Participation in Crime

Question 1

s.8 of the Accessories and Abettors Act 1861

Answer 1

It states that anyone who aids, abets, counsels, or procures the commission of an indictable offence is liable as if they were the principal offender.

Question 2

What happens to accessory for a crime which isnt charged

Answer 2

Serious Crime Act 2007 inchoate offence of encouraging or assisting

Question 3

“But for” and accessoryship

Answer 3

• “but for” test doesn’t apply - Whether help and/or encouragement worked or not doesn’t matter. (R v Rowe)
  
  • But whether the actus reus of crime legally goes through or not matters, Thornton v Mitchell bus driver would rely on conductor, so conductor is also not accessory (also not gross negligent cuz no duty of care and no recklessness cuz he didnt forsee the danger—- although post-adomako may be able to make a case for gross negligence “reasonable person”)
  • if P’s actus reus goes through but not mens rea, there is a crime. Baggery in R v Bourne

Question 4

Assistance overview

Answer 4

2. Assistance (not-necessarily communicated)
   
   • Any sort of help is accessory
   • In case of assistance communication is not required (State v Tally)
   • No need for the act performed to be substantial in comparison to principle. (R v Giannetto) (R v Rowe)

Question 5

R v Calhaem

Answer 5

Topic: second party accessoryship – Encouragement – Actus Reus

Context Summary: A person hired a killer, who was later found to have independently decided to kill.

Legal Question: Does encouragement require causal influence over the crime?

Legal Principle: Encouragement must be communicated to the principal, but need not cause the crime.

Golden Nugget: Communication, not causation, is key in establishing encouragement.

Question 6

R v Clarkson

Answer 6

Topic: second party accessoryship – Omission – Encouragement

Context Summary: Soldiers witnessed a rape and did nothing.

Legal Question: Can mere presence amount to encouragement?

Legal Principle: Mere presence is not sufficient unless there’s a duty to act.

Golden Nugget: Omissions only count if a legal duty exists.or if A knew it was encouraging P

Question 7

R v Coney

Answer 7

Topic: second party accessoryship – Spectatorship – Encouragement

Context Summary: Spectators at an illegal fight charged for encouraging the crime.

Legal Question: Can passive presence encourage a crime?

Legal Principle: Passive presence can constitute encouragement if it encourages the principal.

Golden Nugget: Spectating can equal encouraging – depends on the principal’s perception.

Question 8

State v Tally

Answer 8

Topic: second party accessoryship – Assistance – Communication

Context Summary: Judge intercepted a telegram to prevent warning of a murder.

Legal Question: Is communication necessary for assistance liability?

Legal Principle: Assistance need not be communicated to the principal.

Golden Nugget: Helping from the shadows still counts.

Question 9

R v Giannetto

Answer 9

Topic: second party accessoryship – Assistance – Degree

Context Summary: Unclear if D or someone else committed murder, but D had encouraged it.

Legal Question: Is it necessary to prove who did the act?

Legal Principle: No need to distinguish principal and accessory if actus reus and mens rea exist.

Golden Nugget: Either you did it or helped not helped small big – either way you intended and tried to help, you’re guilty.

Question 10

R v Osborne

Answer 10

Topic: second party accessoryship – Principal vs Accessory Distinction

Context Summary: Case discussing joint charges for crime commission.

Legal Question: Must roles of principal and accessory be distinguished in court?

Legal Principle: No – charges and punishments are the same.

Golden Nugget: Law cares about participation, not hierarchy.

Question 11

R v Rowe

Answer 11

Topic: second party: Assistance

Context Summary: D’s help may not have contributed directly to the crime.

Legal Question: Must assistance have a direct effect?

Legal Principle: No – actual influence is not required for liability.

Golden Nugget: Ineffective help is still help in the eyes of the law.

use with R g Giannetto

Question 12

Thornton v Mitchell

Answer 12

Topic: second party accessoryship – No Crime Committed – No Liability

Context Summary: Conductor directed a bus which hit someone; driver acquitted.

Legal Question: Can an accessory be liable if no crime occurred?

Legal Principle: No liability if the principal didn’t commit the actus reus.

Golden Nugget: No crime = no accessory liability.

