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Persons who are guilty of criminal offences will be either principals or secondary
offenders. The principal offender (P) is the person most immediately responsible for
the occurrence of the actus reus of the crime. For instance if P should kill V by
shooting V with an intention to kill or cause serious bodily harm, then P will commit
murder as a principal offender. Suppose P killed V with a gun supplied by D and was
driven to the place where V was killed by E. It might well turn out that D and E too
are guilty of murder should there be proof that they assisted or encouraged with
requisite mens rea the killing of V by P. They will be fully liable for the crime P has
perpetrated as secondary offenders, aka, accomplices.

Complicity: a derivative form of liability.

The classic phrase covering complicit liability is that the accomplice, with the
relevant mens rea, must aid, abet, council, or procure the principal’s offence.
(statutory incarnation in the 1861 Act)

Though the phrase is to be found in a statute, the meaning of that phrase is to be

found in judicial decisions. Complicity in substance is a common law doctrine.

Most complicity involves either acts of assistance or encouragement. Things done

by D the accomplice which encourages or assists P in commission of the criminal
offence. (Only a thin slither are covered by the notion of procurement. For practical
purposes, assistance or encouragement occupies the field)

Complicity is a derivative form of liability. So D must assist or encourage, at time T.

And there may be a considerable gap between time T, and time T1 when P commits
the act. As the accomplice’s guilt is derived from the offence of the principal
offender, it is in non-existent as such till P commits the offence. So D will not be
liable till the criminal offence is carried out at T1.

P’s guilt is specific to the time and place of commission (T1). And the same applies
for D. Wherever his act of assistance takes place, the crime itself D participated in
relates to the time and place of P’s offence. This can have important consequences
for asserting jurisdiction.

Robert Millar (contractors) [1970] 2QB 54

D is the manager of a fleet of lorries in Scotland. P the driver is anxious to make the
trip into England to deliver a consignment. D is unsure about allowing this because
he is aware that there are mechanical problems with this specific lorry that could
make it dangerous to drive if the problems kick in. But in the end, with full
knowledge of the facts, he relents. In Yorkshire, the worst happens. There is a fatal
accident which is attributable to the condition of the vehicle and P is guilty of the
offence of causing death by dangerous driving. That offence of course occurs in

D seeks to defend himself on the basis that everything he did took place in
Scotland. The argument fails because the crime in question is ‘an English crime’ and
D’s liability derives from that offence.

As they’re both guilty of the same offence, English law allows a conviction on the
basis that D must have either been a principal offender. Or if he was not, he must
have been an accomplice.

Occasionally, you may know a crime was committed and you know D and P have to
be responsible for the killing. You know one of them had to have done it but you’re
not sure which one. English law allows a conviction on the alternative basis that on
this evidence, D either assisted or encourage this crime or he actually carried out
this crime. Then the person can be convicted.

Gianetto [1997] 1 Cr App R

D makes contact with P to kill V, D’s wife, for money. V is shot. There is evidence
that P himself might have faltered at the final hurdle and backed down. Evidence is
unclear but if he didn’t do it, then it can only have been D that pulled the trigger.
There is no other hypothesis and on that basis, Dis convicted for murder.

It underscores the point that the accomplice is fully liable. Remember, complicity is
derivative. Derived from what though?

The default position must be that P must carry out the offence for which D is an

If P hasn’t committed the offence, then there’s no foundation for which D’s guilt for
that offence can be derived. That’s the logical position.

So if you counsel murder, but for some reason P commits manslaughter. It should
follow that though it’s no credit to D, D too must be guilty of manslaughter because
his guilt is derived from the offence of P. It is certainly the logic of the position
however, in interpretation, the courts have relaxed the requirements that P must
carry out the full offence.

Start with the minimum core condition for a finding of complicity. Minimum
condition must always be the actus reus of the offence perpetrated by P.

A well-known example of an obvious point is

Thornton v Mitchell [1940] 1 All ER 339

The charge is against P who is the driver of a double decker bus. D is the conductor
of this bus. Because of the way the vehicle is constructed, there is a large blind spot
when the bus is being reversed. And so, while reversing, P was dependent on the
directions given by D the conductor.

Because of the carelessness of the conductor, unfortunately a pedestrian, V, is run

over by the bus. On the basis of this, both P and D are charged with the offence of
careless driving.

P is the driver of the bus. Careless driving clearly requires an act of driving. The
offence in a question is clearly a conduct offence. The actus reus requires careless
driving; that which falls below the standard of an ordinary prudent driver.

There is no actus reus in this case however. The driving of the vehicle is perfectly
acceptable on the part of P. He couldn’t see for himself and it was perfectly
reasonable for him to rely on the instructions of D. That’s a bonus for D because
without any careless driving, there is no offence for D to be an accomplice to.

So thornton stands for the proposition that at least an actus reus is required.

Should we sometimes be content with just the actus reus though? Can we dilute the
orthodoxy and say if we’ve got the actus reus of an offence (say a death, which is
clearly unlawful,) and say that provided we have an actus reus, we can deal with
each individual with regards to this death based on his own mens rea.



If D had the mens rea for murder, he can be convicted of murder (of complicity for
murder as it were) and if P had diminished responsibility for some reason, he can be
convicted of manslaughter.

Richards [1974] QB 776. (Clinging to the pure doctrine is a bit unfair as to justice
meted out)

D wants her husband beaten up. She prevails upon 2 men to carry out her wishes.
She essentially says ‘I want him beaten up sufficiently to put him in hospital for a
long time’.

