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APPENDIX A

THE DRAFT PARTICIPATING IN CRIME BILLS: COMMENTARY AND FULL TEXT

PARTICIPATING IN CRIME BILL

Introduction

A.1      In this paper we explain the various provisions in our draft Participation in Crime Bill ('the Bill') and our draft Participation in Crime (Jurisdiction, Procedure and Consequential Provisions) Bill ('the Supplementary Bill'). The full texts of the Bills, also within this Appendix, follow on directly from the end of this commentary.

Secondary liability

A.2      Clauses 1 and 2 of the Bill set out the inculpatory provisions whereby a person ('D') will incur liability for an offence committed by a principal offender ('P').^[1] These provisions must of course be read with the other relevant provisions in the Bill and Supplementary Bill, particularly clauses 6 and 7 of the former which set out our proposed limitations on liability.

A.3      For the purposes of clauses 1 and 2 (and the relevant provisions in Part 2) of the Bill, P commits an offence if he or she is aged 10 or above, is legally sane and commits the external elements of the offence with the fault (if any) required for liability as a principal offender.^[2] Accordingly, when determining D's secondary liability for an offence, it is of no relevance that P has been (or would be) excused from liability because P has a complete defence such as duress or a partial defence (to murder) such as provocation.^[3]

A.4      If P was not legally capable of committing the offence in question, because P was under the age of 10 or legally insane, D's liability falls to be determined by reference to clause 4 of the Bill (on innocent agency) rather than through the provisions on secondary liability.^[4]

A.5      In cases where D's liability is determined under the secondary liability provisions, he or she is, as a general rule, liable for each and every offence committed by P. For example, if P has committed murder he or she will also have committed the lesser offence of unlawful and dangerous act manslaughter, as well as one or more non-fatal offences against the person. If the secondary liability requirements of the Bill are not satisfied for the most serious offence committed by P (eg, murder), then, as a general rule, D will nevertheless be liable for a lesser offence committed by P (eg, manslaughter) if the requirements are satisfied in relation to that offence.

Clause 1 of the Bill – intentional encouraging or assisting

A.6      Clause 1 provides that if P commits an offence, then D is liable for that offence if:

D does an act which encouraged or assisted P to commit a 'criminal act';^[5]

D intended that P or another person should commit that criminal act;^[6]

D believed that a person doing the criminal act would commit the offence^[7] (or D's own state of mind was such that had D committed the criminal act, he or she would have committed that offence).^[8]

A.7      Thus, if the offence committed by P is murder, and it is established that D provided P with the necessary encouragement or assistance, D will be secondarily liable for that offence if it was his or her intention that P or another person should do (or continue to do) any act which, if successfully committed against another person, could result in that person's death and D believed that if the act were to be done (or continued to be done), it would be done by a person acting with the intention to cause serious harm or death.

A.8      By contrast, if in encouraging P it was D's intention that P should fire a live round of ammunition over V's head to frighten her, P's inept aim, resulting in V's being hit and killed, would give rise to secondary liability for manslaughter (rather than murder). It was D's intention that an unlawful (and objectively dangerous) act be done and D acted with the state of mind required for secondary liability for common assault (and therefore manslaughter).^[9]

'CRIMINAL ACT'

A.9      The term 'criminal act' is defined in clause 11(2) of the Bill as being 'in relation to an offence, a reference to an act (or a failure to act) that falls within the definition of the act (or failure to act) that must be proved in order to be convicted of the offence'. Accordingly, as a general rule, 'criminal act' means the conduct element of the principal offence in question.

A.10      Exceptionally, however, if the conduct element taken in isolation is neutral in terms of what D's conduct could encourage or assist, then the term 'criminal act' should be interpreted to mean the conduct element together with the circumstance element of P's offence. For example, if P's offence is drink-driving, and D is charged with committing the principal offence as a secondary party on the ground that he provided P with copious amounts of whisky before P set off in his car, the question whether D's conduct encouraged or assisted P to commit the offence will be assessed with reference to the conduct element of P's offence as a whole (the conduct element of driving together with the circumstance element of being 'over the limit').

A.11      It is important to note that, in the absence of a specific defence on the issue, D's secondary liability does not depend on the way in which P's offence was ultimately committed. D will be liable for 'offence x' if, acting with the fault required by clause 1(2) or (3) of the Bill,^[10] his or her intention was that any act which could feasibly be the conduct element of that offence should be done. In other words, as a general rule, if the principal offender (P) was different from the person D believed would commit the offence, or there were differences between the way P committed 'offence x' and the way D envisaged 'offence x' being committed, or there were differences in the circumstances (such as the place and time of the offence or the identity of the victim), D is nevertheless liable for P's offence:

Example A1

D posts a letter to Q setting out how to gain entry into a locked building, with a view to encouraging Q to commit burglary, expecting that the information will be used by Q to break into a house via its back door. D would be liable for P's burglary of a hospital if P, having read D's letter, effected his entry by breaking in through a locked window.

A.12      With regard to D's own conduct, clause 1(c) of the Bill requires D to have done something which 'assisted or encouraged P to do his criminal act'. In other words, D's behaviour must not merely have the capacity to assist or encourage P, but must actually do so. However, if D's conduct has the capacity to assist or encourage P, proving that it did in fact have that effect should only be an issue if there is evidence before the court to realistically suggest that it might not have done so.

'INTENTION'

A.13      D must act with the 'intention' that a criminal act be committed.^[11] In this context, 'intention' bears its common law meaning. In other words, a jury should be directed that they would be entitled, but not compelled, to find that D intended P to commit a criminal act if they find that D believed that it was 'virtually certain' that P would commit it.