Question 13

R v Bourne

Answer 13

Topic: second party accessoryship – Actus Reus Without Mens Rea

Context Summary: Husband forced wife to commit bestiality.

Legal Question: Can someone be guilty even if the principal lacked mens rea?

Legal Principle: Yes – as long as actus reus occurred, the accessory may be liable.

Golden Nugget: Intent of the pusher matters, not the puppet.

Question 14

NCB v Gamble

Answer 14

Topic: second party accessoryship – Mens Rea – Intention and Knowledge

Context Summary: Truck driver took overloaded lorry despite knowing it broke the law.

Legal Question: What is the required mens rea for complicity?

Legal Principle: Must have both intention to assist and knowledge of crime.

Golden Nugget: Knowing and helping = guilty mind.

Question 15

R v Gillick

Answer 15

Topic: second party accessoryship – Intention – Oblique

Context Summary: Doctor gave contraception advice to underage girl.

Legal Question: Can indirect intention amount to criminal intention?

Legal Principle: Oblique intent is for jury to decide based on foresight.

Golden Nugget: oblique intent rarely applies post jogee

Question 16

R v Jogee [2016]

Answer 16

Topic: second party accessoryship – Foresight vs Intention

Context Summary: Joint enterprise case revisited.

Legal Question: Is foresight enough to prove intent?

Legal Principle: Foresight is evidence, not a substitute, for intention.

Golden Nugget: Jogee reset the rules – intent is key.

Question 17

Johnson v Youden

Answer 17

Topic: second party accessoryship – Knowledge of Crime

Context Summary: Solicitors assisted fraud without full knowledge.

Legal Question: How much must an accessory know?

Legal Principle: Must know essential facts making it criminal.

Golden Nugget: You can’t help a crime you don’t know is a crime.

Question 18

R v Bainbridge

Answer 18

Topic: second party mens rea Knowledge

Context Summary: Supplied equipment for crime but unsure of exact details.

Legal Question: Is specific knowledge of the crime needed?

Legal Principle: Knowledge of general type of offence is sufficient.

Golden Nugget: type of crime is important

Question 19

R v Maxwell

Answer 19

Topic: second party accessoryship – Range of Crimes Knowledge

Context Summary: D escorted terrorists knowing some crime would occur.

Legal Question: Can knowledge of a range of crimes suffice?

Legal Principle: Yes – liability arises if the committed crime was among foreseen possibilities.

Golden Nugget: Your mental crime buffet can still land you in jail.

mens rea - bainbridge maxwell

Question 20

Encouragement overview

Answer 20

1. Encouragement (communicated)
   
   • Encourgement is accessory (if communicated to P) (R v Calhaem)
   • doing nothing is not accessory unless legal duty of care (R v Clarkson ) - soldier watches woman get raped does absolutely nothing
     R v Aru [2020]

Golden Nugget: No intent, no murder — presence alone won’t do it post-Jogee.

‘cases in which opposing sides engaged in violence have a common purpose of the kind required to fix all participants with liability for the death of anyone resulting… will be rare.’
However, there need be no directcausal connectionbetween the words of encouragement and the commission of the offence.

- However, if P got encouraged by the lack of act- actus reus is satisfied (R v Coney) - spectators for illegal prize
    
    However if they themselves weren’t aware that this was encouraging the P, then it wouldn’t satisfy mens rea

Question 21

Mens Rea for accessoryship

Answer 21

intention to assist or encourage as well as knowledge of offence (NCB v Gamble)

eg. imp because restaurant serves alc — helps crime of drunk driving — but intention?

1. Was the intention to help or encourage?

contrasts from committing crime themselves → eg. intention to cause gbh to intention to help or encourage someone (they don’t need to want the crime but they need to want to help)

intention becomes a tricky question here eg. violent media or selling murder weapons.

can be direct or indirect(oblique) intention — can be innocent depends on jury (R v Gillick)

Recklessness is insufficient — D must intend to assist or encourage the offence (R v Jogee [2016]) —Foresight of a possible crime is evidence of intention, not a substitute for it.