So she has the mens rea for causing GBH with intent to cause GBH. P1 and P2 get
there, and seriously hurt V. So you’ve got your GBH.
Conviction under s20. (inflicting GBH recklessly. Under cases for this offence, all you
need is foresight you will cause some bodily harm. It’s a much lesser offence than

So the jury brings a s20 charge against Ps but a s18 conviction against D because
they say she’s got what she wanted. She appeals successfully her conviction for
s18. The CA with some reluctance quashed the conviction and as they put it, ‘the
guilt of the accomplice can rise no higher than the guilt of the principal’.

*Howe [1987] AC 417 (important. Read)

There, the then Lord Chancellor went out of his way to scrutinise the decision in
Richards and to criticise it. For him, it would be enough. He effectively says the
actus reus of the offence should suffice as the starting point for assessing the
respective guilt of the parties. He was saying you can be convicted for an offence
greater than the principal provided one’s mens rea warranted that conviction.

In its logic, the Richards decision is right but in practical terms, it does seem that
there’s a compelling case to water down the orthodoxy to get the right result.

The need to do that will be even more compelling where the principal offender has a
complete defence for the crime and it may well be that the accomplice is
responsible for procuring the actus reus and indeed providing the where and all for
the defence the principal has.



Example of this is the pre-2003 Act case

Cogan [1976] 2 QB 217.

Replay of Morgan on its facts where D the husband, brings P home. Persuades him
apparently that V the wife will consent to sex even though she will go through the
motions of rejection.

P was acquitted of rape on the basis that at the time any belief, reasonable or
otherwise, with the consent of the victim was incompatible with the requirement of
having non-consensual intercourse (which was the law at the time) so the principal
escapes but the husband is convicted.

So there is no crime of rape itself but as CA said when they reviewed and affirmed
this conviction, they said it’s not really a paradox. There is no doubt the woman had
been raped. The offence couldn’t be attributed to any principal but that she’d be
induced to forced intercourse was undoubted.

So this seems to make a compelling case for the theory that the actus reus should
be enough and you assess liability according to individual positions.
What CA did unfortunately was confirm the husband’s conviction for rape as a
principal offender. That just doesn’t make sense. At the time, husbands couldn’t
rape their wives because of the marital immunity. They could certainly be
accomplices to the rape of their wives by other men but if you charged them as
principals, you went straight into the marital immunity. Further, the husband
himself did not have penile contact with his wife. To perpetrate the crime of rape
requires on the part of the principal offender an act of penetration. Though in terms
of substantive justice, the result may seem right, the conceptual framework is

Same sort of problem again in

DPP v K and B [1997] 1 Cr App R 36

Again, it’s a rape case. There is no doubt that V had been made to endure non-
consensual intercourse. The persons who planned the rape (D’s; the accomplices)
were two teenage girls. They had a grudge against V and they were going to pay off
that grudge by having V raped. So they prevail upon P to do the act but, there is
this highly difficult technical problem.

P himself was never actually found but there was evidence that P might have been
under the age of 13. As the law stood then, there was a conclusive presumption
that a boy under the age of 13 was incapable of rape.

There is recognition that the girls themselves could not be convicted of rape as
principals but the court recognised they were accomplices to the rape of P. That
decision together with dicta in Millward [1994] Crim LR 527 shows that English law
is now ready to accept that the predicate for complicity liability is not necessarily
the full criminal offence but the actus reus of that offence. And the matter is then
resolved according to the personal position of the defendants in the case.

What is the legal position if the accomplice has second thoughts between T and T1?
And ideally, he’d prefer, as things stand now, that the principal offence is not
perpetrated. On the basis of pure logic, any change of heart on the part of the
accomplice is irrelevant.


So that’s the logic and again, it would be unsatisfactory to allow that logic to prevail
without mediating it in some way because of course we want accomplices, who are
frequently very peripheral players, to give evidence about intended offences or
failing that, to do what they can to prevent the offence being carried out should
they have a change of heart.
So it is in the public interest that a carrot be offered to such people. To some
extent, the law does this. It encourages effective withdrawal.

If one’s participation is limited to agreeing that the offence be carried out by P, all
that can be proved against D is that he agreed that P should carry out the principal
offence then D can withdraw from that agreement if he clearly countermands that
agreement to each of the parties. There must be an unequivocal renunciation of the
project on his part.

It is probably enough that in addition to that (or failing that,) going to the police and
giving a full account of what has been planned is also an effective withdrawal on the
part of D.

If D has gone beyond that and there is evidence he consistently encouraged P to

commit the offence, then it seems the position is that he must make great efforts
(not necessarily successful efforts but bona fide efforts) to dissuade P from carrying
out the offence.

If he’s actually assisted or intends to assist the offence (e.g. by supplying a weapon,
map of a building, key to a safe); if he’s given material assistance, he must either
do what he can to undermine (render nugatory) his assistance and/or, go to the
police prior to the offence and give a complete account of what is intended.

Grundy [1977] Crim LR 543 - G gave information to E and H to help them commit a
burglary. G claimed to have thereafter tried to persuade E and H not to commit the
offence. The trial judge withdrew that issue from the jury.

Held, allowing G's appeal, that the judge was wrong in withdrawing G's only defence
from the jury.

Whitefield (1984) 79 Cr App R 36. - W agreed with others to burgle the flat next
door to his, breaking in by way of his flat. W subsequently changed his mind and,
having informed the others, took no part in the subsequent burglary. W was
charged with burglary with the others. The trial judge ruled that there was
insufficient evidence of withdrawal on W's part to afford a defence. Consequently W
changed his plea to guilty.