Clause 2 of the Bill – participating in a joint criminal venture

A.14      Clause 2 of the Bill sets out the conditions for secondary liability for an offence committed by P in cases where D and P are parties to a joint criminal venture.^[12]

A.15      In the first report we said that we had been greatly exercised by how best to express our policy on secondary liability in statutory form.^[13] One approach would be to express the policy in a relatively open textured form, focusing on general principles. Under this approach, it would be for the courts, guided by our report feeding into Judicial Studies Board specimen directions to juries, to fill in the details in particular cases. The other approach would be a Bill which itself provided the details. Nowhere is the contrast between the two approaches more pronounced than in the respective clauses dealing with D's liability for participating in a joint criminal venture.

A.16      Parliamentary Council prepared alternative Bills reflecting each approach. We circulated both Bills to members of the Advisory Group who had assisted us in our review of the law of homicide.^[14] Of those that commented, nearly all expressed a clear preference for the more open textured Bill. They found the other Bill too complex and too difficult to work with. Taking their views into account, we have opted for the more open textured Bill.

'JOINT CRIMINAL VENTURE'

A.17      The Bill does not define 'joint criminal venture'. However, the expression is employed to describe cases where D and P share a common intention to commit an offence. The obvious example of a shared common intention is where D and P are both party to an express agreement to commit an offence. In addition, clause 2(3) makes it clear that a joint criminal venture (in the sense of a shared common intention) may also be inferred from the conduct of D and P regardless of whether they are parties to an express agreement to commit an offence.

A.18      Accordingly, clause 2 of the Bill is wide enough to address three categories of joint venture:

the type of venture which is preceded by a conspiracy to commit the offence ultimately committed by P;

the less formal type of venture, where D and P tacitly agree (perhaps on the spur of the moment) that the offence ultimately committed by P should be committed; and

the type of spontaneous venture where it would be difficult to infer a tacit agreement, but it would be possible to infer a shared common intention, such as where a number of youths spontaneously involve themselves in an attack on a person outside a public house.

A.19      There will be the exceptional case where D and P expressly agree to commit an offence and yet it is not D's intention that the offence should be committed. Clause 2(4) is in part designed to ensure that, should P commit the agreed offence, D does not escape liability merely because he or she is opposed to or indifferent as to whether the agreed offence is committed. Rather, if D had agreed with P to commit an offence, D is to be treated as sharing with P an intention that the offence should be committed. Thus, in a case such as Rook^[15] where D and P were parties to an agreement to murder V, D will be liable under clause 2 should P commit the murder even though it was not D's intention that murder should be committed.

'SCOPE OF THE JOINT VENTURE'

A.20      If the prosecution can establish a joint criminal venture, clause 2(2) provides D is guilty of any offence committed by P if the criminal act constituting the offence 'falls within the scope of the joint venture'. The Bill does not seek to define that expression. Accordingly, in this section we consider how the courts should approach the issue.

'Agreed offence'

A.21      If D and P agree to commit an offence which P subsequently commits D can be liable for P's offence under clause 2 of the Bill. This is so even if the way in which it was committed, or the victim or the principal offender, or any combination thereof, was different from D's expectation. In other words, the inculpatory element in the scheme for joint criminal ventures disregards the differences in the factual circumstances:

Example A2

D and P agree on Saturday to cause serious harm to V in central London on Tuesday by beating him about the body with poles, but P instead causes V serious harm in Croydon on Monday by poisoning his food.

Prima facie, D would be liable for P's offence of causing V grievous bodily harm with intent to cause such harm.^[16]

A.22      However, as we explained in Part 3,^[17] we believe that the law would be too harsh if no account could be taken of the extent to which P's criminal act was not the act that D intended that P should commit. In the alternative version of the Bill which we have decided not to proceed with, we provided D with a 'remoteness' defence which would have permitted the jury to acquit D of P's offence if it would be unreasonable to convict D, notwithstanding D's prima facie liability:

Example A3

D and P agree in June 2006 to commit a burglary in London, and D provides P with a jemmy. P subsequently uses the jemmy to commit a large number of burglaries in August 2010 in Newcastle.

If D were to be held liable, it would mean that D would be liable for any agreed 'offence x' (in the example, burglary) committed by P, even if committed many years later or in circumstances which D would never have contemplated or countenanced.

A.23      Rather than employ a statutory 'remoteness' test, we have opted for a test which is one of fact and degree: have the prosecution proved that P's criminal act fell within the scope of the joint criminal venture?

A.24      In example A3 above, if P committed the Newcastle burglaries pursuant to a frolic of his own uninfluenced by the earlier agreement with D, a jury might take the view that P's criminal acts were outside the scope of the joint criminal venture even though P received assistance from D (that is the provision of the jemmy four years earlier).

A.25      If, however, D's conspiracy with P did in fact embolden or otherwise encourage P to commit his Newcastle offences, a jury might conclude that P's criminal acts fell within the scope of the venture, regardless of the difference in factual circumstances. This is illustrated by the following example:

Example A4

D and P, who are motivated by racism, agree to cause a serious injury to an Afro-Caribbean man the following Saturday night. P decides to assault an Indian man (V) on Friday instead.

In this example, if the jury was satisfied P at the time of assaulting V was encouraged by the agreement with D, they might conclude that P's criminal act was within the scope of the venture.

A.26      By contrast:

Example A5

D agrees that P should teach D's employer, E, a lesson by breaking his legs and, to this end, provides P with a baseball bat. P instead decides to use the weapon to break the legs of his long-standing enemy, V.

In this example, although D has provided P with assistance, a jury might conclude that P's criminal act fell outside the scope of the venture. However, although D might not be secondarily liable for the offence committed by P against V, he might well be liable for an inchoate offence of encouraging or assisting crime,^[18] or for conspiracy,^[19] in relation to the offence he anticipated.

