Complicity

Question 1

The old law

Answer 1

D foresees that P would commit the AR with the requisite MR, and P does so in a not fundamentally different manner that what D foresaw
R v Chan Wing-Siu: endorsed this

Question 2

Reform of the old law

Answer 2

R v Jogee: now requires D to know/intend for P to commit the crime
- Buxton: critique that the SC does not justify departing from a long line of authority
- Ormerod and Laird: new practical problems arise, especially with MR
R v Johnson: SC essentially said the law and decisions for 30 years was wrong, but CA refused to treat cold convictions as prima facie unsafe

Question 3

Actus reus

Answer 3

D did an act to assist or encourage P to commit the offence
R v Bryce: all that is required to show assistance was that it was of some help to the principal in committing the crime
R v Giannetto: a man saying “oh goody” to being told someone was going to kill his wife would suffice as encouragement
R v Calhaem: hit man killing D’s wife out of panic rather than as planned; D can still be said to have encouraged, even if the killing did not occur because of the encouragement
R v Jogee: “the prosecution does not have to go so far as to prove that [the encouragement or assistance] had a positive effect on [P’s] conduct or on the outcome”
- there may be cases where D’s conduct “has faded to the point of mere background, or has been spent of all positive force”
R v Rowe: confirms no positive effect needs to be proven on P’s conduct
Dyson suggests that we should be looking as to whether there was a measurable contribution to the crime but CA in R v Hussain rejected this approach

Question 4

Omissions?

Answer 4

R v Jogee: simply being present does not make you an accomplice
Clarkson: D who simply watched a man committing rape was found not to be an accomplice
- Cowley argues that the presence should have been seen as contributing to the humiliation of the rape and encouraging it as part of a performance
R v N: D could be convicted if D intended “by his presence to help or encourage the others to commit the crime by either giving moral support to them or by contributing to the force of numbers involved”

Question 5

Mens rea

Answer 5

D intended to encourage P, and intended that P would have the requisite MR
R v Jogee: “intention to assist or encourage the commission of the crime and this requires knowledge of any existing facts necessary for it to be criminal”

Question 6

Defence: overwhelming supervening act

Answer 6

R v Jogee: where P’s act amounts to “some overwhelming supervening act.. which nobody in the defendant’s shoes could have contemplated might happen and is of such character as to relegate his acts to history” D will not be liable
R v Tay: “mere escalation” of violence by P will not be enough- D’s involved himself in violence, the fact that it’s more than expected should not be enough for acquittal

Question 7

Defence: withdrawal

Answer 7

Must take place before the offence is committed; not enough to have a change of heart
R v Bryce: change of mind was not enough- some physical acts demonstrating disengagement needed
R v Becerra: “serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdrew”
- sudden departure from the scene saying “come on let’s go” was insufficient communication of withdrawal
R v Otway: D does not have to try and prevent the crime from occurring
R v Rook: D never told the others he was not going ahead with the crime; absence on the day could not amount to “unequivocal communication” of his withdrawal

Question 8

Victims

Answer 8

R v Tyrell: girl under 16 could not be convicted of aiding and abetting a man to have sexual intercourse with her; the offence was designed to protect under 16 year-olds, not criminalise them

Question 9

Theory; effect of D’s assistance

Answer 9

Dressler offenders may feel it’s harder to withdraw when, acting alone, they would have desisted
Kadish: it’s normally regarded as a fundamental principle of criminal law that individuals are responsible for their own actions as autonomous agents, but not the actions of others
Gardner: “The relationship we have to our own actions is direct: we answer for them as such. The relationship we have to the actions of others is indirect: we answer for them only inasmuch as, by our own actions, we contribute to them.”

Question 10

Law Commissions arguments for and against an inchoate model of liability for accomplices (i.e. still liable even if the principal does not commit the crime)

Answer 10

Arguments in favour
- “Assisting another person to commit an offence is sufficiently culpable conduct to warrant the imposition of criminal liability even if that person does not commit or attempt to commit the offence”
- “would deter some individuals from assisting prospective perpetrators”
Arguments against
- liability for otherwise lawful conduct
- “would result in premature intervention.. D being liable in assisting P who had no intention of committing an offence”
- D will incur immediate liability for assisting O eve though P, who may have requested assistance, incurs no liability until he or she makes an attempt to commit the principal offence”- disparity between liability of P and D