Complicity (Secondary Party Liability – Active)

Since there are two main ways of participating in crime, we will move on to the second. The
first one involved the secondary party giving help/encouragement to a principal, but not being
an active participant in the actual commission of the offence. The second form involves the
secondary party having an active role to play in the commission of the offence and sharing a
common purpose with the principal to commit that offence. This is known as joint enterprise.

1. Basic outline of joint enterprise liability:

- The core of joint enterprise liability arises where D1 and D2 agree expressly/implied to commit
one crime, crime A, and, in the course of doing so, D1 commits a different crime, crime B.
- The basic principle is that D2 will be a party to both crime A and crime b, although crime B was
not agreed to, if it resulted from the execution of the joint enterprise.
- If it did not result from the execution, and the deviation by D1 is deliberate, D2 will remain
liable if they contemplated its commission, but otherwise will not be liable.
- It is known as joint enterprise liability, since liability for crime B arises from a common purpose
to commit crime A. D2’s liability is justified on the ground that, by continuing with the common
venture after realizing that D1 might commit crime B in the course of it, they are regarded as
having also lent their support to this offence.

• In the case of Gnango:

- The Supreme Court held that there can be a joint enterprise even where there exists no
degree of cooperation between the parties and even when they are antagonists (rivals).
- A and P engaged in a gunfight in public, each intending to kill/cause serious injury to the other.
- P accidentally shot and killed a passerby.
- The Supreme Court decided (Lord Kerr dissenting) that both A and P were guilty of murder.
- In this case, clearly P was guilty of murder on the transferred malice principle. A will also be
guilty of murder if the prosecution can show that he was party to a joint enterprise to commit
murder.
- There are two problems:
i. They were two independent enterprises rather than one joint enterprise. Joint enterprises
have a common aim, whereas A and P had independent aims of killing each other/causing
serious injury.
ii. Secondly, if the joint enterprise they engaged in is murder, the SC is holding in effect that one
can aid and abet one’s own murder.

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The basic principle governing joint enterprise liability is the same as in accessory ship generally; namely
that because the accessory’s liability derives from that of the principal, any crime that P commits A also
commits, so long as A intentionally assisted or encouraged its commission. This would be the task of the
jury then to draw inferences from the conduct.

 Baldessare: D1 took the car for joyride without permission. D2 joined him and it resulted in the
death of the pedestrian. Both were charged for manslaughter, and the court held that D2 had
intentionally signed up for joy riding and thus was a willing participant.
 Anderson and Morris: Anderson and Morris went to beat the victim. Morris himself did not take
part. Anderson then stabbed the victim and Morris denied knowing that Anderson had a knife.
The Court of Appeal held that Morris could not be guilty of manslaughter as he did not
contemplate the use of a knife (you cannot help or encourage what you do not know about). If
the victim had died due to a blow from a fist or foot, such blows would have been contemplated
and then only could Morris be held guilty for manslaughter.

There are three categories in the principle of joint enterprise:

 Liability for unforeseen consequences of executing the joint enterprise.

 Liability for accidental deviations in the execution of joint enterprise.
 Liability for deliberate deviations in the execution of joint enterprise.

Liability for unforeseen consequences of executing the joint enterprise:

For instance, if D1 and D2 commit arson on a building, and unknown to them someone was in the
building and was killed, then D1 who did the torching would be guilty of manslaughter and so would D2
as an accessory.

Liability for accidental deviations in the execution of joint enterprise:

For instance, if D1 and D2 are engaged in a joint enterprise to kill B, and accidently D1 who is the
principal offender shoots C, then by the principle of transferred malice would be guilty of murder of C.
D2 as an accessory would also be guilty of murder as an accessory.

Liability for deliberate deviations in the execution of joint enterprise:

There are three rules for this category:

1. P and A must have embarked upon the commission of an agreed crime.

2. A must contemplate that P, in addition to or in substitution for this crime, might commit a
further crime.
3. The crime actually committed did not differ substantially from that contemplated.
 Chan Wing Siu: Three robbers burst into V’s flat. One of them murdered the husband with a
knife which the others knew that he was carrying. The Court held that knowledge that a co

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 accused carried a knife was strong evidence that its use was contemplated which was enough to
hold the accessory liable for the principal’s crime.
 R v. Powell; Daniels: Three men went to purchase drugs from the drug dealer (joint enterprise),
but having gone to the house, the drug dealer was shot dead when he came to the door. It
wasn’t sure as to who shot the victim, and the defence argued that all three of them be
acquitted since two of them did not pull the trigger. The Court held that whoever fired the gun
was guilty of murder and the other two were accessories as they knew that the third man was
armed with a gun and could then contemplate that he might use the gun to kill or cause GBH to
the drug dealer. Therefore it is sufficient that if the secondary party realizes that the primary
party might kill with intent or cause GBH.
 R v. A, B, C and D: D2 could only be liable for murder if D1 had committed and D2 contemplated
not merely that D1 might kill but that he might kill with the mens rea for murder.

Fundamentally different rule:

If A procures P to kill C by poisoning and P having no poison, kills C by shooting him with a gun, A is still
complicit. A got what they wanted or expected.