Held, allowing W's appeal, that there was evidence showing that W had served
unequivocal notice on the others of withdrawing his aid and assistance. The trial
judge had erred in law in ruling otherwise
Becarra (1976) 62 Cr App R 212 - After a crime has been committed and before a
prior abandonment of the common enterprise may be found by the jury, there must
be, in absence of exceptional circumstances, something more than a mere mental
change of intention and physical change of place by those associates who wish to
dissociate themselves from the consequences attendant on their willing assistance
up to the actual commission of that crime. In order to break the chain of causation
and responsibility, there must, where practicable and reasonable, be a timely
communication of the intention to abandon the common purpose from those who
wish to dissociate themselves from the contemplated crime to those who desire to
continue in it. What is “timely communication” must be determined by the facts of
each case but where practicable and reasonable it ought to be such communication,
verbal or otherwise, that will 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 withdraw. The unlawful purpose of him who
continues alone is then his own and not one in common with those who are no
longer parties to it nor liable to its full and final consequence.

R v Mitchell, R v King [1999] Crim LR 496 - Held, that, while communication of

withdrawal from a joint enterprise was necessary to establish dissociation in the
case of an offence of premeditated violence, communication of withdrawal was not
required where the offence was one involving spontaneous violence and there was
evidence that the defendant had walked away from the attack. Accordingly, in a
case involving spontaneous violence, it was wrong to direct the jury on the test of
communication of withdrawal set down in R. v Whitehouse [1941] 1 W.W.R. 172,
since it might lead the jury to conclude that the defendant was still guilty if he had
not communicated his withdrawal to either the principal or a codefendant who had
also walked away from the attack.

O’Flaherty [2004]EWCA Crim 526 – held that (1) to disengage from an incident, a
person had to do enough to demonstrate that he or she was withdrawing from the
joint enterprise. That was a question of fact and degree for the jury which had to
take account of the nature of the assistance and encouragement already given and
how imminent the infliction of fatal injuries was. The jury should have been directed
that they had to be satisfied that the fatal injuries were sustained when the joint
enterprise was continuing, that the defendants were still acting within that joint
enterprise and that the acts which caused death were within the scope of that

Smith, “Withdrawal and Complicity” [2001] Crim LR 769.

‘Aid, abet, counsel and procure’.

Field divides in the main between assistance and encouragement. Either suffices
and it is not relevant in terms of liability and the status of the offender whether the
assistance and encouragement is given prior to the offence or whether it is given at
the time of commission.

What is not complicity are acts of assistance done after the commission of the
offence. So, providing a safe house or telling lies to the police when asked about the
whereabouts of the offender. That kind of ex post involvement in the offence is not
an act of complicity. (There are statutory offence of assisting the escape and
apprehension of offenders)


The first point to underscore is that the assistance need not be a causal factor in the
commission of the offence. The participation in an offence can and frequently does
fall well short of any causal impact on the offence as long as we can say that D in
carrying out the offence did derive some assistance from the complicity of D.

Bryce [2004] 2 Cr App R 35.

Involves P a drug dealer who is very angry with V. (principally because he thinks V
has been cheating him in the matter of supply and payment of drugs) he is
communicating his anger over many hours to D. D has no involvement in the P-V
dispute. (D just happens to be someone P is talking to and complaining about V).
Ultimately, D agrees to give him a ride on his motorbike to the caravan park where
both V and P live.

It’s a short ride of about 3-4 miles. So basically the lift is no big deal to P but D
drops him off at a caravan site and P goes to his caravan. There is then a period of
about 12 hours before P finally decides to visit V and kill him.

There is no doubt as to the guilt of P. D knew of the risk that V would be killed by P.
D too is convicted of murder on the basis that he assisted P.

It’s a project entirely of P’s. So D only has a vestige of impact with his involvement;
hardly a trace element. What one can see on the letter of the law is that it is
probably more convenient when P committed the murder that he’d been given a lift
to V’s location.

So any act of assistance will suffice for the actus reus element. Low threshold.

*NCB v Gamble [1959] 1 QB 11.

(Leading case on the mens rea element) shows how people can get tangled up in
crime even if they go about their normally lawful business and it’s no defence to

Defendant is the national coal board and becomes a party to the crime through its
employee. P, the driver of a lorry goes to the NCB premises to load his lorry with
coal. The lorry is then weighed and the weight is excessive. Both parties knew it
would be a criminal offence to drive this lorry onto the highway. What should have
happened was that the lorry should have been unloaded of its coal to the extent
necessary for compliance with road use regulations.

Driver says he’ll risk it as it’s a short trip. P says I’m going to drive this lorry out of
the depot and then it’s down to D to write out the receipt for P indicative of
payment for the coal that has been loaded. So that’s all the coal board does through
the instrumentality of D. Receipt was very important for P because unless he could
show it at the gate, the exit would remain barred to the lorry. But of course without
that receipt, P would not be able to commit the offence. Wouldn’t be able to access
the highway unless he had the receipt.

Coal board said that though we knew he would commit an offence, that was entirely
his decision. We lack any purpose to assist his offence. Our only objective is just as
a supplier of coal to get paid. We’re just going about our normal business.

Suffice to say, this was not accepted. So suppliers for kitchen knives for example
may be on the cusp for complicity if they suspect that lawful objects sold for lawful
commerce fi they suspect they may be used for unlawful purposes.

If the law of complicity is enforced to the letter, it would be very onerous. As

Glanville Williams said, this is made tolerable only by discretion in prosecution.


This theme continues with encouragement.

All that’s needed with encouragement is assent or acknowledgement (if intended as

encouragement and communicated to P prior to the offence))


(Contract to kill with a potential faltering at the end) Counsel proposed to CA that
surely it couldn’t be complicity to say to P who has just announced his intention to
kill his wife V, who is communicating his intention to D. You don’t become a murder
in your own right if all you do is to say “oh goody” (P says I’m going to kill v my wife
and D says oh goody) and CA says yes that’s enough if intended as encouragement
and communicated to the principal offender prior to the offence.