A.27      If P's criminal act is different from the criminal act that D intended or contemplated because of some mischance or accident in the furtherance of the venture, D ought not to escape liability:

Example A6

D hires P to murder a particular man, M; but P, finding a person in M's study, and wrongly believing that person to be M, "accidentally" kills V instead.

The jury should be directed that the fact that P 'accidentally' killed V instead of M cannot in itself relieve D of liability.^[20]

'Collateral offences'

A.28      It might be thought that whether a collateral offence committed by P will 'fall within the scope of the venture' will be a more difficult issue for the jury to decide. In Part 3,^[21] we set out our reasons for endorsing Chan Wing-siu^[22] principle. Accordingly, a collateral offence committed by P in the course the joint criminal venture will only 'fall within the scope of the venture' if D foresaw that P might commit the offence. If D did foresee that P might commit the collateral offence and P does so, prima facie, the offence will 'fall within the scope of the venture'.

A.29      Frequently, the collateral offence that P commits is one that P commits in order to facilitate the commission of the agreed offence or in order to reduce the possibility of criminal proceedings being brought in respect of the agreed offence. If so, the collateral offence is clearly related to the fulfilment of the shared common intention. Such collateral offences ought not, as general rule, present difficulty. If they are clearly related to the fulfilment of the shared common intention they can properly be seen to fall within the scope of the joint criminal venture. Clause 2(4) makes it clear that this is so even if D was opposed to or indifferent to the commission of the collateral offence. It suffices that D foresaw that the offence might be committed.

A.30      However, some collateral offences committed by P in the course of the joint criminal venture are not committed in order to facilitate the commission of the agreed offence or to reduce the possibility of criminal proceedings being brought in respect of the agreed offence. An example is the racially motivated attack by P on V during the course of the robbery in Stuart and Schofield.^[23] The attack was not committed in order to facilitate the commission of the robbery or to reduce the chances of P and D being apprehended and convicted of the robbery.

A.31      Such collateral offences, the commission of which are foreseen as a possibility by D, are equally capable of falling within the scope of the joint criminal venture. However, as with agreed offences, the law would be too harsh if no account could be taken of the extent to which the act that P perpetrated in committing the collateral offence differed from the act that D foresaw that P might commit:

Example A7

D and P agree to commit a burglary. D, knowing that P is armed with a gun, realises that P may use the gun to murder the householder (H) should the latter disturb them. In the event, H does not disturb them. However, in the course of the burglary P sees a rival gang leader, V, walking past. P takes the opportunity to shoot V dead.

In this example it would be a matter for the jury, as a question of fact and degree, to decide whether the act of P, in murdering V, fell within the scope of the venture.

Clause 3 of the Bill – liability not restricted by special characteristics required of offender

A.32      Some offences are defined in such a way that only persons who meet a particular description can commit them as a principal offender. For example, by virtue of section 1(1)(a) of the Sexual Offences Act 2003, a woman cannot commit rape as a principal offender.

A.33      The purpose of clause 3 is to ensure that D may be convicted of an offence even though he or she could not be convicted of the offence as a principal offender. Thus, if D (a woman) encourages P (a man) to rape V, D can be convicted of rape by virtue of clause 3 or, if P is an innocent agent, by virtue of clause 4.

Innocent agency

Clause 4 of the Bill

A.34      Clause 4 of the Bill provides that, where D has used P to commit the external elements of an offence,^[24] but P is not liable (on the basis that or he or she acted without the fault required for liability^[25] or that he or she lacked the capacity to be liable because he or she was under the age of 10 or was legally insane),^[26] D is to be treated as having committed the offence and liable for it.^[27]

A.35      D is liable as the principal offender for an offence of subjective fault (the commission of which he or she has caused)^[28] if he or she intended that the conduct element of the offence should be committed^[29] and he or she acted with the subjective fault required to be liable for it as a principal offender.^[30] For example:

Example A8

D compels P, a nine-year-old boy, to enter V's house to remove her jewellery. Because D was dishonest and had the intention permanently to deprive V of her jewellery, and it was D's intention that P should enter V's house, knowing that P would be entering as a trespasser, D would be liable for burglary.

Example A9

D tells P, a vulnerable teenager, that the gun he has provided contains only blank rounds, knowing that the ammunition is live, and directs P to shoot at V to frighten him, intending that V should be caused serious harm. If V is shot and killed by P, D would be liable for murder whereas P, intending only to frighten V, would be liable for unlawful and dangerous act manslaughter.^[31]

Example A10

D, a woman, compels P, an insane man, to have sexual intercourse with V, a woman she knows will not consent. Because it is D's intention that P should have sexual intercourse with V, and D does not reasonably believe that V will be consenting, she will be guilty of rape if P has non-consensual intercourse with V.^[32]

A.36      It should be noted that if D causes P to commit the conduct element of the offence, and D has the culpable state of mind to be liable, the fact that the conduct element was committed by P rather than the innocent person that D expected would commit it does not affect D's liability for the offence.^[33] Further, the fact that the conduct element was not committed in the way that D envisaged does not affect his or her liability for the offence.

A.37      D is liable as the principal offender of an offence not requiring fault if he or she intended that the conduct element of the offence should be committed^[34] and he or she knew or believed that it, if committed, would be committed with the circumstance and consequence elements (if any) necessary for liability as a principal offender.^[35] It has been held, however, that insanity cannot be relied on to avoid liability for such offences.^[36] If this approach is followed by the courts, an insane person (P) will be liable for the no-fault offence and D will not be liable under clause 4.^[37] It follows that D will be liable for the no-fault offence under clause 4 of the Bill only in very rare cases, where P is a child under the age of 10.

