Crim: w.10 - AUXILIARY LIABILITY

Question 1

What are the 3 inchoate offences?

Answer 1

1. Incitement
2. Conspiracy
3. Attempts

… to commit an offence

Question 2

Do inchoate offences require commission of the relevant offence?

Answer 2

No

But it is possible to charge someone even when the complete offence is carried out.

Question 3

What does inchoate mean?

Answer 3

Incomplete

Question 4

What is incitement?

Answer 4

Inciting another to commit a criminal offence, intending that the principal offence be committed.

Question 5

What else does incitement encompass?

Answer 5

requesting or encouraging another person to commit an offence.

Question 6

Is explicit instruction required for incitement? (case)

Answer 6

No.

Baxter v HM Adv

• incitement held even though there was no explicit instruction.
• Conversation discussing crime and accused’s motive was enough to convict.

Question 7

What is the inchoate offence of conspiracy?

Answer 7

Conspiracy is an agreement between 2 or more persons to commit a crime (which would have been a crime if 1 person had committed it).

Question 8

What are the 2 key requirements for conspiracy?

Answer 8

1. Agreement +

2. Criminal purpose

Question 9

Which case held that there is no need for an express agreement in Conspiracy, it can be inferred from actions?

Answer 9

Coleman
* was not in room during the agreement to carry out crime, but joined in with group - picked up weapon and pressured others into joining in.

held: conspiracy

Question 10

What did Wilson, Latta and Rooney hold re: conspiracy?

Answer 10

Wilson, Latta and Rooney

* Crimes done in the aim of initial conspiracy can be considered freestanding crimes- even if acquitted of conspiracy.

Question 11

Can one party be convicted of conspiracy if the other is acquitted? (case)

Answer 11

Yes

Howitt

• 1 party can still be convicted if the other party is acquitted
• trials are about legal guilt - ‘beyond reasonable doubt’

Question 12

What statute confirms that attempts are crimes?

Answer 12

Criminal Procedure (S) Act 1995, s294:

confirms that trying, unsuccessfully, to commit a crime is an offence.

Question 13

What is the actus reus of an attempt? (case) What is the test?

Answer 13

Test for attempt:
when the accused has gone from “preparation to perpetration”

HM Adv v Camerons
* Couple lied to police that pearls were stolen - this was enough even though they hadn’t actually made the fraudulent insurance claim yet.

Question 14

What is the mens rea for an attempt?

Answer 14

Mens rea for an attempt is the same as the full offence .

Question 15

What happened in Cawthorne v HM Adv?

Answer 15

Cawthorne v HM Adv

• Accused was guilty of attempted murder even though he had not attempted to kill.
• Fired shot into a room

Question 16

Is impossibility a defence to inchoate offences?

Answer 16

No

Question 17

What was held in *Docherty v Brown?

Answer 17

Docherty v Brown
* Accused obtained tablets he mistakenly believed contained drugs

Held: ‘attempt’ offence - regardless of impossibility he had moved from “preparation to perpetration”.
(attempt is disinct offence from the completed crime)

Question 18

Is impossibility a defence for conspiracy? (case)

Answer 18

No

Maxwell
* Accused could still be guilty when attempting to bribe a licensing board - even though that board were powerless to actually grant his license thus the final crime was impossible.

Question 19

What is art and part liability?

Answer 19

If a group of people share a common purpose to commit an offence, each member may be liable regardless of their individual contribution.

Question 20

What is different about art and party liability from an inchoate offence?

Answer 20

One cannot be liable for art and part unless the principal offence is actually committed.

Whereas inchoate offences are incomplete.

NB – liability is for the relevant offence (not a separate, inchoate offence)

Question 21

Which case lays down the basic principles for art and part?

Answer 21

HM Adv v Lappen

* Basis of liability is a common purpose to commit a crime.

Question 22

What happens if there is no common purpose?

Answer 22

There is no art and part - each accused is assessed separately.

Question 23

What happened in HM Adv v Welsh and McLachlan?

Answer 23

HM Adv v Welsh and McLachlan

• 2 men broke into elderly woman’s home, stole things and murdered her.
• Was not clear which one had struck the fatal blow.
• not enough evidence to suggest common purpose so each man had to be assessed separately.
• not enough evidence to convict one for the fatal blow – both were acquitted.

Question 24

Was there a common purpose for art and part in HM Adv v Johnstone and Stewart?

Answer 24

No.

HM Adv v Johnstone and Stewart

• A put pregnant woman in touch with B who carried out the abortion.
• A did not know B and no fee was exchanged.
• Judge directed jury to not hold liable if they found there was no fee and did not know each other.

Held: No art and part liability – no common purpose.

Question 25

Which case illustrates that explicit agreement is the easiest way to establish common purpose, but that is not necessary?

