The Law Commission

PART 2

SHOULD THE DOCTRINE OF SECONDARY LIABILITY BE ABOLISHED?

INTRODUCTION

2.1      In Part 1,^[1] we referred to the common law doctrine of secondary liability. Under this doctrine, if D aids, abets, counsels or procures P to commit an offence and P goes on to commit (or attempt to commit) the offence, D is an accessory to and guilty of the offence (or the attempted offence) that P has committed.^[2] Accordingly, if P murders V with D's encouragement or assistance, D is guilty of murder and is subject to the mandatory life sentence for murder, just as P is.
2.2      D can aid, abet, counsel or procure P to commit an offence even if there is no agreement between P and D to commit it, for example if D, a trader, sells P an article knowing that P will use it to commit a burglary. Sometimes, however, D and P do agree to commit an offence ("the agreed offence")^[3] and subsequently embark on a joint venture to commit it. Provided that P commits only the agreed offence, cases of joint venture usually do not pose any particular problems. D is an accessory to the agreed offence because, having agreed with P to commit it, D has aided, abetted, counselled or procured P to commit it.^[4]
2.3      However, P may commit an offence ("a collateral offence") which is in addition to or instead of the agreed offence:

Example 2A

D and P agree to commit burglary. In the course of committing it, they are disturbed by the householder, V. Before embarking on the burglary, D, who knew that P was armed with a knife, had urged P to exercise restraint should V disturb them. However, when V disturbs them, P murders V by stabbing V.

The general rule is that D is an accessory to and guilty of a collateral offence if D foresees that P, as an incident of the joint enterprise, might commit the offence.^[5] If so, it matters not that D was opposed to the commission of the collateral offence. In example 2A, if D foresaw that P might murder V, D is an accessory to and guilty of murder.

THE PROPOSALS IN THE CP

2.4      In the CP, the Commission said that the nature of an accessory's liability is essentially inchoate:

However, the conclusion that an accessory's liability is, even in the present law, essentially inchoate in nature springs directly from analysis of the conduct that founds that liability in law. An accessory's legal fault is complete as soon as his act of assistance is done, and acts thereafter by the principal, in particular in committing or not committing the crime assisted, cannot therefore add to or detract from that fault. Moreover, it is not the present law, and it is logically impossible that it should become the law, that the accessory must cause the commission of the principal crime; and for that reason also the actual occurrence of the principal crime is not taken into account in assessing the accessory's culpability. Even under the present law, therefore, where the principal crime has to be committed before accessory liability can attach, the conditions for the liability of the accessory should be, indeed can only be, assessed at the time of, and in relation to, that act of assistance.^[6]

2.5      The Commission proposed that secondary liability for aiding, abetting, counselling or procuring the commission of an offence should be abolished and replaced by two statutory inchoate offences, one of encouraging crime and the other of assisting crime. Therefore, instead of being liable for the offence committed by P, D would be liable for encouraging or assisting its commission. Implicit in the Commission's proposal was a denial that the harm resulting from P's commission of the principal offence should have any legal significance in relation to D's liability.
2.6      However, the Commission canvassed the possibility of retaining the doctrine of joint venture whereby D may be convicted of a collateral offence committed by P in the course of a joint venture.^[7] In part, this was because the Commission believed that the ordinary principles underlying secondary liability did not apply in relation to collateral offences. The Commission thought that D, merely by entering into an agreement with P to commit the agreed offence, was not encouraging or assisting P to commit the collateral offence. The Commission, therefore, saw no inconsistency in recommending the abolition of secondary liability for aiding, abetting, counselling or procuring the commission of an offence while possibly retaining some form of accessorial liability for collateral offences committed in the course of a joint venture.^[8]

RESPONSES TO THE CP

2.7      Those respondents who provided an analysis of whether inchoate liability should supplant secondary liability focused on:

(1) forensic considerations,

(2) public acceptability,

(3) condemnation and labelling,

(4) the connection between D's conduct and the offence committed by P.