Causing a no-fault offence

Clause 5 of the Bill

A.38      Clause 5 of the Bill addresses the situation where P commits a no-fault offence^[38] for which he or she bears no moral responsibility because it was brought about by the actions of another individual (D), as in the following example:

Example A11

D, knowing that P will soon drive home from D's party, surreptitiously laces P's orange juice with alcohol causing him to commit the no-fault offence of driving while 'over the limit'.^[39]

A.39      For D to be liable under clause 5(1) for causing P's no-fault offence, the Crown would need to prove, in addition to causation, that it was D's intention to cause a person to commit the no-fault offence^[40] or that D knew or believed that his or her behaviour would cause a person to commit it.^[41]

A.40      Clause 5(1)(a) requires D to cause 'another person' to commit a no-fault offence. Accordingly, D will be liable for causing P's no-fault offence if P was a person other than the person D envisaged would commit it, or if the way in which the offence was committed was different from D's expectation. So, if D laced M's non-alcoholic drink intending to cause M to commit the offence of 'drink-driving' in his Ford Fiesta, but M, believing the drink to be non-alcoholic, gave it to P, a bus driver, D would nevertheless be liable for P's offence of driving 'over the limit' in his bus.

Other defences and general provisions

Clause 6 of the Bill – protective offences

A.41      The effect of this provision is to retain the exemption from secondary liability established in the case of Tyrrell.^[42]

A.42      Clause 6(1) provides that D cannot be liable for an offence by virtue of the Bill's provisions on secondary liability and the provisions on innocent agency if D would be regarded as the 'victim' of P's offence and he or she falls within a category of persons that the offence in question was designed to protect:

Example A12

D1 (a 12-year-old girl) and D2 (D1's 15-year-old female friend) encourage P to have sexual intercourse with D1. P subsequently has sexual intercourse with D1 thereby committing the offence of rape of a child under the age of 13.^[43]

A.43      D2, but not D1, would be secondarily liable for P's offence on the basis that D1 would be regarded as the 'victim' of P's offence.^[44] Parliament intended section 5 of the Sexual Offences Act 2003 to protect children under the age of 13 from themselves, as well as from predatory adults. D1 would not be secondarily liable for P's offence even though it was her intention to encourage P to have sexual intercourse with her. By contrast, D2 would be secondarily liable for P's offence on the basis that she was not a 'victim' of the offence and it was her intention that P should have sexual intercourse with D1.^[45]

A.44      Clause 6(2) ensures that the exemption from liability is available in the rare incidence where D is charged with causing P to commit a no-fault offence.

Clause 7 of the Bill – a defence of acting to prevent crime

A.45      This clause sets out a 'good purpose' defence to secondary liability,^[46] the burden of proof in relation to which lies with the accused.

A.46      If the Crown establish a prima facie case that D is secondarily liable for an offence committed by P, D will nevertheless be entitled to an acquittal if he or she can prove on the balance of probabilities that the purpose was to prevent crime or prevent or limit the occurrence of harm and that the conduct was reasonable in the circumstances:

Example A13

D and P agreed to commit burglary, and burglary was subsequently committed by P. D's defence is that his only purpose in becoming involved was to obtain sufficient information about the offence to be able to inform the police in advance to ensure that P would be caught in the act.

If, in this example, the jury accept that D's explanation is more likely than any other explanation to be true^[47] and (in that case) that it was reasonable for D to act in that way,^[48] D will not be guilty of burglary.^[49]

A.47      The defence is not, however, limited to 'joint criminal venture' secondary liability. If it was D's intention to encourage or assist a person to commit the relevant criminal act, it may well be difficult for him or her to discharge the burden of proving that the requirements of the defence are made out, but D is not precluded from relying on the defence in response to an allegation of secondary liability. The defence might, for example, be made out in the following example:

Example A14

Having found out that P, a person motivated by his hostility towards a racial group, is considering whether to steal a wallet from or, alternatively, to cause a serious injury to a person belonging to that group, D encourages P to commit the theft. P follows D's advice and steals from a person belonging to that group. D gives evidence in his defence that he encouraged P to steal in order to prevent the more serious crime being committed.

If the jury accept that D acted solely to prevent a serious attack by P on another person, and regard the act of encouragement as a reasonable course of conduct in the circumstances, D will not be guilty of P's offence.

Clause 8 of the Bill – encouraging or assisting

A.48      The Bill does not contain a definition of encouraging or assisting. We expect the words to be interpreted widely in accordance with their ordinary meaning.

A.49      However, for the avoidance of doubt, clause 8 of the Bill provides that conduct by D which encourages or assists a person to do an act includes:

conduct which puts pressure on someone (for example where D threatens P);^[50] and

conduct which reduces the possibility of criminal proceedings being brought in respect of the act (such as the provision of advice to P on how to avoid detection or the provision of a gun for P to use against a police officer should he be found committing the offence).^[51]

A.50      In addition, clause 8(2)(b) provides that a reference to a person's doing something which encourages or assists a person to do an act may be an omission comprising a failure to take reasonable steps to discharge a relevant duty, for example where D (a security guard) fails to turn on a burglar alarm in order to assist another person's unauthorised entry as a burglar.

A.51      Clause 8(3) sets out a limitation on the scope of liability for omissions, expressly providing that one particular type of omission – the failure to respond to a constable's request for assistance – is not encompassed by clause 8(2)(b).^[52]

Clause 9 of the Bill – indirect encouragement or assistance

A.52      Clause 9 of the Bill provides that a particular type of indirect encouraging or assisting by D can render him or her liable under the Bill. This provision ensures that a person such as a gang leader (D1) can be held secondarily liable for the criminal conduct of another person (D2) in carrying out D1's instructions, even though D1 himself has no further involvement in giving effect to those instructions:

Example A15

D1 instructs his minion (D2) to hire P to murder V. If D2 encourages P to commit the offence, and P murders V, then D1 as well as D2 can be secondarily liable for the murder.