1. Did they know the nature of the offence or relevant circumstances? “you can’t help if you don’t know what you’re helping for” (Johnson v Youden)encourage or help with “specific act”strict liability only applies to P, A needs to know it was criminalExtent of knowledge:
   1. Knowledge of qualities that make it criminalsuspicion is not enough
   2. detail of criminal offenceprecise details not necessary if type of crime envisaged is established (R v Bainbridge)even if A is not sure, a possible crime he envisioned P might commit
      ”an accessory who leaves it to his principal to chose is liable out of his list of possibilities” (R v Maxwell)R v Bainbridge vs R v Maxwell distinction: “type of crime” vs “range of crimes.”if no deliberate substantial deviations made by P, the details known to A stand. ‘a frolic of P’s own’

Question 22

Joint Enterprise Overview

Answer 22

Joint Liability

One of the tasks of the jury, therefore, is to decide whether A did intentionally assist or encourage P to perform the criminal acts in question

eg. Suppose E drives the getaway car so fast in escaping the scene of the crime that a pedestrian is killed. A, B, C, D, F and G will be liable as accessories to the offence of causing death by dangerous driving in addition to the robbery. Although this offence is not part of the common purpose, the other parties are complicit because this offence arosefrom the execution of the common purpose. They are liable because E is liable.

Suppose, however, A decides to shoot a bank teller, what is the liability of B, C, D, E, F and G? Are they complicit in the murder as well as the robbery or is their liability only limited to the robbery (the common purpose)? This is different from the previous case because the killing does not form the common purpose, does not arise from its execution and is deliberate and intentional.

Case Law:
Recent case of RvHussain (joint enterprise)

Context Summary: The defendants were involved in a plan to rob a drug dealer, during which one participant fatally stabbed the victim. The defendants were convicted of murder and conspiracy to rob.

Legal Question: Does joint enterprise liability require a measurable contribution or knowledge of a weapon used in the crime?

Legal Principle: The Court of Appeal held that a measurable contribution is not necessary for joint enterprise liability. Participation in a common plan, with the intent to assist or encourage the commission of the crime, suffices. Lack of knowledge about the presence of a weapon does not automatically absolve liability.

Golden Nugget: In joint enterprise, mere presence or minor involvement can lead to liability if there’s shared intent; specific knowledge of all elements, like weapon possession, isn’t required.

R v Baldessare (scope of intent)

intentional encouragement with knowledge — passenger in joyride

Conviction of Accessory for a Different Offence from the Principal

> Where lethal violence is foreseeable, even if not intended, secondary parties may be liable for manslaughter if they participate in the violent venture.

• Uncertain post-Jogee: Now, if A contemplated (without intending) lethal violence and continued to assist, they may be guilty of manslaughter.
• R v Tas [2018]: Confirmed this approach. Even where the principal uses unexpected violence (knife unknown to A), liability for manslaughter remains if A joined the violent plan.
• Exception: Where P’s act is so removed or overwhelmingly supervening, causation may break. like in Anderson and Morris. Not applicable in Tas.

Mismatch of Liability

Study Task Example Scenarios:

• Procured Shooting (minor wound) → A likely not guilty of attempted murder unless clear intent.
• Provoking Loss of Control → A may still be liable for murder if intended/encouraged fatal violence despite P’s partial defence.

Question 23

Deliberate Deviation (Foresight vs Intention of Accessory) Progression

Answer 23

Deliberate Deviation

1. Pre-2016 Law: The Contemplation Principle

Before 2016, joint enterprise liability diverged from general accessoryship. Under Chan Wing-Siu and Powell; English, a secondary party could be convicted of murder if they merely foresaw that the principal might commit murder during a joint criminal venture. Intention to assist or encourage was not required; foresight alone sufficed.

R v Powell; R v English

R v Rahman (foresight = intention old)

• If a secondary party foresaw or intended a violent crime (like GBH), then they remain liable, even if the principal deliberately escalates to something more extreme (like murder).
• The law should not excuse accessories simply because things got more serious — unless that seriousness was totally unforeseeable or fundamentally different.
• Until 2016, A and B were complicit in the murder simply upon proof that they contemplated that C might kill someone in the course of the burglary with themens reafor murder
• Criticism: This framework blurred moral distinctions between principals and accessories, producing unfair outcomes (e.g., mandatory life sentences for youths who merely foresaw potential escalation without intent).