Forensic considerations

2.8      By virtue of section 8 of the Accessories and Abettors Act 1861, a person who is an accessory can be charged, indicted and punished as a principal offender. This means that the prosecution can obtain a conviction even if it cannot be proved whether the accused was a principal offender or an accessory provided that he or she must have been one or the other.^[9] For example, suppose that D1 and D2 are jointly charged with burglary. It is known that one of them entered the premises while the other kept watch. D1 and D2 can each be convicted of burglary despite the prosecution being unable to prove who entered the premises (the principal offender) and who kept watch (the accessory). ^[10]
2.9      This is of considerable assistance to the prosecution in cases where it is difficult or impossible to prove the precise role of the various parties. In addition, the prosecution does not have to specify in advance whether the allegation is that an accused was a principal offender or an accessory.^[11] In Mercer^[12] it was held that there is no violation of Article 6(3) of the European Convention on Human Rights and Fundamental Freedoms where the prosecution alleges that an accused is a party to an offence but cannot specify his or her precise role.^[13]
2.10      Some respondents^[14] felt that these forensic advantages would be jeopardised by adopting a scheme consisting solely of inchoate offences. They felt that such a scheme would adversely affect the law's ability to accurately attribute criminal liability in those cases where it is impossible to be sure who was the principal offender and who was the accessory:

Example 2B

D and P agree to murder V. V is held down and his throat is slit. V dies. The fingerprints of both D and P are on the knife. The prosecution cannot prove whether it was P or D who slit V's throat.

Under the current law, both D and P are guilty of murder. However, under the proposals in the CP, it would be impossible to convict either of murder because it cannot be proved who slit V's throat.

Public acceptability

2.11      Professor Sir John Smith said^[15] that the public attaches enormous importance to the consequences that result from a criminal act and that Parliament reacts accordingly. He provided this example:

Example 2C

D gives instructions to P, whom D believes to be a "contract killer" to kill D's partner, V.

Under the proposals in the CP, D would be guilty of the same offence, assisting murder, irrespective of whether P decided to kill V or instead to report D to the police.

2.12      Professor Smith doubted whether the public would consider that outcome to be acceptable. He said that society expects an offender to be convicted of and punished for offences that reflect not only his moral culpability but also the harm caused by his or her conduct.^[16] Thus, the maximum term of imprisonment for causing dangerous driving is two years^[17] but when death is caused the offence becomes causing death by dangerous driving and the maximum term of imprisonment increases to 14 years.^[18]
2.13      The Society of Public Teachers of Law^[19] agreed. In its view, in a case such as example 2C, should P go on to kill V, it would be unrealistic to attribute responsibility for V's death solely to P given that D would have played a prominent part in bringing about V's death.

Condemnation, culpability and labelling

2.14      There was criticism that the proposals in the CP would not adequately fulfil the condemnatory and labelling function of the law. In particular, they would not adequately connect an accused with the consequences of his or her offence. According to Professor K J M Smith:

In the context of complicity, it might be argued that by formally decoupling liability from the commission of the principal harm the complexion of the criminality changes, and along with it part of the justification for punishment. For rather than the existing mental culpability-harm axis of responsibility, criminality would rest substantially on mental culpability only; and, as with inchoate liability generally, there would arguably be a lowering of perceived punishment deserts, alongside a rise in expectations in relation to the appropriate level of mental culpability.^[20]

2.15      A specific criticism was that to de-couple an accessory's liability from the harmful consequences of the principal's conduct would be particularly anomalous where the culpability of the former exceeds that of the latter. Professor Sir John Smith provided the following example:

Example 2D

D, a gang leader, sends out his subordinate P to detonate a bomb. P does so without warning in a busy shopping centre. The explosion results in the deaths of 20 people.^[21]

2.16      Professor Sir John Smith said^[22] that, under the proposals in the CP, P would be liable for 20 murders but D merely for one offence of encouraging murder. The anomaly would be even more striking if D had compelled P to carry out the act by holding P's partner, Z, as a hostage and threatening to kill Z because duress is no defence to murder.^[23]
2.17      Sometimes, death is an unexpected and unforeseen consequence:

Example 2E

D encourages P to inflict grievous bodily harm on V. P does so. Normally V's injuries would not prove fatal. However, medical complications set in and V dies.

Under the current law, both D and P are guilty of murder. Under the proposals in the CP, P would be guilty of murder but D would be guilty only of encouraging P to cause grievous bodily harm with intent.

2.18      Professor Sir John Smith agreed that it is arguable that in example 1E neither D nor P should be held responsible for the unintended and unforeseen consequences. However, the proposals in the CP lead to a conclusion that he thought even less acceptable, namely that P is held responsible for those consequences whereas D, the more culpable party, is not held responsible.

