Where two or more parties embark on a joint enterprise, what is the basis of liability for an accomplice for crimes committed by his partners which are not intended by him?
Criminal Law 2 Coursework
Where two or more parties embark on a joint enterprise, what is the basis of liability for an accomplice for crimes committed by his partners which are not intended by him?
The liability of accomplices to crimes is set out in the Accessories and Abettors Act 1861, s8. This states that ‘the liability of an accessory is liability for an act done by the principal’. ‘Accessory’ should be given its ordinary meaning, per Att-Gen 1 of 1975 and if each party fulfils part of the conduct element and each has sufficient mens rea they can be tried as co-principals.
The accomplice does not perform the actus reus itself, but there must be an actus reus committed by his partner. The conduct element is satisfied by the accomplice giving assistance, encouragement or procuring before, or at the time of the commission of the principal offence. This may consist of holding a woman down while she is raped, or keeping watch, supplying instruments or information, this is aiding and abetting; by setting out to see what happens and taking appropriate steps to produce the offence, this is procuring the offence. Voluntary presence at the scene of a crime is insufficient, some active help is needed (Coney). A counselled offence must have been committed by the person counselled, therefore there must be (I) contract between the parties, (ii) connection between the counselling and the offence, (iii) and the crime must be in the scope of authority or advice given, Calhaem: some arrangement is necessary, encouragement can be offering money.
Ostensibly, the basis for the accomplice’s liability is his mens rea, that is, his intention to do the acts of assistance and encouragement that must be proved. Moloney provides that intention should have its common meaning i.e. the accomplice’s act must be voluntary, although Clarkson says this can be inferred from knowledge of all the circumstances. It is not however merely desire or motive which are both irrelevant, per Gamble. Recent case law is open to a variety of interpretations on the meaning of intention. Thus a variety of tests have been applied in response to various circumstances. Therefore the basis for a secondary party’s liability for acts committed without the agreement or intention of the accomplice is still ambiguous and ‘without a clear answer’.
Lord Goddard in Steane said that “there is room for more than one view as to the intent of the prisoner (the accomplice) the jury should be directed that it is for the prosecution to prove the intent to the jury’s satisfaction and if, on review of the whole evidence, they either think that the intent did not exist or that they are left in doubt as to the intent, the prisoner is entitled to be acquitted”.
To be an accomplice, the accused must have knowledge (wilful blindness or subjective recklessness) of the facts (i.e. circumstances) essential to constitute the offence being committed. In Blakely and Sutton, the Queens Bench Division accepted recklessness as sufficient, that is, if it could be shown that (i) Accomplice pursues a course of conduct, giving no thought to the possibility of risk when there was a obvious risk (ii) recognising the risk, nonetheless did it advertently. Maxwell (affirming Bainbridge) held that a person could be convicted of aiding and abetting without prior knowledge of the actual crime provided he contemplated the commission of one of a limited number of crimes by the principal and intentionally lent his assistance to the commission. Knowledge or recklessness as to a victim’s consent to a sexual assault is enough liability of the principle, per Sexual Offences Act 1956 s1 (2)(b). If the accomplice is reckless as to the victim’s consent then he is also guilty. Gardiner and Satnam and Kewal, S agreed that a ‘couldn’t care less’ attitude is no defence, and where the intention of the principle can include recklessness, then the accomplice’s mens rea can be fulfilled by recklessness too. This is really asking the wrong question, as surely the intention of the principle is irrelevant. The real question in any case should be did the accomplice positively intend to do the act and was he aware that this action would assist the commission of the offence? His contemplation of the victim’s consent is relevant only for this second stage and here the question is, was he aware the principal intended to assault the victim whether or not she consented; whether he thought that she did or not is irrelevant. The principal is guilty of the offence if he is reckless as to the victim’s consent, the only awareness the accomplice needs is of the principal’s recklessness, not whether the victim consented or not.