Again, it can be non-causal and extremely peripheral to the commission of the


The only limitation to this is that though the crime itself may have been committed
regardless of the encouragement, to be liable as a complicit, the crime committed
by P must come within ‘the scope of encouragement’ provided by D.
Calhaem [1985] QB 808 (Leading case on it)

D had hired P to murder her rival V. It was said that P, after having second thoughts,
had decided not to kill V but went to V’s house in order to act out a pretence so that
both D and V would think an attempt had been made to kill V. However, after V
screamed, P apparently went “berserk” and killed V by hitting her several times
with a hammer. On these facts, the CA upheld D’s conviction for counselling

Here, the CA is clear that ‘counsel’ has no implication of any causal connection
between the counselling and the principal offence and that there was complicit
liability if the person counselled was acting within the scope of his authority and not
by accident

The CA provided the following illustration for someone acting outside the scope of
encouragement: “For example, if the principal offender happened to be involved in
a football riot in the course of which he load about him with a weapon of some sort
and killed someone who, inknown to him, was the person whom he had been
counselled to kill, he would not, in our view, have been acting within the scope of
his authority; he would have been acting outside it, albeit what he had done was
what he had been counselled to do.”

So there’s that limitation. It must fall within the scope of the encouragement. The
most contested issue with encouragement is people who are just there at the time
of commission of the offence.

e.g. a group of people know there’s going to be a fight; they know P will kick off if
he meets V.

What is the position of persons who know what is afoot and their presence at the
scene of the crime is deliberate in a sense.

Allan [1965] 1 QB 130

Fight on a Sunday afternoon in Scunthorpe. There seems to be a pre-arranged fight

between a group of Irish on the one hand and a group of Somalis on the other. D is
Irish and not in the fighting group. He’s just watching the fight. He does say if things
were going badly he would have gotten involved. But he was happy to say nothing
and just sit it out because it was going fine.

CA said that mere presence is never enough. And you cannot draw an inference of
encouragement merely from presence.

Here the court as a matter of principle was saying we can’t just round up all the
usual suspects must be some cogent presence of involvement in the offence before
you convict.
The limit of the mere presence doctrine was severely tested

Clarkson [1971] 3 All ER 344

British soldiers stationed in Germany. Within the jurisdiction of martial law of

England and Wales. So dealing with a court martial and an appeal of it.

What happened here is that V, a German woman, is taken onto the barracks site,
dragged into a barracks room and serially raped by a succession of soldiers. Their
guilt is obvious.

The contentious issue in this case is another group of soldiers, not in any sense
associated with the rapist group as such, they here the noise and the screams from
the barracks and they enter the room and watch the rapes. On that basis, at court
martial, they are convicted of rape. They make the argument based on cases like
Allan that the court has never inferred encouragement from mere presence.

Court Martial appeal court quashed the conviction because of the terms used by the
officer presiding over the court martial. He more or less said presence is enough in
a case like this without further elaboration. So reluctantly, the convictions were

Of interest in the case that the court said that they had no doubt t if the matter had
been properly put by the presiding officer, convictions could have been sustained
against these men.

Whereas presence shouldn’t be conflated with encouragement, there were on

certain facts occasions where presence was intended as encouragement and
communicated encouragement. Where the presence is a form of solidarity as such
with the offenders.

(presence may well encourage and communicate encouragement and if it falls

within that category, it is enough for complicity for the offence)

Certainly the case where the person is a member of a paying audience which is
convened for some form of illegal performance.

Leading case

Wilcox v Jeffrey [1951] 1 All ER 464

In those days, it was a criminal offence for foreign musicians to perform for
payment in the UK without the prior permission of the home office.

What P the promoter did was invite a famous jazz musician, Coleman Hawkins, to
put on a concert. No HO permission. D is a proprietor of a jazz magazine and comes
to the concert as a paying member of the audience but he knows the circumstantial
details of the offence and thus has the mens rea.
Simply to be a member of the audience is sufficient encouragement. The argument
being no audience implies no performance so symbiotic relation. So members of the
audience, provided they have mens rea and known circumstantial evidence are
parties to the offence.

Brings home the irrelevance of causation to complicity.

Mere presence is also enough if you have some supervisory function over P where
the exercise of your authority would have prevented the commission of your
offence (or arguably would have)

Tuck v Robson [1970] 1 All ER 1171

A landlord allows the customers to drink after closing time. Because of a quirk of the
legislation, only the customers perpetrate the offence of unlicensed drinking. His
failure to clear the premises constituted encouragement of the customer’s offence.

The same supervisory function has been extended to car owners.

Webster [2006] EWCA Crim 415

If you own a car and lawfully allow P to drive it. Then you are as the owner, obliged
to supervise his driving. So if he drives dangerously and indeed the owner just sits
there but doesn’t correct the situation, that’ll make the owner a participant as an
accomplice in the driving offence. (note the offence here was death by dangerous
driving and in this particular case, CA said D had to foresee P would drive

Another example for the extreme breadth for complicity as a form of conduct.


Finally, that form of complicit conduct covered by the concept of procurement.

*A-G’s Reference (No 1 of 1975) [1975] 2 All ER 684

(Decided by lCJ at the time); here, P is a driver. D surreptitiously (‘acting with or

marked by stealth’) laces P’s drink with alcohol. As a consequence, when P is
driving home after this meeting with D, P is stopped and found to be over the limit.

No act of assistance or encouragement as that required a degree of encouragement

on the part of D or P. so that form of complicity was not in play. What was in play
was procuring something.

And as understood by the court, a procuration of itself involved (was necessary and
sufficient) some act on the part of D that was a causal factor in the commission of
P’s offence. That it was the one form of complicity that does require a causal link
between what D did and what P did by a way of offence. (so essentially,
procurement seems to entail causation but not consensus)


Tyrell [1894] 1 QB 710

Girl under the age of sexual competence (16). According to evidence, it is the girl
that instigates and encourages the offence upon her by P. No doubt about P’s guilt
but is the girl an accomplice to unlawful sexual intercourse.