Answer 25

Gay v HM Adv * child A instructed by to sexually assault another child, by child B. * Issue: convicting child B of sexual assault on deleting the reference to instigating . Held: ‘spontaneous common purpose’ enough – jury could hold there was a common purpose even though there was no explicit instruction, because there was evidence of instruction (encouragement)

Question 26

Are all parties guilty of the offence of art and part, regardless of their contribution?

Answer 26

Yes, in general. There must be some contribution though (Kerr)

Question 27

Which case stated that an omission not to assist a ravished woman did not constitute art and part?

Answer 27

HM Adv v Kerr | * omission not to assist a ravished woman did not constitute art and part

Question 28

What happened in Fee v HM Adv

Answer 28

Fee v HM Adv * mother concealed child abuse by her partner Held: art and part - she facilitated the enterprise.

Question 29

In which case was a wife not liable for the full extent of assault injuries that happened before she joined in with husband?

Answer 29

McLaughlan v HM Adv * Man assaulted woman, then wife joins in. * Man and wife both convicted of assault to severe injury and danger to life, wife appealed: Held: Prosecution was unable to show that the very serious injuries (eventually led to death) had happened after the wife joined in… therefore she was not convicted of assault to severe injury and danger to life. She was convicted of assault to injury from the point she joined in.

Question 30

What was the principle in Kabalu v HM Adv?

Answer 30

It may be possible for someone to be liable for crimes one witnessed, before actually joining in. Kabalu v HM Adv * Before K arrived, victim had already been subject to severe injuries that would already kill him. * K witnessed more injuries, then joined in. Held: could not be liable under art and part for the murder – he had not witnessed the extremely grave injuries inflicted. BUT It might be possible for someone who joins in partway through for actions he saw happen before he joined in.

Question 31

What role do accessories and co-principals have in art and part?

Answer 31

Accessories: peripheral role to Principal Co-Principals: joint role - both actively involved.

Question 32

What happened in Young v HM Adv?

Answer 32

Young v HM Adv * Co-accused were senior in company, acquitted for fraud. * A did not have power to carry out fraud, so since his co-accused were acquitted A was also acquitted.

Question 33

How was Young distinguished in Capuano v HM Adv?

Answer 33

Capuano v HM Adv * All 3 people very actively involved in throwing/attempting to throw bricks. * 2 acquitted, 1 was convicted. He appealed. * Court distinguished from Young: here they were all co-principals. The acquittal of co-principals made no difference to his liability

Question 34

What is the test when someone goes beyond the 'common purpose' in art and part?

Answer 34

was conduct foreseeable as a result of joint venture?

Question 35

What happened in O'Connell v HM Adv?

Answer 35

O'Connell v HM Adv * Set out to assault with sticks. * 1 uses hammer instead Held: foreseeable - sticks and hammers similar enough.

Question 36

Why was the outcome of going beyond common purpose different in McKinnon v HM Adv than in O'Connell?

Answer 36

McKinnon v HM Adv * Agreed to commit assault and robbery - brought knives for robbery to threaten. * During the course of the robbery, 2 Vs were injured and 1 V killed. * Unclear which member inflicted fatal wound. Held: Liability is based on what is foreseeable as likely to happen. Here there was an obvious risk that life may be taken – group held liable for death. Even if death not part of original plan. Because knives were in contemplation.

Question 37

If someone is killed in art and part, how is mens rea determined to decide which type of homicide offence applies?

Answer 37

If you do know who carried out fatal act, their mens rea will tell you what kind of homicide offence applies. Otherwise will have to look at the situation to decide if murder or culpable homicide.

Question 38

Why is art and part so controversial?

Answer 38

Art and Part is controversial because someone an be convicted of mandatory life sentence (if for murder) without actually carrying out the crime or agreeing to it.

Question 39

What happened in Jogee and how is English law now different from scots in the area of art and part/joint enterprise?

Answer 39

Similar doctrine in English law was abolished v recently in Jogee, UKSC overturned the rule - reflected concerns about the fairness of imposing liability in this way. Jogee: * where someone goes beyond the common purpose any accessories will only be liable if they *intended* to encourage and assist. * Narrowed doctrine to the point that you would have to show intention. Roll out not totally clear yet. Foresight is sometimes seen as evidence of intention, so how far this actually goes is unclear.

Question 40

Can someone withdraw in art and part? (case)

Answer 40

Yes, but withdrawal must be done before at a stage that would make a difference to crime being carried out. MacNeil * May avoid liability if they disassociate from common purpose and tell the other members of the group they're withdrawing. * Must discourage the others from going ahead – must happen at a stage were doing it would make a difference to crime being carried out. Test: moving from preparation to perpetration. If activities already at perpetration, still liable.

Question 41

Do common law principles of art and part apply to statutory offences? (statute)

Answer 41

Yes Criminal Procedure (Scotland) Act 1995, s 293

Question 42

Art and part can apply to statutory offences even where the offence can only be committed by a certain type of person that they aren't. Which case illustrates this?

Answer 42

Vaughn | * Man convicted of art and part incest even though he was not one of relevant relations.