Criminal Law: Accessory Liability

Criminal Liability as an Accessory

The Nature of Accessory Liability

The law makes a distinction between principal offenders, who commit the actus reus and mens rea actual offence, and accessories, who assist or encourage the offence in some way without committing the offence themselves. A person can only be liable as an accessory if an offence has been committed (it is derivative liability). There is no need to show that the accessory fulfilled the actus reus and mens rea of the primary offence, but if accessorial liability is proved the defendant is convicted of the same primary offence the principal committed.

Formerly, it was possible for a person to be an accessory on the basis of joint enterprise, but this is no longer the case as of the Supreme Court decision in R v Jogee [2016] UKSC 8.

When Is D an Accessory?

A person is an accessory to an offence if they ‘aid, abet, counsel, or procure the commission of an indictable offence’ with intention to aid, abet, counsel or procure: Accessories and Abettors Act 1861, s 8.

The Offence

For a person to be convicted as an accessory, there must be a principal who committed a criminal offence. However, a person can be convicted as an accessory if the principal is found to have the actus reus and mens rea of the offence but is acquitted because he has a defence: R v Bourne (1952) 36 Cr App R 125.

Aiding an Offence

Aiding an offence involves assisting, helping with or supporting the commission of the offence, such as by providing weapons or necessary information or acting as a look-out. It can be done before or at the time of the offence: R v Nedrick-Smith [2006] EWHC 3015.

There is no need for the accessory’s acts in aiding to ’cause’ the principal offence in the traditional sense or to have influenced the primary offender in any way: R v Stringer [2011] UKSC 59; R v Jogee [2016] UKSC 8.

Abetting and Counselling an Offence

The defendant abets an offence if he is present at the time and place of the offence and encourages the offence: R v Coney (1881-2) LR 8 QBD 534.

Abetting was historically treated as encouragement at the time the offence was committing while counselling was treated as encouragement preceding the offence. Modern courts do not draw much of a distinction.

Merely being present at the scene is not normally enough to establish that the defendant encouraged the offence: R v Atkinson (1869) 11 Cox CC 330. However, it can be if the defendant was at the scene on purpose or other factors indicate that their presence might be taken as encouragement: R v Coney (1881-2) LR 8 QBD 534.

There must be some connection between the encouragement and offence even if it is not causal. This is normally phrased in terms of authority – if the offence committed was outside of the authority granted by the encouragement it is too remote. For example, if P was encouraged by D to kill B, and then later murdered B without knowing it was B, this would be outside of the scope of the authority given by D: R v Calhaem [1985] QB 808.

There is no need for the accessory’s acts in abetting or counselling to ’cause’ the principal offence in the traditional sense or to have influenced the primary offender in any way: R v Stringer [2011] UKSC 59; R v Jogee [2016] UKSC 8.

Procuring an Offence

The defendant procures an offence if he produces it by endeavour and intends to do so: Attorney General’s Reference (No 1 of 1975) [1975] 2 All ER 684. Unlike the other forms of accessory liability, the defendant’s acts must cause the offence in the traditional sense (though mere causation is not enough to show that the defendant endeavoured to produce the offence). However, if the defendant causes the actus reus of an offence to be committed by an innocent agent, he is normally the principal rather than an accessory – procurement normally refers to procuring a guilty person to commit the offence.

Intention to Aid, Abet, Counsel of Procure

The accessory must intend to aid, abet, counsel or procure the offence. This in turn requires them to:

  • Intend to do the act which constitutes aiding, abetting, counselling or procurement;
  • Know or intend the essential elements of the offence which the defendant is to commit: R v Jogee [2016] UKSC 8; and
  • Believe that their acts or omissions will aid, abet, counsel or procure the offence. It is unclear from the case-law whether a belief that the act ‘might’ aid, abet, counsel or procure is enough.

There is no need for them to intend the consequences of the offence: R v Jogee [2016] UKSC 8.

The essential elements of the offence are the actus reus and mens rea of the offence the primary offender committed: R v Coney (1881-2) LR 8 QBD 534.

These conditions can probably still be met even if the defendant appears to have a legal obligation to do the act, as it is likely that the legal obligation would not apply where it involves being an accessory to an offence: Garrett v Arthur Churchill (Glass) [1970] QB 92.

The requisite knowledge and belief can be implied from the fact that the parties have a common purpose, but not necessarily, and there is no requirement that the parties have a common purpose: R v Jogee [2016] UKSC 8

Spiral Staircase

The defendant is not an accessory if he thinks that the principal will commit a lesser offence (in terms of actus reus or mens rea) than the one committed: R v Jogee [2016] UKSC 8. It is not enough that the defendant foresaw the possibility of a greater offence being committed.

However, the defendant can be accessory if he thinks the principal will commit one of a number of crimes (and the defendant does commit one of them): DPP for Northern Ireland v Maxwell [1978] 1 WLR 1350. Merely knowing that the principal will commit some crime without knowing (or caring) what type or not having a range of offences in mind, however, is not enough: R v Bainbridge [1960] QB 129; R v Patel [1970] Crim LR 274.

The defendant will not be liable if the principal intentionally changes the victim or target of the offence if the defendant only intended the crime to be committed against a specific person/target: R v Reardon [1999] Crim LR 392. They will still be liable if the target or victim is accidentally different (ie where the doctrine of transferred malice applies).

It is enough that the principal had conditional intention, knowledge or belief: R v Jogee [2016] UKSC 8. For example, if a pair of bank robbers agree to rob a bank, and agree that one of them shoot and kill people if it proves necessary, they have conditional intent that one of them will commit murder. If someone is shot and killed as part of the robbery, the other party is an accessory to murder even though it was not guaranteed that any killing would occur. The jury should ask themselves whether what occurred was within the scope of the plan that the defendant supported.

The accessory cannot be convicted for a greater offence than the principal, even if he has a more serious mens rea than the principal: R v Richards [1974] QB 776. There is a possible exception for procurement where the principal commits the actus reus but lacks the mens rea – in R v Cogan and Leak [1976] QB 217 the court held it was possible to procure the rape of a woman when the ‘principal’ had a reasonable belief in consent (and so was not guilty himself). This reasoning seems to have been confirmed in R v Millward [1994] Crim LR 527.

Can the Defendant Avoid Liability by Withdrawing?

It is possible to avoid liability by fully withdrawing the defendant’s participation, but what counts as withdrawal depends on the circumstances. In particular, the withdrawal must take place in good time, and what is needed to withdraw depends on the timing: R v Otway [2011] EWCA CRim 3.

If the offence has yet to be committed, the defendant only needs to unequivocally tell the others involved that he does not intend to participate: R v Grundy [1977] Crim LR 543.

If the offence has begun or is imminent, the defendant must take physical action to end the commission of the offence: R v Mitchell & King [1999] Crim LR 496; R v Beccara (1975) 62 Cr App R 212.

If the offence is completely spontaneous and unplanned violence, the defendant can withdraw by leaving the scene even if he does not take action to stop the offence: R v Mitchell & King [1999] Crim LR 496.