2. Clarification in R v Jogee [2016]

The Supreme Court in Jogee overruled Chan Wing-Siu and its progeny. It restored the orthodox position: Intention to assist or encourage is required for accessory liability.

• Foresight is evidence, not substitute, fo intent.
• The court reinstated symmetry between murder by a principal and secondary liability: the accessory must intend that the murder be committed or that serious injury occur.
• Conditional intent suffices: e.g., if A assists burglary knowing P will only kill if necessary to escape, A may still be liable.

> Para 89–90: “Intention to assist is not the same as desire. It can be conditional. Foresight is merely evidence of intent.”

• Illustration 12: A reluctantly joins P in a burglary knowing P carries a gun. P uses it only when necessary. A is liable for murder not because he foresaw it, but because he intentionally assisted on condition that murder might become necessary.
• foresight is evidence

> “If the jury is satisfied that there was an agreed common purpose to commit crime A, and if it is satisfied also that D2 must have foreseen that, in the course of committing crime A, D1 might well commit crime B, it may in appropriate cases be justified in drawing the conclusion that D2 had the necessary conditional intent that crime B should be committed, if the occasion arose. But that will be a question of fact for the jury in all the circumstances.”

3. Ongoing Issues: Evidentiary Uncertainty

• R v BKY [2023]: 10 youths convicted of murder despite different levels of involvement. Appeals failed. The Court affirmed Jogee but did not clarify what amounts to sufficient evidence of intent.

> The law still lacks clear jury guidance on how to infer intent from foresight or participation and what is conditional intent.

• Australia (Miller v The Queen [2016]) rejected Jogee and upheld the earlier foresight-based liability from Chan Wing-Siu.

4. Current Doctrine Post-Jogee

R v Anderson and Morris (scope of intent)

“unforseen, deliberate, and unreasonable actions, circumstances, or change”

The correct direction would have distinguished between what the joint enterprise was (beating up V) and what it became (stabbing V to death). Morris could not be liable for that if he did not contemplate the use of a knife (you cannot help or encourage what you do not know about). If V had died as a result of a blow from a fist or foot, such blows would have been contemplated and so would have properly resulted in a conviction for manslaughter.

To convict a secondary party for a principal’s murder:

• There must be a shared common purpose (e.g., burglary).
• The accessory must intend to assist or encourage the murder (or GBH) — not merely foresee it.
• Foresight of murder is not sufficient, but it may be strong evidence of intent.

> Jury must decide whether the accessory intended the murder to be committed — even conditionally.

Question 24

Independent Criminal Liability for Accessoryship or Liability for Provoking Loss of Control

Answer 24

R v Gnango

Back:

Topic: second party accessoryship – Joint Enterprise & Transferred Malice

Context Summary: Gnango engaged in a shootout with another man. A bystander was accidentally killed by the other man’s bullet.

Legal Question: Can a person be held liable for murder where the fatal act was committed by someone else in a mutual violent enterprise?

Legal Principle: Participation in a joint enterprise involving deadly violence can result in liability for the consequences, including death caused by the other party.

Golden Nugget: Common intention to kill, the party or success doesn’t matter, trasnferred malice and attempt and gross negligence

R v Seed

In R v Seed [2024], the Court of Appeal reaffirmed this principle, but under the revised Jogee standard: liability now depends on proof that the secondary party intended to assist or encourage the fatal act, not merely foresaw it.

The Gnango principle isn’t just about transferred malice or foresight alone. At its core, it stands for this:

> If you voluntarily participate in a violent joint enterprise knowing that deadly force may be used, you can be held liable for the resulting death — even if you didn’t personally inflict the fatal injury.

It’s a principle of joint responsibility for foreseeable lethal consequences, especially when you intentionally support or escalate violence.