The court declined to convict her as an accomplice saying it would conflict with the
policy to protect underage girls to make them complicit in sexual offences
perpetrated against them.

The doctrine is narrow in that it only applies where an offence is created to protect
a defined specific class. (Such as underage girls here or certain cases involving

Complicity and Mens Rea

Mens Rea of accomplice

Common thread running through it is that some mens rea is necessary. Statute
makes no reference to it but it’s a common law doctrine and this is an idea under
common law.

A common thread is that the accomplice must always intend the acts that
constitute assistance, encouragement, or procuration.

The difficulty arises as not only must the accomplice intend his own conduct. But,
his criminal state of mind must encompass the conduct and state of mind of the

To start off, we can always say tqhat some mens rea is required, even if the
principal offence is a statutory crime of strict liability. (where the principal can
commit the offence even blamelessly.)

Even where there is such a crime that is completely strict or has strict elements to
it, the accomplice, D, must be aware of the sufficiency of the circumstances to
inform him that the conduct of P is likely to contravene the criminal law.


Callow v Tillstone (1900) 83 LT 411

Butcher prosecuted for selling unsound meat. All that was required was the
condition of the meat. P was unaware of the condition but it’s a strict liability
offence. Also charged as the butcher’s accomplice was D, the veterinary surgeon,
who certified the meat as sound.

It was found that inspection of the meat was negligent. Nonetheless, he was
unaware that he had certified as sound meat that was unsound. He should have
known it but didn’t and on the basis of his constructive knowledge, the prosecution
argues for conviction and given at trial.

Conviction quashed as accomplice must have actual knowledge on a sufficiency of

circumstances that makes for an offence. (so some mens rea required

Distinction has to be drawn between offences which require either intent or

recklessness and ‘aggravating features’ of strict liability. For complicit liability with
these offences of ‘constructive liability’, D need only have mens rea with regards to
the ‘basic offence’

something something and consequential something that has to be proved on a

strict basis.

Robert Miller (contractors) [1970] 2 QB 54

The offence of dangerous driving. To commit the offence, the driver must drive well
below the standard of an ordinary competent motorist. For the principal, it’s just a
question of that factual evaluation.

For an accomplice, the accomplice must be aware (in this case it was the condition
of the vehicle) of the facts which constitute danger. And here, D, the depot
manager, was aware of those facts.

In this case, there was a fatal accident in England, and the driver is convicted of the
aggravated form of the offence, causing death by dangerous driving. All that is
required for that aggravating feature is that death was caused. There need be no
further culpability with regard to the death. The culpability attaches only to the
dangerous driving.

For this consequence element, it attaches equally to the accomplice provided he is

aware of the facts which constitute danger.

Mahmood [1995] RTR 48

Another example attaching to the offence of constructive manslaughter. Again

there, the element of death is a strict element.
Moving on from offence where it’s completely strict or has an element of strict




Situations where P must have mens rea in regards to his conduct elements and any
consequential elements specified in the offence.

e.g. wounding with an intent to cause a wound. Must be a mens rea element as to
the consequence of wounding.

In these cases, the accomplice must be aware of the essential elements of the
circumstances of the principal’s offence. And, classically, he must intend along with
the principal the relevant consequences that arise from the principal’s conduct.

That will be most easily proved where the principal shares a community or purpose
with his accomplice. And, there will be many such straightforward cases where
‘there may be a joint enterprise’ between the two of them.

E.g. D and P agree to murder V. D will provide weapon and P will use weapon to kill
V. Shared mentality of purpose and D’s mens rea stretches to consequences of P’s
act without trouble.

There may not be a joint community of purpose

NCB v Gamble [1959] 1 QB 11

Famous e.g. used by Justice Devlin which he puts forward as a case of complicit
liability in murder without joint community of purpose.

D has a weapon. A gun. He is prepared to sell that gun to P. His only interest in
doing so is to make money. He is “completely indifferent whether V lives or dies”.
Not part of any plot to kill V but is prepared to facilitate the death of V to make a

On Devlin’s view, D is an accomplice. The better view in an ideal world would be

that all accomplices for offences requiring proof of mens rea in relation to the
conduct element of the crime and for any consequences specified in the definition
of the crime would be for them to have a join community of purpose. (JE basically)

There is an argument that as long as D performs an act of assistance, aware that

the assistance will be used by P to carry out the crime, then D has an oblique
(Woolin style) intent in terms of the consequences brought about by P. He knows
that this will happen and that his act will facilitate this event and that is all that is
required for the intention of D with regards to the consequences of P’s conduct.
There needn’t be a narrow intention. It’s sufficient that there’s a broader oblique or
indirect intention and that suffices for complicity as regards the conduct.

Strong case in favour of that view

Lynch v DPP [1975] AC 653 at 678

D was a cab driver in the North of Ireland. His cab is commandeered by members of
a terrorist group. He has no choice in the matter. The court accepted that had he
defied the terrorist, he most likely would have been shot. The terrorists get into the
back of the vehicle, D is driving it and he is fully aware that he is driving them to a
place where he will kill V and others. So he’s a ‘conscript’ to a project which ideally
he wants no part of. But while driving, he is fully aware of the facts and the
consequences. On that basis, the cab driver too is guilty of murder.