Clause 10 of the Bill – committing an offence

A.53      Under clause 1(1) and clause 2(1), D's liability is contingent on P having 'committed an offence'. The purpose of clause 10 is to explain, for the purposes of clauses 1 and 2, what is meant by committing an offence. This, in turn, is to ensure that there is a clear line between D's liability under clauses 1 and 2 on the one hand, and clause 4 (innocent agency) on the other hand.

A.54      Clause 10(1) provides that P commits an offence if he or she acts with the fault required for conviction of the offence, is or over the age of 10 and does not have a defence of insanity. Clause 10(2) makes it clear that if P satisfies clause 10(1), it is immaterial that P may have a complete or partial defence. Thus, if D encourages P to intentionally kill V and P does so, for the purposes of determining D's liability, P has committed murder even if P is convicted of manslaughter by virtue of successfully pleading provocation or diminished responsibility. Although both provocation and diminished responsibility reduce murder to manslaughter, neither negates the fault element of murder. If P is convicted of manslaughter by virtue of provocation or diminished responsibility, he or she has nevertheless acted 'with the fault required for conviction of [murder]'.^[53] Likewise, if P successfully pleads duress to, for example, a charge of theft. In this instance, P is acquitted. However, like provocation and diminished responsibility, duress does not negate the fault element of the offence.

A.55      The converse of clause 10 is clause 4. As noted above, this provides that if P does not act with the fault required to be convicted of the principal offence or is under the age of 10 or has a defence of insanity, P is deemed to be an innocent agent of D.^[54] Accordingly, in such cases D will be liable under clause 4, provided he or she intentionally counsels P to commit the conduct element of the principal offence and did so with the requisite state of mind.^[55]

Clause 11 of the Bill – acts, criminal acts and no-fault offences

A.56      Clause 11(1) of the Bill provides that a reference to an act includes a reference to a course of conduct. This applies to D's own conduct^[56] as well as any criminal act which D intends or believes will be committed by another person (for example, a course of conduct amounting to harassment).^[57]

A.57      Clause 11(2) defines the term 'criminal act', as explained above.^[58]

A.58      Clause 11(3)(a) provides that a reference to the doing of a criminal act includes a reference to the continuation of an act which has already begun:

Example A16

D enters a bedroom to find P engaged in sexual intercourse with V. D knows that V is not consenting, and that P is aware of this, but nevertheless positions himself in front of P to watch, intending to encourage P by his being there. P continues to rape V, encouraged by D's presence.

A.59      Clause 11(3)(b) provides that a reference to the doing of a criminal act includes a reference to an attempt to do such an act. For example:

Example A17

D and P agree to murder V, the plan being that D will provide the gun (for a sum of money) and P will use it to perpetrate the offence. D believes that P will indeed attempt to murder V, but that he has no chance of succeeding. P murders V. Both D and P are liable for murder.^[59]

Clauses 12 to 14 of the Bill

A.60      These provisions are self-explanatory.

PARTICIPATING IN CRIME (JURISDICTION, PROCEDURE AND CONCEQUENCIAL PROVISIONS) BILL

A.61      This Bill^[60] complements the Bill by setting out the rules on jurisdiction, procedure and sentencing.

Clause 1 of the Supplementary Bill

A.62      This provision is self-explanatory.

Clause 2 of the Supplementary Bill – jurisdiction (secondary liability)

A.63      This clause and Schedule 1 to the Supplementary Bill set out the rules on jurisdiction if the allegation is that D is secondarily liable for an offence committed by P.^[61]

A.64      Clause 2(1) of the Supplementary Bill sets out the basic rule that D can be convicted of P's offence, by virtue of clauses 1 and 2 of the Bill, if P's offence is committed anywhere in England or Wales, regardless of where D was at any relevant time. This provision therefore encompasses the standard 'domestic' situation, where both D and P acted within the jurisdiction of England and Wales, but it also extends to the situation where D provided his or her encouragement or assistance from elsewhere:

Example A18

D in Berlin sends an e-mail to P in London encouraging P to commit burglary. D may be tried in England or Wales for the burglary committed by P in London.

A.65      Clause 2(2) of the Supplementary Bill provides that in any other situation, where P's offence is committed outside England and Wales and D is alleged to be secondarily liable for it, D may be convicted of the offence only if the facts fall within paragraph 1 or 2 of Schedule 1 to the Supplementary Bill. Where Schedule 1 is relied on, however, the consent of the Attorney General is required.^[62]

Paragraph 1 of Schedule 1

A.66      This paragraph provides the courts in England and Wales with jurisdiction in the situation where D's relevant conduct occurred (at least partly) within England or Wales and P's offence was committed elsewhere, so long as P's offence is one for which a principal offender (satisfying a relevant citizenship, nationality or residence requirement, if any) could be tried under the law of England and Wales regardless of the fact that the offence was committed elsewhere:

Example A19

D in London sends a parcel of poison to a French citizen (P) in Paris encouraging him to use it to murder V in Brussels. D can be convicted in England or Wales of the murder committed by P in Brussels, on the ground it would have been possible to convict P in England or Wales if he had satisfied the requirement of being a "subject of her Majesty".^[63]

Example A20

D in London sends a letter to an Indonesian citizen (P) in Jakarta encouraging him to commit an act of piracy on the high seas. P commits an act of piracy on the high seas, and could, in theory, be convicted in England or Wales of that offence.^[64] Accordingly, D may be convicted of P's offence in England or Wales.

