscape. It would perform a dual role. It would not only capture D's conduct in example 1R where P does not commit the principal offence. It would also capture D's conduct in example 1S where P does commit the principal offence. In cases where D believes that P will commit the principal offence and P does so, there would no longer be the stark choice between convicting D of murder or exonerating D. In example 1S, it would be possible to convict D of assisting and encouraging murder (inchoate liability) just as it would be in example 1R where P does not commit the principal offence. Accordingly, in cases where D and P are not parties to a joint criminal venture, it would be possible to limit the scope of secondary liability to those cases where D intended that P should engage in the conduct element of the principal offence. In doing so, the principle of 'parity of culpability' would be honoured.

AN OUTLINE OF THE SCHEME THAT WE ARE RECOMMENDING IN THIS REPORT

The overall structure

1.46      In place of the common law rules of secondary liability and innocent agency, we are recommending a statutory scheme. The scheme is contained in two draft Bills that accompany this report – Participating in Crime Bill ('the Bill') and Participating in Crime (Jurisdiction, Procedure and Consequential Provisions) Bill ('the Supplementary Bill'). The scheme consists of three conceptually distinct forms of liability:

Type 1: secondary liability

1.47      The Bill subcategorises this type of liability under two headings. First, D would be liable, provided he or she satisfies the requisite fault element, for an offence that P commits with D's encouragement or assistance (clause 1 of the Bill). Secondly, D would be liable, provided he or she satisfies the requisite fault element, for any offences committed pursuant to a joint criminal venture (clause 2 of the Bill).

CLAUSE 1 OF THE BILL

1.48      Under clause 1 of the Bill, D would be liable for a principal offence committed by P if D assisted or encouraged P to perpetrate the conduct element of the principal offence and intended that the conduct element should be perpetrated. This would have the effect of narrowing the scope of secondary liability in cases where D and P are not parties to a joint criminal venture.

1.49      For the purposes of clause 1, D 'intends' only if he or she acts in order that the conduct element of the principal offence is perpetrated. In our use and understanding of the word 'intention', we adopt the common law meaning. This means that if D foresaw as a virtual certainty P engaging in the conduct element of the offence, that would be evidence from which the jury or magistrates could (but would not have to) find that D intended the perpetration of the conduct element.^[51]

CLAUSE 2 OF THE BILL

1.50      Clause 2 would govern D's liability where D and P have formed a joint criminal venture. This will cover both agreed offences and collateral offences committed by P in the course of the joint criminal venture.

1.51      In relation to clause 2, D would be liable for any offence committed by P provided that its commission fell within the scope of the joint venture. A joint criminal venture is formed when the parties agree to commit an offence or when they share with each other a common intention to commit an offence.^[52] D would be liable for any offence (agreed or collateral) that he or she foresaw might be committed as a possible result of the venture. The mere fact that D was not present when the offence was committed or that he or she would rather that it was not committed would not in itself preclude a jury finding that the offence fell within the scope of the joint venture.^[53]

Type 2: innocent agency

1.52      We are recommending that the common law doctrine of innocent agency should be replaced by a statutory regime.^[54] D would be liable for an offence as a principal offender if he or she intentionally caused P, an innocent agent, to commit the conduct element of an offence but P does not commit the offence because P:

(1) is under the age of 10 years;

(2) has a defence of insanity; or

(3) acts without the fault required to be convicted of the offence;^[55]

1.53      Our recommendations would ensure that D could be convicted of a principal offence as a principal offender even if the offence can only be committed by a person who meets a particular description and D does not fit that description.

Type 3: causing the commission of a no-fault offence

1.54      We are recommending the creation of a new statutory offence of causing another person to commit a no-fault offence. Accordingly, under this form of liability, D would be convicted as a principal offender rather than, as under the current law, a secondary party to the no-fault offence committed by P.^[56]

Summary

1.55      Much more so than at common law, the scheme emphasises the derivative nature of secondary liability. Subject to a very limited number of exceptions, D would incur secondary liability only if P commits a principal offence. The exceptions relate to where P does not commit an offence because he or she has a complete defence, for example duress, or a partial defence to murder, for example provocation.

1.56      Our scheme confines secondary liability to cases where D has assisted or encouraged P and/or has formed a joint criminal venture with P. Under the current law, D can incur secondary liability by 'procuring' P to commit an offence. Under our recommendations, 'procuring' will cease to be a basis of secondary liability. Instead, procuring in the sense of intentionally causing a person to do a criminal act will result in D incurring liability as a principal offender.

Limitations on liability and defences^[57]

The Tyrrell exemption

1.57      Under the current law, if an offence is enacted to protect a category of persons and D falls within that category, D cannot be convicted of committing the offence as a secondary party (or of inciting P to commit the offence). This is known as the Tyrrell^[58] exemption. In Tyrrell, P, an adult, had unlawful sexual intercourse with D, a child aged between 13 and 16.^[59] It was alleged that D had encouraged P to commit the offence. Despite this, the court held that D could not be liable as a secondary party because the primary offence was intended to protect "victims from themselves".^[60] Our scheme preserves and refines the common law Tyrrell exemption.