As it is, HL allowed a defence of duress and he was cleared for his conviction on that
basis. When you study duress, you will see that the lynch decision has been
reversed. Duress is not available to a charge or murder both as principal or

But lynch makes a strong point as to there not needing to be a community of


Case that goes the other way

Gillick v West Norfolk Health Authority [1986] AC 112

Case where criminal law had to be reviewed for purposes of JR. Here, Mrs Gillick
takes offence to doctor’s providing contraception to girls under the ages of 16. Mrs
Gillick’s argument is that the doctor’s would be facilitating the offences of the
people who had sex with these girls. (On the assumption that a girl provided with
contraception is far more likely to consent to sexual intercourse than would
otherwise be the case)

Case fails on this point before HL and it can be argued that it fails because of a lack
of community of purpose between the Doctor’s and the principals who have sex
with the underage girls. (Sullivan thinks the better explanation here is a defence of
medical necessity. The judgment is not very clear though)

(s73 of sexual offence act 2003 would be a good defence)

An eg of lack of community purpose not being something provided, D is aware the

offence will be carried out with the assistance provided by D. (language used in ncb
and lynch)
Unfortunately, there are dicta (whether they amount to decisions is a contentious
matter). Most notably, in blakely, reardon and Bryce

That as far as consequences are concerned, provided D intends his act of

assistance, it suffices that he perceives a risk that the offence will be carried out
with the assistance he has provided.

This is a highly significant watering down and an extension of the mens rea.

Arguments between … is whether intent required as to the consequences can

encompass oblique intent as well as ordinary intent. However, these 3 further cases
extend, in dicta, the culpability for intent to include mere recklessness as well as

And the dicta is sufficiently common and repeated that they have to be taken
seriously and are likely to represent the law at this point.

Finally, on the mens rea for ordinary complicity, turn to circumstances of Ps offence
where mens rea is required on the part of p with respect to those circumstances



Argument here is what D must know of the material circumstances of P’s offence.

At one time, prior to Bainbridge, the law was perhaps excessively lenient to
accomplices in the sense that D had to be aware not merely of the kind of crime
that P had in mind to commit but further to that, he had to be aware of the
circumstantial details of the crime. Had to be aware of such things as the victim or
the place of the burglary to be sufficiently involved in Ps project to become an
accomplice to it.

That is no longer the case

*Bainbridge [1960] 1 QB 129

D sells P oxygen cutting equipment, used to cut through metal, aware that P will use
the equipment when he breaks into banks and uses the equipment gain access
to the content of safes. That effectively is all that D knows. He knows they’re not
going to be used for legitimate commerce by P.

The defence argument is that D must know of the target victim. (there was some
authority for it) or at least more generally, the specifics of the offence (e.g. location
and timing)

The appellate court confirms the conviction on the basis that all that is required is
sufficient information about the circumstances for D to know the type of offence
that P would commit. On that basis, D had sufficient knowledge of the

While it seems to be a sensible decision, it does mean great vistas of liability are
opened up. It means each time this cutting equipment is used by P, D will be an
accomplice for an offence. So it means there may be a huge number of offences D
will be liable for.

Sometimes, assistance will be given and D will be aware that P’s purpose is a
criminal one but at the time he gives the assistance, he may lack sufficient detail,
(as was present in Bainbridge), to pin-point the type of offence P has in mind to

So what is the law there? D has passed a moral threshold in kind but doesn’t have a
clear picture as to what D will do with the assistance given.

*DPP for NI v Maxwell [1978] 3 All ER 1140

D is driving a taxi and members of a terrorist group commandeer it. He is given the
address of a pub. These men are of the protestant arm of the terrorist groups and
he knows he’s going to a pub frequented by republicans (the other side). He knows
these men are in operational mood and something is going to happen then but not
sure what it’s going to be.

He concedes he knows it’s going to be criminal. He thought first of all, it might be a

robbery to get funds for their organisation, he thought it might be a terrorist
operation in the full sense but planting an explosive with sufficient warning time to
clear the pub (sometimes done. Deliberately just have an explosion just to
announce their presence), or he thought it might be to plant an explosive device
with the intent to take the life of persons in the pub.

In fact, it was the last kind of operation. Full on operation to kill and maim that was
in the minds of the principal offenders. Fortunately, due to the bravery of the
landlord, the explosive device is taken out of the pub.

Was D the driver, a party to this offence? That he thinks along a spectrum involving
something relatively minor to something major. It was held by HL that he was a
party to that crime. The formulation employed, (Lord Scarman is insisting here he’s
not watering down the requirements for knowledge and he accepts Bainbridge but
is simply interpreting the notion of knowledge in these different circumstances).
One will have the requisite knowledge if one passes first the threshold of knowing
that an offence will be perpetrated. Thereafter, you will be party to any offence that
D contemplates that P might commit. As we know, he contemplated an offence that
was actually committed and on that basis, he was a party to it.
One solid ground in Maxwell is that there must be true knowledge, not merely
recklessness, as to the criminality of the conduct. D must be aware that P intends
something criminal.

There are dicta in Carter and Webster which indicate that merely suspecting that P
might do something criminal will suffice. We can truly say this is dicta as there
would have been knowledge on the facts of the case itself and one hopes that the
knowledge requirement is where the law will go.

Joint Enterprise.

Joint criminal enterprises are common. D and P agree to burgle V’s house. When
they enter V’s house with intent to steal, they each will commit burglary as principal
offenders. Suppose that only P enters the house: D’s role is to hold the ladder used
to make an entry through an upstairs window. In those circumstances P will be the
principal offender and D his accomplice. All this should now be familiar; the
existence of a joint criminal enterprise shared by D and P does not so far have any
implications for the application of the legal principles relating to principals and

But suppose that while D was waiting outside V’s house ready to hold the ladder for
P’s descent, P is disturbed by V in the course of the burglary. Rather than leave a
witness to his crime, P kills V with intent to kill V. D and P did not discuss what
should be done if V should awake during the burglary. Will D too be liable for V’s
murder? Under the extension of secondary liability created by the doctrine of joint
enterprise D may well be liable for V’s murder.