Question 25

Tyrell Principle

Answer 25

- Accessories or Principals as Victims - Tyrell Principle - A person cannot be an accessory to an offence designed for their own protection. - **Tyrell (1894)** → Young girl inciting her own unlawful sexual intercourse → **Not liable**. - **Exception: Gnango (2011)** → A encouraged shooting resulting in his own death → Held liable as accessory to his own murder → Suggests murder **is not an offence created for victim’s protection**. > Gnango creates a controversial exception to the Tyrell principle — murder may not be seen as solely protective. > - R v Bourne: The P could also be a victim and lack mens rea, if this happens, A procured, A can be charged.

Question 26

Accessoryship Withdrawal Overview

Answer 26

- Withdrawal # Withdrawal | Factor | Threshold (Words/Walking Away) | | --- | --- | | Spontaneous violence | **Mitchell Low threshold** (Words/Walking Away) | | Planned and Serious Crime | robust withdrawal needed (e.g. **Grundy**, **Illustration 13**) High Threshold (Communication + Positive Action) | | Crime imminent/already advanced | High threshold → likely need physical or external intervention | ### Things to consider ### 1️⃣ Nature and Extent of A’s Involvement - Where the offence is spontaneous, withdrawal can be informal. Where serious and planned, withdrawal requires clear communication or countermanding previous encouragement. - **Mitchell [1999]** : Spontaneous violence → Mere walking away was **sufficient withdrawal**. Communication not required. - **Rook** : Planned serious offence → Mere non-participation (not turning up) was **not enough**. Withdrawal requires **communication of change of mind**. --- ## 2️⃣ Nature of the Offence > The graver the crime, the more vigorous the withdrawal required. > - **Grundy: Procurers and Inciters (Higher Duty):** If A **incited or procured** the offence → Arguably must do **more** to countermand → Higher causal responsibility. - Becerra: Court said words alone were **not enough to withdraw** when offence was serious/imminent → even though Becerra was not a procurer, logic applies **a fortiori** to procurers. --- ## 3️⃣ How Far the Enterprise Has Advanced - The later the stage, the more must be done to effectively withdraw. When risk has crystallised, withdrawal may require physical prevention or external intervention. - **Becerra and Cooper**: Joint enterprise advanced (knife given, killing imminent) → Saying "let’s go" **not enough** → Conviction upheld. ### **Roskill LJ (Key Quote):** > "Vastly different and vastly more effective" action needed where killing was imminent. Implies physical intervention or calling for external help may be necessary. >

Question 27

R v Hussain (2023/2024)

Answer 27

Topic: second party accessoryship – Joint Enterprise Context Summary: During a robbery plan, one participant fatally stabbed the victim. Legal Question: Does liability require measurable contribution or knowledge of weapon? Legal Principle: No. Participation in the plan + intent to assist is sufficient. Golden Nugget: Mere involvement + intent can suffice even without knowledge of the weapon.

Question 27

R v Baldessare

Answer 27

Topic: second party accessoryship – Joint Enterprise and Intent Context Summary: Passenger in joyride intentionally encouraged dangerous driving. Legal Question: Can intentional encouragement without physical act result in liability? Legal Principle: Yes. Encouragement with intent is enough. Golden Nugget: Words can be as culpable as actions if they show intent.

Question 28

R v Tas

Answer 28

Topic: second party accessoryship – Escalation & Deviation Context Summary: Joint attack → Co-defendant unexpectedly used knife → murder. Legal Question: Is A liable for murder or manslaughter? Legal Principle: If lethal violence foreseeable and A participated, A liable for manslaughter. Golden Nugget: Participating in risky violence = risk of manslaughter.

Question 29

R v Anderson and Morris

Answer 29

Topic: second party accessoryship – Deliberate Deviation Context Summary: Fight escalated to fatal stabbing (unplanned). Legal Question: Is A liable for unexpected killing? Legal Principle: No liability where act was fundamentally different from contemplated violence. Golden Nugget: If it’s a “frolic of his own,” A walks free of murder.

Question 30

R v Powell; R v English

Answer 30

Topic: second party accessoryship – Foresight progression Context Summary: Foreseeable murder by co-offender → secondary parties liable. Legal Question: Is foresight enough for murder liability? Legal Principle: Yes (pre-Jogee), foresight alone sufficed. Golden Nugget: Before Jogee, foresight = intention.