1.58      We are recommending that D should not be held liable as a secondary party or as a principal offender by virtue of innocent agency if:

(1) the principal offence is one that exists for the protection of a particular category of person;

(2) D falls within that category; and

(3) D is the victim of the principal offence.^[61]

Acting to prevent the commission of an offence or to prevent or limit the occurrence of harm

1.59      We are recommending that if D is charged with committing an offence as a secondary party, it should be a defence if D proves on the balance of probabilities that he or she acted in order to prevent the commission of an offence or the occurrence of harm and that it was reasonable to act as D did:

Example 1T

D and P are at a pub after a football match and meet a rival gang of supporters. P, along with some others, plan to attack the rival gang and stab their most vocal member (V). D, who does not want V to be harmed, manages to persuade P and the others to damage an item of V's property instead. D is charged with encouraging P to commit criminal damage.

D has encouraged P to commit criminal damage. He has done so in order to prevent the commission of a serious offence against the person. It would be for a jury to decide whether in doing so D had acted reasonably in all the circumstances. The jury would be entitled to take into account the seriousness of the harm that D was seeking to prevent and also whether or not there were any lawful steps that were available to D, for example, whether in example 1T D should have alerted the police. However, if the jury conclude that D did act reasonably in encouraging the offence, we believe that the defence should be available.

AN OVERVIEW OF INCHOATE AND SECONDARY LIABILITY FOR ASSISTING AND ENCOURAGING CRIME

1.60      It is important that the recommendations in this report are read in the light of the recommendations that we made in the first report. In this section, we provide a brief outline of the overall scheme.

D's liability where P does not commit the principal offence

1.61      D's liability would always be inchoate. D would commit an inchoate offence of encouraging or assisting P to commit an offence:

(1) if D does an act capable of encouraging or assisting P to commit an offence:

(a) intending to assist or encourage P to perpetrate the conduct element of the offence ('the clause 1 inchoate offence'); or

(b) believing that his or her act will assist or encourage P to perpetrate the conduct element and that P will perpetrate it ('the clause 2 inchoate offence');

AND

(2) if the principal offence requires proof of fault:

(a) D believes that P will perpetrate the conduct element with the fault element required to be convicted of the offence; or

(b) D's own state of mind is such that were he to perpetrate the conduct element, he would do so with the requisite fault.

Specific defences

1.62      Where D's liability is grounded on the clause 2 inchoate offence, it would be a defence if D acted reasonably in the circumstances. The burden of proof would be on D to demonstrate that he or she had acted reasonably. The defence would not be available to the clause 1 inchoate offence.

D's liability where P does commit the principal offence

Clause 1

1.63      Beyond inchoate liability, D would be liable for P's offence as a secondary party provided that D intended P to engage in the conduct element of the offence and:

(1) D believed that P would perpetrate the conduct element with the fault required to be convicted of the offence; or

(2) D's state of mind was such that, had he or she perpetrated the conduct element, it would have been with the fault required for conviction of the offence.

1.64      Accordingly, if D indifferently assisted or encouraged P to commit an offence, D would no longer be a secondary party to P's offence. However, if D believed that P would commit the principal offence, D would commit the clause 2 inchoate offence of assisting or encouraging P to commit the principal offence believing D would commit it.^[62]

1.65      Accordingly, there is scope for the clause 2 inchoate offence to apply even if P does commit or attempt to commit the principal offence. However, for the clause 2 inchoate offence to apply, D must believe that P will commit the principal offence. This means that if D believes that P might commit the principal offence, D will not incur either secondary or inchoate liability in respect of the principal offence.

Clause 2

1.66      D would be liable for any offence committed by P that was within the scope of the joint criminal venture. It would be a question of fact and degree whether the offence committed by P was within the scope of the venture. The fact that D was opposed to the commission of the offence would not in itself prevent the tribunal of fact from finding that the offence was within the scope of the venture.^[63]

General defences

1.67      There would be two defences to both inchoate and secondary liability. The first would be where D acted reasonably in order to prevent the commission of an offence or to limit the occurrence of harm. The burden of proof would be on D to establish the defence. The second would be where the principal offence was one which existed for the protection of a particular category of person and D was both a member of that category and the victim of the offence (or would have been had the principal offence been committed).

THE STRUCTURE OF THIS REPORT

1.68      In Part 2 we provide a summary of the current law.

1.69      In Part 3 we set out and explain our recommendations for a statutory scheme of secondary liability.

1.70      In Part 4 we set out and explain our recommendations for a statutory scheme of innocent agency and for a new offence of causing the commission of a no fault offence.