He will be an accomplice to the murder if he foresaw the risk that P would

intentionally, if confronted by V, would attack him, either with intent to kill or to
cause GBH.

This is the upshot of the JE doctrine. Unless, the killing was fundamentally different
from anything that D contemplated, he can be liable.

So it may be possible for D to foresee that P will act with intent to kill or to cause
GBH but, what actually happens is so fundamentally different from what D had in
mind that the court will say it falls outside the scope of JE.

JE it seems does require an initial community of purpose to commit ‘Crime A’ (in the
running example, the burglary). At that stage, the normal principles of complicity
apply. But when we turn to the ‘Collateral offence’, ‘Crime B’ (the murder here),
then as far as the murder is concerned, there need be no acts of assistance or
encouragement on the part of D for that crime. And indeed, D will still be liable,
even if he has specifically discountenanced the commission of the crime on the part
of P.
e.g. it may be D is aware of P’s propensity to violence and he may say and mean to
tell P if confronted, just run away or something. That won’t help D, provided he
foresees a risk of the collateral offence, Crime B, arising out of the circumstances of
the commission of Crime A.

So the liability for this collateral further offence is clearly an extension of complicity.
D is still a secondary offender but his secondary offence cannot be explained on the
basis of the orthodox doctrine as indeed the further offence may be something D
doesn’t want P to carry out.

It’s a controversial doctrine as there’s no convincing conceptual explanation for how

complicity can reach this far. Because a standard analysis does not implicate D for
the commission of crime B unless there are acts of assistance or encouragement for
that crime.

Smith and Hogan insist that JE is a natural part of the law of complicity. The
argument is that by participating (as an accomplice) in Crime A, which is part of a
JE, to commit crime A; One tacitly assists or encourages any other crime which flows
out of the commission of Crime A.

So what you’ve done in Crime A flows over to the commission of Crime B. Sir John
Smith wasn’t convinced by his own argument but unless you adopt this argument,
he feels the law of complicity just wouldn’t make sense.

The problem with this argument is that there is complicity in crime B even though it
is expressly discountenanced by D.

However, Simister still goes on to justify the conviction for the collateral offence on
the basis that the JE can do the heavy lifting. That it’s more than mere complicity in
Crime A, it’s a JE. A ‘criminal confederacy’ to bring about crime A and the argument
is that one should put yourself in the moral posture of ‘in for a penny, in for a
pound’ and that once you’re in for crime A, anything following from it should be put
to you as well.

These matters were put to HL in

*Rahman [2008] UKHL 45

Lord Bingham saw the force of the arguments very strongly. The convictions for the
collateral offence cannot be defended on the basis of the normal principles of
complicity. Once the JE of crime A is established, the liability as to crime B is based
on mere foresight of the risk that P might carry out the crime with requisite mens
rea for the crime.

Once there’s a JE for A, D is on the hook for B provided he foresees the risk that P
might carry out crime B with the necessary mens rea for that crime.
Lord Bingham said, and saw the force, that there’s a problem here, and that he
recognised it, but he said the doctrine is based on practicality. (paraphrased) He
also averted to the fact that thousands of people have been convicted on the basis
of it and one trembled at the notion that all those wrongful convictions would have
to be unwound. He said it was a robust policy justified by making an effective
response, particularly to multi-party violence.

The most controversial cases are where people are convicted for murder.

A non-untypical situation will involve a group of young men who can be broadly
divided into teams, Team A and Team B. These youths are typically associated with
a particular area. They will meet on neutral territory (by accident or otherwise), or
one group will go into the territory of another, and it will ‘kick off’. They will ‘jostle’,
some will start fighting and some will be in the background. And a knife will typically
be produced by someone unknown on Team A, causing the death of someone on
Team B.

So we have V a member of Team B, and he’s dead. The way/force with which the
knife was used is highly indicative of a manner to kill or cause GBH.

The problem is that there’ll be no cogent evidence at all as to who it is on team A

who used the knife on V. The murder weapon is frequently disposed of, clothes will
have been washed, and evidence is often not readily forthcoming both from
members of Team A and team B.

This is where JE is at its most creative. Sticking with Team A, if it can be proved that
amongst the team members of A was a JE to inflict some violence, not necessarily
serious violence, on members of Team B. e.g. a JE to assault, which would be
relatively easily proved on such facts, all members of Team A can be guilty of
murder (and there are multiple convictions of murder in these scenarios), on the
basis that they were either themselves the killer or foresaw the risk that a member
of Team A would kill or seriously hurt a team B member acting with intent to kill or
to cause GBH.

It is evident how this radically reduces the culpability for a murder verdict. All you
have to do (it is readily apparent that persons who were just there, and under
considerable peer pressure not to run away once violence starts, and not to say
anything incriminating about anyone else, are incarcerated for long periods of this
time where the culpability of murder is reduced down to the risk that someone else
will act with the intent to kill or cause GBH provided you participate in such a scrap.
And there are 100s of people convicted of murder in such a way. The criticism of JE
is that these convictions are founded on principles which go beyond standard
complicity. It is sufficient you have a JE to commit Crime A, a standard fight, and
foresee the risk of it getting out of hand as it were and someone getting killed.)
*Powell and English [1999] AC 1

Effectively adds nothing to what Sullivan said in conceptual terms but must be read.

The first appeal involved D and P who go to V’s house to conduct a drug sale. So
that’s Crime A, a JE to purchase drugs from V. D is aware that when they start
arguing about price of drugs etc with V, he is aware of the risk that P might turn
violent and cause at the very least, GBH on V with intent to cause GBH. And that
indeed is what happens in the case. On that basis, both D and P were guilty of the
collateral murder offence, even though there was no evidence that D assisted or
encouraged the murder of V by P it’s enough he foresaw the risk of V’s conduct with

The other appeal in this case involved another different pair of D and P. D and P
have a JE to beat up a policeman trying to arrest them using wooden staves. It was
accepted that D was prepared for P to use serious violence. P himself was the stave
wielder and D fully went along with the use of the stave. So if the policeman had
died as a consequence of being beaten with the staves, there’d be a straightforward
conviction of D as an accomplice.