Paragraph 2 of Schedule 1

A.67      This paragraph provides the courts with jurisdiction in the situation where P committed an offence outside England and Wales and D too was outside England and Wales at the time of all of his or her own relevant conduct, so long as D could have been tried under the law of England and Wales for the offence if he or she had been a principal offender:

Example A21

D (a British citizen) holds V down in a Prague night-club while P1 and P2 (neither of whom are British citizens) kick him to death. D can be convicted in England or Wales of the murder because, as a British citizen, it would have been possible to convict him in England or Wales if he had been one of the principal offenders.^[65]

Example A22

D (a British citizen) in the Philippines encourages P (who is not a British citizen) to rape a 10-year-old girl in Manila. D can be convicted in England or Wales of the child-rape because, as a British citizen, it would have been possible to convict D of the offence in England or Wales if he, rather than P, had been the principal offender.^[66]

Clause 3 of the Supplementary Bill – jurisdiction (innocent agency)

A.68      Clause 3 and Schedule 1 to the Supplementary Bill set out the rules on jurisdiction if the allegation is that D is liable for an offence under clause 4 of the Bill, that is, that committed it through the medium of an innocent agent.

A.69      Clause 3(1) provides in effect that if the external elements of the offence in question are committed by P in England or Wales, D may be convicted of it irrespective of his or her own location at any relevant time. This provision therefore encompasses the standard 'domestic' situation where it can be shown that P committed the conduct element in England or Wales and D's own relevant conduct also occurred in England or Wales. The provision also extends, however, to the situation where it can be shown that D caused P's conduct (in England or Wales) from some other place:

Example A23

D, in Paris, telephones P, his seven-year-old son in London, directing him to break into a neighbouring house to remove V's jewellery and thereafter to post it to him. D could be convicted of the burglary he committed in London through his innocent agent (P).

A.70      Clause 3(2) provides that, if the conduct element of the offence is committed by P outside England and Wales, D may be convicted of that offence under clause 4 of the Bill only if the facts fall within paragraph 3 or 4 of Schedule 1 to the Supplementary Bill. Where Schedule 1 is relied on, however, the consent of the Attorney General is required.^[67]

Paragraph 3 of Schedule 1

A.71      Paragraph 3 provides the courts with jurisdiction in the situation where D's own conduct occurred, at least partly, within England or Wales, even though the conduct of the innocent agent (P), in committing the conduct element of the offence, occurred elsewhere:

Example A24

D in London sends an e-mail to his assistant (P) in Italy instructing him to dispose of certain property in Rome which he says belongs to him (D), but which in fact belongs to his ex-wife (V). If P disposes of V's property, innocently believing that he is acting in accordance with D's instructions to dispose of D's own property, D could be convicted in England or Wales of the offence or offences (for example, theft or criminal damage) he committed through P in Italy.

Paragraph 4 of Schedule 1

A.72      This paragraph provides the courts with jurisdiction in the situation where none of the relevant conduct occurred in England or Wales, but the offence D caused P to commit (in another jurisdiction) is one for which D could be tried under the law of England and Wales if he or she had directly perpetrated it in that other jurisdiction:

Example A25

D (a British Citizen) hands P a gun in Paris. D knows that the gun is loaded with live ammunition but tells P that it is loaded with blanks and that he should fire it at V to cause her distress, D's intention being that V should be killed. P fires the gun and kills V (in Paris).

D can be convicted in England or Wales of murder on the basis that a British citizen who perpetrates murder outside England and Wales may nevertheless be convicted of that offence in England or Wales.^[68]

Clause 4 of the Supplementary Bill – jurisdiction (causing a no-fault crime)

A.73      Clause 4 sets out the rule on jurisdiction if the allegation is that D caused P to commit a no-fault offence contrary to clause 5 of the Bill. It provides that D may be convicted of the offence only if it was committed by P in England or Wales and D's own relevant conduct took place wholly or partly in England or Wales.

Clause 5 of the Supplementary Bill – mode of participation

A.74      This clause preserves one of the most important practical aspects of the doctrine of secondary liability. The accused may be convicted of an offence if it cannot be proved whether he was guilty as a principal offender or guilty as an accessory (by the application of clauses 1 and 2 of the Bill) if it can be proved that he must have been one or the other.

Clause 6 of the Supplementary Bill – procedure (causing a no-fault crime)

A.75      Clause 6(1) provides that if D is charged with causing P to commit a no-fault offence, the mode of trial of D is to be determined as if D had been charged with committing the no-fault offence.

A.76      Clause 6(2) provides that if D is convicted of causing P to commit a no-fault offence, D is liable to any penalty for which he or she would have been liable if convicted of the no-fault offence.

Clause 7 of the Supplementary Bill – Attorney General's consent

A.77      Clause 7 provides that where P's offence is committed outside England and Wales or, in cases where P is an innocent agent, would have been committed outside England and Wales, proceedings under clauses 1, 2 or 4 can only be instituted by, or with the consent of, the Attorney General.

Clause 8 of the Supplementary Bill – abolition of common law rules

A.78      Clause 8(a) abolishes the common law doctrine of secondary liability while clause 8(b) abolishes the common law doctrine of innocent agency.

Clause 9 of the Supplementary Bill – amendments and repeals

A.79      Clause 9 of the Supplementary Bill and Schedule 3 thereto repeal a number of statutory provisions, including section 8 of the Accessories and Abettors Act 1861 and section 44(1) of the Magistrates' Courts Act 1980.^[69] However, special provisions on secondary liability – such as section 7(1) of the Perjury Act 1911^[70] and section 21(4) of the Gas Act 1965^[71] – are excluded from the Schedule.^[72]

A.80      Clause 9^[73] also provides that the provisions listed in Part 1 of Schedule 2 to the Supplementary Bill must be interpreted with reference to Part 1 of the Bill (that is, the provisions on secondary liability, innocent agency and causing a no-fault offence).