1.71      In Part 5 we consider defences and exemptions.

1.72      In Part 6 we consider extra-territorial jurisdiction.

1.73      In Part 7 we set out our recommendations.

1.74      Appendix A contains the draft Participating in Crime Bill and the draft Participating in Crime (Jurisdiction, Procedure and Consequential Provisions) Bill. It also includes a commentary to the Participating in Crime Bills.

1.75      Appendix B contains a more expansive and detailed account of the current law than that contained in Part 2.

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Note 1    In this report we must also consider the circumstances in which D ought to be criminally liable for agreeing with P to commit an offence, and the offence is committed in consequence.    [Back]

Note 2    The appropriation must be dishonest and it must be accompanied by an intention to permanently deprive V of his or her property: Theft Act 1968 s 8.     [Back]

Note 3    Inchoate Liability for Assisting and Encouraging Crime (2006) Law Com No 300 (‘the first report’).    [Back]

Note 4    In order to avoid wearisome repetition, any reference in this report to P committing a principal offence includes P attempting to commit the offence.    [Back]

Note 5    See further paras 1.8 and 1.9 below.    [Back]

Note 6    The language of the Accessories and Abettors Act 1861, s 8 and the Magistrates’ Courts Act 1980, s 44.    [Back]

Note 7    R A Duff, Criminal Attempts (1996) p 13 believes that this way of distinguishing the different elements of an offence is problematic because it is relative to the way that we describe actions. Thus, if a rapist’s action is described as “having sexual intercourse” the victim’s non-consent is a circumstance of the rapist’s action. If the rapist’s action is described as “having non-consensual sexual intercourse” the victim’s non-consent is part of the action itself rather than a circumstance. Despite this, we still feel that it is a helpful construct through which to explore secondary liability.     [Back]

Note 8    Some of the authorities hold that D can be convicted as a secondary party even if he or she merely believed that P might use the bat to commit robbery.    [Back]

Note 9    Neither did D agree that P should attack V.    [Back]

Note 10    In the first report, we set out the state of mind required of D if he or she is to be held inchoately liable for encouraging or assisting the commission of a principal offence.    [Back]

Note 11    If the offence is not subsequently committed, D may still be convicted of the offence of conspiracy - Criminal Law Act 1977, s 1.    [Back]

Note 12    We set out our reasons in full in Part 3, paras 3.127 to 3.131.    [Back]

Note 13    Assisting and Encouraging Crime (1993) Law Commission Consultation Paper No 131 (‘the CP’).    [Back]

Note 14    Above, para 1.1.    [Back]

Note 15    A J Ashworth, Principles of Criminal Law (4th ed 2003) 441.    [Back]

Note 16    “Complicity, Purpose and the Draft Code: Part 1” [1990] Criminal Law Review 4.    [Back]

Note 17    See Part 2, para 2.65 and Appendix B, paras B.109 and B.117.    [Back]

Note 18    Contrary to the Theft Act 1968, s 12(1). The offence is punishable by a maximum term of six months imprisonment.    [Back]

Note 19    Contrary to the Theft Act 1968, s 1. The offence, following conviction in a trial on indictment, is punishable by a maximum term of seven years imprisonment.    [Back]

Note 20    For our recommendations in relation to the fault element of complicity, see Part 3 paras 3.68 to 3.169.    [Back]

Note 21    G R Sullivan, “The Law Commission Consultation Paper on Complicity: (2) Fault Elements and Joint Enterprise” [1994] Criminal Law Review 252, 253 (emphasis added). The two cases that Professor Sullivan refers to are Bainbridge [1960] 1 QB 129 and DPP for Northern Ireland v Maxwell [1978] 1WLR 1350 (hereafter “Maxwell”).    [Back]

Note 22    [1959] 1 QB 11.    [Back]

Note 23    Above, 20. Detinue was a civil wrong which consisted of unlawfully detaining another person’s property. Detinue was abolished by the Tort (Interference with Goods) Act 1977, s 2(1). See further Glanville Williams, “Obedience to Law as a Crime” (1990) 53(4) Modern Law Review 445.    [Back]

Note 24    Accessories and Abettors Act 1861, s 8.    [Back]

Note 25    A variation of the facts of Petters and Parfitt [1995] Criminal Law Review 501.    [Back]

Note 26    Thus, in example 1K, D would be guilty of burglary even if he did not provide P with a jemmy.    [Back]

Note 27    This difference is reflected in the contrasting requirements of clause 1 (non-joint venture) and clause 2 (joint criminal venture) of the draft Bill appended to this report.    [Back]

Note 28    If the agreed offence involves the use of violence which is intended to kill V, there is no difficulty. Should P kill V, P and D are each guilty of murder. This would be so even if the method that P employed to kill V was one that D had not foreseen and involved exceptional cruelty which sickens D.    [Back]