What actually happened in the case is that the policeman is being beaten with the
wooden staves. D becomes daunted by the difficulty of subduing him and runs off.
(but not in circumstances consisting withdrawal from the JE as it’s far too late for
that) and then, P suddenly produces a knife and uses the knife to kill V.

P of course is guilty of murder but is D liable? Sullivan thinks he did have the mens
rea as he was prepared for V to be seriously hurt by staves and why should a
change of weapon allow him off the hook under the JE enterprise? But it does. It was
said in the English appeal that the use of a knife was fundamentally different from
anything that D had contemplated. And as a consequence, he would not be
implicated in the murder. What constitutes a fundamental difference has proved
very contentious in the cases.

What variations brought about by P constitute a fundamental difference has been

litigated continuously up to CA. Suffice to say that what constitutes a fundamental
different between what D contemplated and what P did is a matter of fact for the
jury. It’s a jury question and the judge has to merely satisfy himself that a
reasonable jury has a hope of finding a fundamental different on this facts.

The heavy duty case is rahman

And the end of the story there is that JE as explained lives. It’s been with us too long
and whether you can conceptually explain it or not, it’s far too late to do away with
it. It is well established and very much part of the criminal law.
There have been developments since then.

There are dicta in rahman which do lend credence to the view that D must only
foresee the conduct of P not necessarily P’s state of mind. (said by Lord Brown and
others which can extend the doctrine further)

A,B,C,D [2010] EWCA Crim 1622.

CA corrected any tendency to use the Rahman decision in that way insisting that D
must not only contemplate the conduct of P but also, he must contemplate that P
will commit the crime with the mens rea for the crime. (certainly, this was the
position in Powell and English) So he must foresee that P will hurt V with intent to
hurt V.

Simister’s line on JE, which is to endorse it, he says that the ethical justification is
getting involved in organised criminal activity, a JE. His view is that if you get
involved in a JE, desiring only to commit Crime A, but if you know that there’s the
risk of Crime B or C etc occurring, you’re signed up for it in some sense and it’s not
ethically odd to say you’re signed up for it.

If you go with that thought, what is a genuine JE? Surely a community of purpose.

Put to it in the latest case

Gnango [2010] EWCA Crim 1691 (currently on the way to SC)

It is focusing on the first time for exactly what a JE is. It was taken for granted in
previous authorities.

D and P have a gunfight in some open ground (Newcross). The prosecution say this
was either a gunfight by pre-arrangement (met knowing they would have a
shootout) or, they met, became aware that each other was armed, and on the ‘a
nod is as good as a wink basis’, agreed on the spot to have a shootout.

What happens is, there is this gunfight, mutual fire is exchanged, the incident we
want is where when P aims at D, clearly intending to kill or cause GBH, and the
bullet misses and hits and kills V, an innocent passer-by. There is no doubt that P is
guilty of Vs murder on the transferred malice principle.

Even though P is brought in for police questioning, P simply disappears. (called

‘bandana-man’ in the case itself) The cart and horse is thrown at D. He is charged
with the murder of V. Recall, that D is the person shot at. D is found guilty as a
secondary party to Ps murder of V.

How did the trial judge decide this? He said that once there was an agreement to
use guns against one another, they both became guilty of the offence of an affray.
(statutory offence. An affray is a fight in public which would frighten a bystander of
ordinary fervours. So if people fight in public which frightens members of the public
in addition to other offences, they commit the crime of affray) What the judge says
is that there was a JE. The agreement to shoot at each other in public was an affray
which they jointly commit through their agreement to fight with guns. In committing
that offence in a JE with P on proof that D would contemplate the risk of P shooting
at him, but missing and killing someone else. Provided that D foresaw the risk that
their joint affray could incur that risk to the public. Then, under the JE doctrine, we
could find that D was guilty of a secondary party to Ps murder of V even though the
intended victim was D himself.

Again, this seems to open whole new vistas.

So in the Team A, Team B example, prosecution practice till now has been to focus
on Team A. If this decision stands, there’s joint enterprise to commit affray on the
part of both teams, and both teams will foresee the risk of things turning nasty and
serious injury being perpetrated.

So JE grows and flourishes.

Case comes to CA and they struggle with it. They eventually quash the conviction
on the basis that there was no common purpose to commit affray. They say that
there was a joint intent to commit affray. But say of this joint intent; the intent was
“coincident but not shared” it was “reciprocal but equal and opposite”. But an
agreement “to participate in mutually antagonistic conduct”. By that token, the JE
principle did not apply.

What has been certified for SC, and the evidence fell short of establishing this, what
of an agreement between D and P to shoot and be shot at. Here, CA cites some of
the old duelling cases inconclusively.

They say that this spontaneous agreement or agreement by pre-arrangement was

an agreement that one party would shoot the other aware that the other would do
the same. But, it was not an agreement ‘to shoot and be shot at’. Merely, an
agreement to ‘have it out’ with guns. Presumably one party hoping the other and
wouldn’t shoot him. So he only agreed to shoot D but not be shot at by D. This
seems odd.

So the line is the CA clearly tended to the view, and there is a good note on it by
David Omerod in the Feb CLR, that if there was an agreement between D and P, a
mutual agreement to shoot and be shot at, then that JE would a ‘real one’. And
then, foresight would suffice for the collateral crime. But according to the CA, the
agreement here fell short of that. It was merely an agreement to use guns to
constitute an affray but not an agreement to shoot and be shot at.