Question 31

R v Jogee [2016]

Answer 31

Topic: second party accessoryship – Foresight vs Intention Context Summary: Supreme Court corrected foresight principle. Legal Question: Is foresight enough to prove intent? Legal Principle: No. Foresight is evidence, not substitute for intent. Golden Nugget: Post-Jogee → foresight ≠ guilt. Jury must find intent.

Question 32

R v BKY

Answer 32

Topic: second party accessoryship – Joint Enterprise Uncertainty Post Jogee Context Summary: 10 youths convicted of murder → unclear proof of individual intent. Legal Question: How clear must evidence of intent be post-Jogee? Legal Principle: Unclear — issue remains unresolved. Golden Nugget: Jogee standard still evolving → no clear rule yet.

Question 33

Miller v The Queen ( Australia)

Answer 33

Topic: second party accessoryship – Rejection of Jogee (Foreign Jurisdiction) Context Summary: Australia refused to follow Jogee → kept foresight-based liability. Legal Question: Should foresight be enough? Legal Principle: Yes, in Australia foresight can suffice. Golden Nugget: Not all common law countries followed Jogee.

Question 34

R v Gnango

Answer 34

Topic: second party accessoryship – Independent Liability Loss of Control Provocation and Transferred Malice Context Summary: Shootout → bystander killed by other gunman → A liable. Legal Question: Can A be liable for killing in mutual violence? Legal Principle: Yes → joint enterprise + transferred malice. Golden Nugget: Sign up for violence → sign up for death.

Question 35

R v Aru

Answer 35

Topic: second party accessoryship – Presence & Intent Actus Reus Context Summary: Group attack → A unaware of knife → murder. Legal Question: Is mere presence enough for murder? Legal Principle: No. Intent is needed post-Jogee. Golden Nugget: Presence ≠ guilt unless intent shown.

Question 36

R v Seed

Answer 36

Topic: second party accessoryship –Post Jogee Uncertainty Context Summary: Violent gang attack → killing → intent uncertain. Legal Question: Can foresight alone convict for murder? Legal Principle: No → Intent to assist murder required post-Jogee. Golden Nugget: Post-Jogee → foresight strong evidence, but intent required.

Question 37

R v Tyrell & Tyrell Principle

Answer 37

Topic: secondary party accessoryship – Protective Offences Context Summary: Underage girl incited sex with adult. Legal Question: Can victim be liable as accessory? Legal Principle: No → protective offence bars liability. Golden Nugget: You can’t aid in harming yourself (usually).

Question 38

R v Bourne

Answer 38

Topic: secondary party accessoryship Procurer Accessory Liability despite principal defence not liable Context Summary: Husband forced wife to commit bestiality → wife under duress. Legal Question: Can procurer be liable if principal has defence? Legal Principle: Yes. A’s intent is what matters. Golden Nugget: Procurer guilty despite principal’s duress defence.

Question 39

R v Mitchell

Answer 39

Topic: secondary party accessoryship – Withdrawal (spontaneous violence) Context Summary: Spontaneous fight → A walked away → victim later killed. Legal Question: Is communication needed to withdraw? Legal Principle: No → spontaneous → walking away sufficed. Golden Nugget: In spontaneous violence, walking away = withdrawal.

Question 40

R v Rook

Answer 40

Topic: secondary party accessoryship – Withdrawal (planned crime) Context Summary: Planned murder → A didn’t turn up. Legal Question: Is non-participation enough? Legal Principle: No → must communicate withdrawal. Golden Nugget: Not showing up in serious, planned crime isn’t showing withdrawal.

Question 41

R v Grundy

Answer 41

Topic: secondary party accessoryship – Withdrawal (dissuasion) Context Summary: A gave layout for burglary → later tried to dissuade. Legal Question: Is dissuasion enough? Legal Principle: Yes → sufficient as crime was not yet imminent. Golden Nugget: Early dissuasion = valid withdrawal.

Question 42

R v Becerra and Cooper

Answer 42

Topic: secondary party accessoryship – Withdrawal (advanced joint enterprise) Context Summary: Burglary → killing imminent → A said “let’s go” → left. Legal Question: Is saying “let’s go” enough? Legal Principle: No → at advanced stage, must do more. Golden Nugget: When killing is imminent → words are not enough.