A.81      Part 1 of Schedule 2 lists the existing statutory provisions which make reference to the types of conduct punishable under the old common law doctrine of secondary liability by virtue of section 8 of the Accessories and Abettors Act 1861 or section 44(1) of the Magistrates' Courts Act 1980.^[74]

A.82      Not all the provisions which make reference to the language of common law secondary liability are included in Part 1 of the Schedule, however, on the ground that some such provisions fall outside our remit to reform the law of England and Wales. Thus, provisions which relate solely to the law outside England and Wales, such as section 277A of the Merchant Shipping Act 1995, and provisions relating to the law governing members of the armed forces, such as section 41(1) of the Naval Discipline Act 1957, are omitted.^[75]

A.83      Clause 9(4) explains that Part 2 of Schedule 2 contains other minor and consequential amendments. For example, the reference in section 21(4) of the Gas Act 1965^[76] to section 8 of the Accessories and Abettors Act 1861 and section 44(1) of the Magistrates' Courts Act 1980 is amended so that it becomes a reference to Part 1 of the Bill.

Clauses 11 to 13 of the Supplementary Bill – final provisions

A.84      These provisions are self-explanatory.

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Ü   Þ

Note 1    The common law doctrine of secondary liability is abolished by cl 8(a) of the Supplementary Bill. Section 8 of the Accessories and Abettors Act 1861 and s 44(1) of the Magistrates’ Courts Act 1980 are repealed by cl 9(1) and (2) of the Supplementary Bill and Sch 3 thereto.    [Back]

Note 2    Cl 10 of the Bill. See paras A.53 to A.55 below.    [Back]

Note 3    Cl 10(2) of the Bill expressly provides that it is immaterial whether P has a defence (other than insanity).    [Back]

Note 4    See paras A.34 to A.37 below.     [Back]

Note 5    Cl 1(1)(c) of the Bill.    [Back]

Note 6    Cl 1(1)(a) of the Bill.    [Back]

Note 7    Cl 1(2) of the Bill.     [Back]

Note 8    Cl 1(3) of the Bill. This limb of the test covers offences of subjective fault and offences of objective fault where P’s state of mind may nevertheless be relevant to his liability (see, for example, s 2A(3) of the Road Traffic Act 1988).    [Back]

Note 9    As with P’s own liability for unlawful and dangerous act manslaughter, it is irrelevant to D’s liability that he or she foresaw no possibility of anyone being killed.    [Back]

Note 10    Cl 6 if the offence is a no-fault offence.    [Back]

Note 11    Clause 1(1)(a) of the Bill.    [Back]

Note 12    In practice, where what is at issue is D’s liability for an agreed (as opposed to a collateral) offence, there will often be an overlap between cl 1 and cl 2 of the Bill, in which case D may be convicted of P’s offence under either provision.    [Back]

Note 13    Inchoate Liability for Assisting and Encouraging Crime (2006) Law Com No 300, Part 1, para 1.23.    [Back]

Note 14    Murder, Manslaughter and Infanticide (2006) Law Com No 304.    [Back]

Note 15    [1993] 2 All ER 955.    [Back]

Note 16    Offences Against the Person Act 1861, s 18.    [Back]

Note 17    Para 3.156.    [Back]

Note 18    Our proposals are set out in Part 1 of our Crime (Encouraging and Assisting) Bill.    [Back]

Note 19    Criminal Law Act 1977, s 1.    [Back]

Note 20    The general principle of transferred fault would apply.    [Back]

Note 21    Paras 3.132 to 3.146.    [Back]

Note 22    [1985] 1 AC 168.    [Back]

Note 23    [1995] 1 Cr App R 441.    [Back]

Note 24    Cl 4(1) and cl 4(3) of the Bill.    [Back]

Note 25    Cl 4(2)(b)(iii) of the Bill. This alternative is not relevant if the offence does not require fault.    [Back]

Note 26    Cl 4(2)(b)(i) and (ii) of the Bill.    [Back]

Note 27    The common law doctrine of innocent agency is abolished by cl 8(b) of the Supplementary Bill.    [Back]

Note 28    Cl 4(3)(b) of the Bill. The Bill does not purport to define ‘cause’.    [Back]

Note 29    Cl 4(3)(a) of the Bill.    [Back]

Note 30    Cl 4(3)(c) and cl 4(4) of the Bill. An offence of subjective fault includes an offence of objective fault for which P’s state of mind may be relevant when determining his liability; see, for example, s 2A(3) of the Road Traffic Act 1988. In other respects, offences of objective fault do not fall within the scope of cl 4 of the Bill.    [Back]

Note 31    In this example P is a “semi-innocent” agent, through the medium of whom D can be said to have been a cause of V’s death.    [Back]

Note 32    By virtue of cl 3 of the Bill, D will be liable for rape even though she would not have been able to perpetrate the offence directly. See paras A.32 and A.33 above.    [Back]

Note 33    Cl 4(3)(a) of the Bill.     [Back]

Note 34    Cl 4(3)(a) of the Bill. As explained above under secondary liability, the criminal act may exceptionally be the combination of conduct and circumstance elements.    [Back]

Note 35    Cl 4(3)(c) and 4(5) of the Bill.    [Back]

Note 36    DPP v H [1997] 1 WLR 1406, a case which also suggests that insanity cannot be a defence to offences of objective fault.    [Back]