Note 29    Paras 2.66 to 2.80 and Appendix B, paras B.124 to B.132.    [Back]

Note 30    Murder, Manslaughter and Infanticide (2006) Law Com No 304, Part 4.    [Back]

Note 31    Simester and Sullivan, Criminal Law Theory and Doctrine (2nd ed 2003) pp 224 to 226.    [Back]

Note 32    See the speech of Lord Mustill in Powell and Daniels, English [1999] 1 AC 1, 11.    [Back]

Note 33    By contrast, Smith and Hogan, Criminal Law (11th ed 2005) pp 190 to 191 says that joint ventures “are governed by the ordinary principles of secondary participation”. On this view, the doctrine of secondary liability governs D’s liability for all offences committed by P in the course of a joint criminal venture.    [Back]

Note 34    Accordingly, Simester and Sullivan, Criminal Law Theory and Doctrine (2nd ed 2003) p 220 (n 159) states that if the only offence that P commits is the agreed offence, it is not a joint criminal venture.    [Back]

Note 35    See Part 3 paras 3.47 to 3.58.    [Back]

Note 36    Paras 1.5 to 1.11 above.    [Back]

Note 37    Paras 3.127 to 3.131.    [Back]

Note 38    For example, D gives a parcel containing a bomb to P and tells P to deliver it to V. D tells P that it is a birthday present for V. As D hoped, the bomb explodes killing V. D is guilty of murder as a principal offender.    [Back]

Note 39    A no-fault offence is one that P can commit without being at fault in relation to the circumstances element of the offence.    [Back]

Note 40    See paras 4.28 to 4.37 below.    [Back]

Note 41    Para 4.24 (emphasis in original).     [Back]

Note 42    Swindall v Osborne (1864) 2 Car. & K. 230; Du Cros v Lambourne [1907] 1 KB 40; Ramnath Mohan [1967] 2 AC 187. D can properly be convicted even if some of the jury find that he or she was the principal offender and some find that he or she was the accessory –Giannetto [1997] 1 Cr App R 1 in which the Court of Appeal referred with approval to the decision of the Supreme Court of Canada in Thatcher v R (1987) 39 DLR (4th) 275.    [Back]

Note 43    In Powell and Daniels [1999] 1 AC 1 it could be proved that the accused was either the person (P) who murdered V or a person (D) who was on a joint criminal venture with P to buy drugs from V believing that P might shoot V with intent to cause serious harm. Accordingly, the accused could be convicted of murder.    [Back]

Note 44    The House of Lords has indicated that it is desirable, wherever possible, for the prosecution to specify whether the accused is alleged to be a principal offender or an accessory – Maxwell [1978] 1 WLR 1350.    [Back]

Note 45    [2001] EWCA Crim 638, (2001) WL 542166.    [Back]

Note 46    Article 6(3) provides, amongst other things, that everybody charged with a criminal offence has the right “to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him”.    [Back]

Note 47    Incitement is a free-standing offence but always relates to the principal offence incited. Accordingly, D is charged with incitement to rob or incitement to steal as opposed to simply ‘incitement’.    [Back]

Note 48    Examples include Prison Act 1952, s 39; Forgery and Counterfeiting Act 1981, s 17(1); Computer Misuse Act 1990, s 2(1)(b) and 2(3); Terrorism Act 2000 s 12(2) and 17; Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 4(2).    [Back]

Note 49    See para 1.8 above.    [Back]

Note 50    D incurs no liability under the current law because he has assisted but not encouraged P.    [Back]

Note 51    See Part 3, paras 3.84 to 3.93.    [Back]

Note 52    See example 1L above as an illustration of D and P sharing with each other a common intention despite the fact that there is no communication between them.    [Back]

Note 53    Clause 2(4) of the Bill.    [Back]

Note 54    Clause 8(b) of the Supplementary Bill abolishes the common law rules in relation to innocent agency.    [Back]

Note 55    Clause 4 of the Bill.    [Back]

Note 56    Clause 5 of the Bill.    [Back]

Note 57    See further Part 5.    [Back]

Note 58    [1894] 1 QB 710.    [Back]

Note 59    Contrary to the Criminal Law Amendment Act 1885, s 5.    [Back]

Note 60    [1894] 1 QB 710, Lord Coleridge at p 712.     [Back]

Note 61    Clause 6 of the Bill.    [Back]

Note 62    This is subject to one qualification. If the jury find that D believed that P would commit the principal offence in the sense of believing that it was ‘virtually certain’ that P would do so, they would be entitled to find that D ‘intended’ to commit the offence. D would then be liable as a secondary party.     [Back]

Note 63    It will be an exceptional case where D is opposed to the commission of the agreed offence. However, it will not be an unusual occurrence for D to be opposed to the commission of a collateral offence.    [Back]