The connection between D's conduct and P's offence

2.19      In the CP, the Commission said that D's liability for encouraging or assisting P to commit an offence should be inchoate because it was impossible to connect D to P's offence. Professor K J M Smith questioned this assertion:

… it has always been implied in the concept of complicity that an accessory's involvement … did make some difference to the outcome, and, as a consequence of this, accessories have been implicitly linked to the harm element in the principal offence. No other plausible explanation exists for complicity's tenacious, fundamental requirement of the commission of the principal offence. … . In sum then, under existing doctrine, the accessory's liability is derivative or parasitic of a principal offence and its harm content. Rather than relying solely on the accessory's mental culpability, unlike inchoate liability, complicity responsibility also implicitly draws on the attributable harm of the principal offence.^[24]

CONCLUSION

2.20      We acknowledge that it is possible to preserve some of the forensic benefits of the current law in a scheme consisting solely of inchoate offences. This could be achieved by a statutory provision stating that if the prosecution can prove that D must have been either the principal offender or the encourager/assister, D can be convicted of the inchoate offence.^[25]
2.21      However, such a provision would not meet the criticism that the proposals in the CP would not accurately label and condemn D for his or her conduct:

Example 2F

D gives P chocolates to give to V. V eats them and dies because they are poisoned. D knew the chocolates were poisoned and would kill anyone who ate them.

Under the proposals in the CP, D would be guilty of murder if P was unaware that the chocolates were poisoned because P would be an innocent agent and D would be considered to have perpetrated the offence as a principal offender. However, if P knew that the chocolates were poisoned, P would be guilty of murder but D would be guilty of assisting murder.

2.22      Example 2F illustrates why it would be wrong to abolish secondary liability. It cannot be right that D is guilty of murder if P is unaware that the chocolates are poisoned but only of assisting murder if P is aware that the chocolates are poisoned. D's conduct and state of mind are identical in each case. Further, whereas examples 2D and 2E might be thought to reveal problems with specific aspects of the law of murder that might be better resolved by reforming those aspects, the anomaly in example 2F is not the product of any defects in the law of murder.
2.23      We believe that if P commits an offence that it was D's intention P should commit,^[26] account should be taken of D's connection with the harm that results from P committing the offence. D's state of mind in intending that the offence should be committed connects D to the offence and the resulting harm in a morally significant way that can only be properly reflected by convicting D of the offence rather than encouraging or assisting the commission of the offence. In as much as there is a difference in the culpability of P and D, this can be reflected in the nature or severity of the punishment each is to receive for his or her involvement.^[27]
2.24      Further, we also believe that if P in the course of a joint venture commits a collateral offence that D foresaw that P might commit, account should be taken of D's connection with the harm that results from P committing the offence. It is true that D does not intend that P should commit the collateral offence and may even be opposed to the commission of the offence. However, D, by participating in the joint venture, contributes to the circumstances giving rise to the commission of the collateral offence. Further, by contemplating the collateral offence as a possible incident of the unlawful venture and nevertheless deciding to participate, D consciously accepts the risk that such an offence might be committed.^[28]
2.25      We acknowledge that the retention of secondary liability may sometimes result in D being liable for unexpected consequences. However, this will usually be the result of anomalies in the substantive law that the doctrine of secondary liability must accommodate. The doctrine of secondary liability is of general application, applying to many different offences whether or not those offences are well structured, well defined or even consistent with one another. Removing D's, but not P's, liability for unforeseen consequences, would simply create a new anomaly.
2.26      One aim of the proposals in the CP was to simplify the law by creating a clear distinction between the liability of the principal offender and the liability of the accessory. We now believe that this simplicity comes at too high a price. If P commits an offence that D either intended should be committed or believed might be committed in the course of a joint venture, there are compelling reasons for convicting D of the offence should P commit it. We now believe that to confine D's liability in such cases to that of encouraging or assisting the offence would be to confine it too narrowly.