Note 37    D may, however, be secondarily liable for P’s offence (under cl 1 of the Bill) or liable for causing P’s offence (under cl 5 of the Bill).    [Back]

Note 38    Defined in cl 5(2) of the Bill as an offence ‘that does not require proof of fault’.    [Back]

Note 39    Road Traffic Act 1988, s 5(1)(a).    [Back]

Note 40    Cl 5(1)(a) of the Bill.    [Back]

Note 41    Cl 5(1)(b) of the Bill.    [Back]

Note 42    [1894] 1 QB 710.    [Back]

Note 43    Sexual Offences Act 2003, s 5.    [Back]

Note 44    The “person in respect of whom [the offence] was committed” (cl 6(1)(b) of the Bill).    [Back]

Note 45    In R v G [2006] EWCA Crim 821, [2006] 1 WLR 2052 the Court of Appeal held that s 5 of the 2003 Act is “an offence that does not require proof of fault”, notwithstanding the reference in s 5(1)(a) to intentional penetration by P. Accordingly, the word ‘intentionally’ refers to the concept of volition (part of the conduct element of the offence) rather than an element of fault. Of course, for D2 to be secondarily liable for P’s offence under cl 1 of the Bill, the Crown would need to prove that she believed that the principal offender would have sexual intercourse with a child under the age of 13 (cl 1(2) of the Bill). P, however, would be liable for the s 5 offence regardless of any belief he had about D1’s age.    [Back]

Note 46    The defence is not available in cases where D uses an innocent agent to commit an offence.    [Back]

Note 47    Cl 7(1)(a) of the Bill.    [Back]

Note 48    Cl 7(1)(b) of the Bill.    [Back]

Note 49    The legal burden is on D to prove the benevolent purpose and that his or her conduct was reasonable in the circumstances.    [Back]

Note 50    Cl 8(1) of the Bill.    [Back]

Note 51    Cl 8(2)(a) of the Bill.    [Back]

Note 52    D’s failure to provide a police officer with assistance when called upon to prevent a breach of the peace is itself a common law offence, but cl 8(3) of the Bill ensures that D will not be secondarily liable for any offence committed by P as a result of assistance provided by his passive failure to help the police when called upon to help.    [Back]

Note 53    Cl 10(1)(a) of the Bill.    [Back]

Note 54    Cl 4(2)(b) of the Bill.    [Back]

Note 55    Cl 4(3) of the Bill.    [Back]

Note 56    D can be liable under the Bill if he does a number of acts, none of which would be regarded as having the capacity to encourage or assist the doing of a criminal act, if the cumulative effect of D’s course of conduct encouraged or assisted P.    [Back]

Note 57    Protection from Harassment Act 1997, s 1.    [Back]

Note 58    See paras A.9 to A.12 above.    [Back]

Note 59    If the offence in respect of which D is charged is itself the offence of attempt, contrary to s 1 of the Criminal Attempts Act 1981, then cl 11(3)(b) of the Bill is inapplicable. This explains the words in parentheses. Thus, if P fails to murder V, but commits the offence of attempted murder, D can be secondarily liable for that offence without reference to cl 11(3)(b).    [Back]

Note 60    Hereinafter, the “Supplementary Bill”.    [Back]

Note 61    Because of the multifarious ways in which encouragement or assistance may be provided, and the fact that assistance or encouragement may be sent from any part of the world to any other part of the world, the question of jurisdiction is of particular importance in the context of the Bill.    [Back]

Note 62    Cl 7 of the Supplementary Bill.    [Back]

Note 63    Offences Against the Person Act 1861, s 9.    [Back]

Note 64    Piracy on the high seas is a crime against the law of nations, for which P may be tried in any sovereign state.    [Back]

Note 65    Offences Against the Person Act 1861, s 9.    [Back]

Note 66    Sexual Offences Act 2003, s 72 and Sch 2.    [Back]

Note 67    Cl 7 of the Supplementary Bill.    [Back]

Note 68    Offences Against the Person Act 1861, s 9.    [Back]

Note 69    In fact the whole of the 1861 Act is repealed because s 8 is the only substantive provision in force. The only other subsisting provision (ie, s 10) simply provides that the Act (ie, s 8) does not extend to Scotland. Schedule 12 to the Criminal Law Act 1977, which amends s 8 of the 1861 Act, is included in Sch 3 on the ground that it will be rendered otiose by the repeal of s 8. Section 55(2) of the International Criminal Court Act 2001, which makes reference to s 8 of the 1861 Act to explain s 55(1)(a), can also be repealed because s 55(1)(a) is now explained by Part 1 of Sch 2 to the Supplementary Bill (para 37).    [Back]

Note 70    “Every person who aids, abets, counsels, procures or suborns another person to commit an offence against [the Perjury Act 1911] shall be liable … as if he were a principal offender.”    [Back]

Note 71    “[A]ny person who aids, abets, counsels or procures the commission of an offence under [Part 2 of the Gas Act 1965] shall be guilty of that offence …”    [Back]

Note 72    Our view is that the Government departments responsible for these various provisions should be allowed sufficient time to determine, following consultation with other relevant bodies, whether they should be retained (to operate in tandem with the provisions of the Bill) or repealed.    [Back]

Note 73    Cl 9(3) of the Supplementary Bill.    [Back]

Note 74    That is, conduct falling within the meaning of “aid, abet, counsel or procure”, whether or not those particular words are used.    [Back]

Note 75    It will be for the Ministry of Defence to determine whether or not provisions relating to the armed forces should be brought into Part 1 of Sch 2. The power to include additional provisions (and also to remove existing provisions) within Part 1 of Sch 2 is provided by cl 9(5)(a) of the Supplementary Bill.    [Back]

Note 76    Para 47 of Sch 2.    [Back]