However, it would be different if P deliberately or knowingly killed someone other than the expected
victim. Then A would not be guilty as an accessory.

 R v. English: The joint enterprise was to attack V with wooden posts. P went further and stabbed
V to death with a knife which A had not known about. Since the joint enterprise was not to kill V
but to attack him, A could not be held to have intentionally assisted or encouraged P to do
something so fundamentally different from the planned attack. If he did not know about the
knife,, he would not have contemplated its use and thus would not be guilty of murder, as the
act done was fundamentally different from the planned attack. However it was made clear that
A would have been liable had he known of the knife but P killed with a gun, because they are
both lethal weapons of offence.
 R v. Gamble: A and P agreed to deliver punishment kneecapping on V by blowing his kneecaps
with a gun. P went beyond slitting V’ throat with a knife. This was a fundamentally different type
of act and A was not guilty. He was only guilty of a conspiracy to commit grievous bodily harm
with intent.
 R v. Rahman: Here the accessories knew of the knife. The court gave the following guidelines:

P’s use of a weapon to kill V does not affect A’s liability, even though he was unaware of it, if A
participated in an attack with P knowing that P might kill or intentionally cause GBH unless:

a. P produces a weapon of which A is unaware

b. And which is more lethal than any weapon A contemplates P or any other participant to be
carrying, and for this reason P’s act is to be regarded as fundamentally different.

Therefore A would not be guilty if he contemplated that P was carrying a baseball bat for instance and it
turns out to be a gun.

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  R v. Mendez: A is not liable for the death of V if it resulted from the deliberate act of P. This act
was not foreseen by A and was more life threatening than acts of the kind foreseen or intended
by A.

Difference in offence or liability:

1. Conviction of accessory for a different offence than that of the principal:

R v. Rafferty: A was involved in an attack on V. he left the scene early and the other parties meanwhile
dragged V into the sea and left him to drown. The chain of causation was broken and the defendant was
not guilty.

However, a manslaughter conviction still remains possible where the deviation from the joint enterprise
does not involve a fundamentally different mode of killing, and A and P have different ideas as to what
the outcome should be from the agreed enterprise.

R v. Carpenter: P was guilty of murder. A who was P’s mother knew that A was carrying a knife when
she accompanied him. The court held that if A had realized that P could use the knife to cause some
injury or harm, she could be guilty of manslaughter

2. Mismatch of Liability:

To be guilty of an accessory, the commission of a crime is required. If P does not commit the crime, the
party cannot be guilty as an accessory, but may be guilty of the inchoate offence of encouraging or
assisting the commission of an offence under the Serious Crimes Act.

If P commits the actus reus of the offence, but lacks the men rea or has a defence, and A has that mens
rea, then A can still be convicted of the offence.

3. Accessories as victims:

A person cannot be convicted as an accomplice to an offence created for their protection.

 R v. Tyrell: An underage girl who incited a man to have intercourse with her was not guilty of
aiding unlawful sexual intercourse as the offence was aimed at protecting the girl herself.

Withdrawal:

Once A has signed up for assistance or encouragement of the crime, he can nevertheless withdraw and
escape liability. However, he may be guilty of the inchoate offence of conspiracy if he has committed it.
Withdrawal varies according to the circumstances of the case, taking into account three things:

1. Nature and extent of A’s involvement

2. Nature of the offence
3. How far has the enterprise advanced

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Nature and extent of A’s involvement:

Communication of withdrawal to the principal offender is not needed in spontaneous cases:

 R v. Mitchell (Frank): A, B and C had started a fight with a waiter outside the restaurant. They
kicked him repeatedly and then walked away. C then returned with a stick and killed V. A and B
were acquitted as simply walking away was seen as withdrawal.

R v. Rook: the Court held that not turning up for the offence simply is not withdrawal.

R v. Grundy: A gave details of the layout of a flat to P who intended to burgle it. Two weeks before the
planned burglary, A sought to dissuade P from committing it. This was seen as sufficient withdrawal.

Also the procurer has more responsibility to communicate withdrawal as compared to aiders or
abettors.

Nature of the offence:

The more serious the offence, the more A must do to countermand this participation.

How far has the enterprise advanced:

If the crime has already begun, then a party will need to do more than merely communicate their
withdrawal.

 R v. Beccerra and Cooper: B, G and C took part in a burglary. C gave B a knife. They were
discovered by the tenant at which point C stated ‘Let’s go’ and climbed out of the window. The
court held that C was still liable as an accessory as he should have had done more to
communicate his withdrawal. By giving the knife, he had contemplated that the tenant could be
killed or suffer GBH.

Relationship between accessorial liability and inchoate liability:

Inchoate liability arises when a principal does not carry out the offence. The accessory is then charged
under the Serious Crimes Act in substitution for complicity.

 If A procures B to kill someone, and B does not, A would be guilty under S44.
 If A supplies articles or information useful in the commission of a crime for instance, and A
provides the articles or advice not because they intend to be helpful or encouraging, but
because they have their own reason for doing this, for example making money.
 If A encourages or assists the commission of an offence of which they do not know the precise
details, knowing that it is one of a number of possible offences that the other intends to
commit.
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