Note 1    Para 1.8.    [Back]

Note 2    Provided D satisfies the requisite fault element and there is a sufficient connection between D’s conduct and P’s commission of the offence. D’s conduct need not cause P to commit the offence in the sense that, but for D’s encouragement or assistance, P would not have committed the offence. However, D’s conduct must in fact encourage or assist P to commit the offence. If it does, there is a sufficient connection.    [Back]

Note 3    In which case D and P are guilty of conspiracy to commit the agreed offence. An agreement may be inferred from the conduct of D and P.    [Back]

Note 4    D, by agreeing with P to commit the agreed offence, is encouraging P to commit it just as P is encouraging D to commit the offence.    [Back]

Note 5    Chan Wing-Siu [1985] AC 168; Powell and Daniels [1999] 1 AC 1.     [Back]

Note 6    Para 4.24 (emphasis in original).     [Back]

Note 7    Paras 4.198 to 4.201 and para 5.2.16.     [Back]

Note 8    On this particular issue, Professor Sir John Smith thought that the Commission’s position was “frankly baffling” - “Criminal Liability of Accessories: Law and Law Reform” (1997) 113 Law Quarterly Review 453, 461.     [Back]

Note 9    Swindall v Osborne (1864) 2 Car. & K. 230; Du Cros v Lambourne [1907] 1 KB 40; Ramnath Mohan [1967] 2 AC 187. D can properly be convicted even if some of the jury find that he or she was the principal offender and some find that he or she was the accessory – Giannetto [1997] 1 Cr App R 1 in which the Court of Appeal referred with approval to the decision of the Supreme Court of Canada in Thatcher v R (1987) 39 DLR (4th) 275.    [Back]

Note 10    In Powell and Daniels [1999] 1 AC 1 it could be proved that the accused was either the person (P) who murdered V or a person (D) who was on a joint venture with P to buy drugs from V believing that P might shoot V with intent to cause serious harm. The accused could be convicted of murder.    [Back]

Note 11    The House of Lords has indicated that it is desirable, wherever possible, for the prosecution to specify whether the accused is alleged to be a principal offender or an accessory – Maxwell v DPP for Northern Ireland [1978] 1 WLR 1350.    [Back]

Note 12    [2001] EWCA Crim 638.    [Back]

Note 13    Article 6(3) provides, amongst other things, that everybody charged with a criminal offence has the right “to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him”.    [Back]

Note 14    Professor Sir John Smith, the Crown Prosecution Service and the Society of Public Teachers of Law.    [Back]

Note 15    “Secondary participation in crime – can we do without it?” (1994) 1 New Law Journal 679. See also R A Duff, “Acting Trying and Criminal Liability” in S C Shute, J Gardner and J Horder, eds, Action and Value in Criminal Law (1993) p 75; Simester and Sullivan, Criminal Law Theory and Doctrine (2nd ed 2003) pp 189 to191 and pp 237 to 239.    [Back]

Note 16    It is right to acknowledge that not all scholars accept that accurate labelling necessarily requires account to be taken of the harm resulting from conduct – see A J Ashworth, Principles of Criminal Law (4th ed 2003) p 91.     [Back]

Note 17    Part 1 of sch 2 to the Road Traffic Offenders Act 1988.     [Back]

Note 18    Part 1 of sch 2 to the Road Traffic Offenders Act 1988 as amended by the Criminal Justice Act 2003, s 285.    [Back]

Note 19    Now the Society of Legal Scholars.    [Back]

Note 20    “The Law Commission Consultation Paper on Complicity: (1) A Blueprint for Rationalism” [1994] Criminal Law Review 239, 244.    [Back]

Note 21    “Criminal Liability of Accessories: Law and Law Reform” (1997) 113 Law Quarterly Review 453, 460.    [Back]

Note 22    Above.    [Back]

Note 23    Howe [1987] AC 417.    [Back]

Note 24    “The Law Commission Consultation Paper on Complicity: (1) A Blueprint for Rationalism” [1994] Criminal Law Review 239, 244.    [Back]

Note 25    See cl 10 of the draft Bill.     [Back]

Note 26    This would include an agreed offence committed in the course of a joint venture.    [Back]

Note 27    Although comparisons can be misleading, it is at least noteworthy that in the United States of America, in a study of multi-party death penalty cases, it was found that in 63.6% of cases the principals were executed but not the accessories. By way of contrast, only in 32.3% of cases were both the principals and the accessories executed and in a mere 4.1% of cases were the accessories executed but not the principals: Joshua Dressler, “The Jurisprudence of Death by Another: Accessories and Capital Punishment” (1979) University of Colorado Law Review 17, 69.    [Back]

Note 28    In the second of our reports, we will be setting out and explaining our proposals for secondary liability, including explaining why we believe that holding D secondarily liable for a collateral offence committed in the course of a joint venture is justified in principle and as a matter of policy.    [Back]