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1. The guidance sets out how charging decisions are to be approached in | 1. The guidance sets out how charging decisions are to be approached in | ||
cases involving joint enterprise. In particular, it addresses: | cases involving joint enterprise. In particular, it addresses: | ||
+ | |||
Application of the Full Code Test to cases involving joint enterprise. | Application of the Full Code Test to cases involving joint enterprise. | ||
The use of evidence of presence and association in proving | The use of evidence of presence and association in proving | ||
participation in a joint enterprise. | participation in a joint enterprise. | ||
- | The principles to be applied when selecting charges that involve | + | |
+ | The principles to be applied when selecting charges that involve | ||
principal, secondary and inchoate liability. | principal, secondary and inchoate liability. | ||
- | The approach to charging group assaults, including cases of murder | + | |
+ | The approach to charging group assaults, including cases of murder | ||
and manslaughter. | and manslaughter. | ||
- | Charging offences under the Serious Crime Act 2007. | + | |
+ | Charging offences under the Serious Crime Act 2007. | ||
2. Insofar as this guidance attempts to set out the law on secondary liability, | 2. Insofar as this guidance attempts to set out the law on secondary liability, | ||
what it sets out is the Crown Prosecution Service’s understanding, which does | what it sets out is the Crown Prosecution Service’s understanding, which does | ||
not have the force of law. | not have the force of law. | ||
+ | |||
Concerns | Concerns | ||
+ | |||
3. Concerns about the application of the doctrine of joint enterprise resulted in | 3. Concerns about the application of the doctrine of joint enterprise resulted in | ||
a House of Commons Justice Committee inquiry in 2011-12. The Committee | a House of Commons Justice Committee inquiry in 2011-12. The Committee | ||
published its report in January 2012, which recommended that the DPP issue | published its report in January 2012, which recommended that the DPP issue | ||
- | 2/20 | ||
guidance on the use of the doctrine when charging, including the relationship | guidance on the use of the doctrine when charging, including the relationship | ||
between association and complicity. | between association and complicity. | ||
+ | |||
The doctrine of joint enterprise | The doctrine of joint enterprise | ||
+ | |||
4. Courts and academics have expressed different opinions on the meaning of | 4. Courts and academics have expressed different opinions on the meaning of | ||
the common law doctrine of joint enterprise. Although some academics | the common law doctrine of joint enterprise. Although some academics | ||
Line 89: | Line 97: | ||
cases where those involved share a common purpose to commit crime X, and | cases where those involved share a common purpose to commit crime X, and | ||
cases where there is no shared purpose. | cases where there is no shared purpose. | ||
+ | |||
5. Joint enterprise can apply where two or more persons are involved in an | 5. Joint enterprise can apply where two or more persons are involved in an | ||
offence or offences. The parties to a joint enterprise may be principals (P) or | offence or offences. The parties to a joint enterprise may be principals (P) or | ||
secondary parties (accessories / accomplices) (D). | secondary parties (accessories / accomplices) (D). | ||
+ | |||
6. A principal is one who carries out the substantive offence i.e. performs the | 6. A principal is one who carries out the substantive offence i.e. performs the | ||
conduct element of the offence with the required fault element. | conduct element of the offence with the required fault element. | ||
+ | |||
7. A secondary party is one who assists or encourages (sometimes referred to | 7. A secondary party is one who assists or encourages (sometimes referred to | ||
as “aids, abets, counsels or procures”) P to commit the substantive offence, | as “aids, abets, counsels or procures”) P to commit the substantive offence, | ||
Line 99: | Line 110: | ||
prosecuted and punished as if he were a principal offender: s8 Accessories | prosecuted and punished as if he were a principal offender: s8 Accessories | ||
and Abettors Act 1861. | and Abettors Act 1861. | ||
+ | |||
8. Secondary liability principles can be applied to most offences. The | 8. Secondary liability principles can be applied to most offences. The | ||
principles remain the same, whichever offence they are applied to. The | principles remain the same, whichever offence they are applied to. The | ||
principles are commonly used in offences of violence, theft, fraud and public | principles are commonly used in offences of violence, theft, fraud and public | ||
order. | order. | ||
+ | |||
9. A joint enterprise may or may not be pre-planned. Sometimes a jointly | 9. A joint enterprise may or may not be pre-planned. Sometimes a jointly | ||
committed crime occurs spontaneously. The applicable law is the same in | committed crime occurs spontaneously. The applicable law is the same in | ||
either case: R v Mendez and Thompson. | either case: R v Mendez and Thompson. | ||
+ | |||
Example | Example | ||
People in a crowd of demonstrators suddenly start attacking a person | People in a crowd of demonstrators suddenly start attacking a person | ||
who shouts abuse at them. | who shouts abuse at them. | ||
+ | |||
Three types of joint enterprise | Three types of joint enterprise | ||
+ | |||
10. In R v ABCD the Court of Appeal identified three ways in which a joint | 10. In R v ABCD the Court of Appeal identified three ways in which a joint | ||
enterprise would usually operate, recognising that the scenarios may in some | enterprise would usually operate, recognising that the scenarios may in some | ||
cases overlap (para 7): | cases overlap (para 7): | ||
- | 3/20 | + | |
(1) Where two or more people join in committing a single crime, in | (1) Where two or more people join in committing a single crime, in | ||
circumstances where they are, in effect, all joint principals | circumstances where they are, in effect, all joint principals | ||
+ | |||
Examples | Examples | ||
+ | |||
1. P1 and P2 agree to commit a robbery. Each plays a part in carrying | 1. P1 and P2 agree to commit a robbery. Each plays a part in carrying | ||
out the conduct element: together they attack and take money off | out the conduct element: together they attack and take money off | ||
security men making a cash delivery. Both are liable for robbery as | security men making a cash delivery. Both are liable for robbery as | ||
joint principals. | joint principals. | ||
+ | |||
2. P1 and P2 go on a shoplifting spree together, both taking goods out | 2. P1 and P2 go on a shoplifting spree together, both taking goods out | ||
of shops without payment. They are joint principals. | of shops without payment. They are joint principals. | ||
+ | |||
3. P1 and P2 break into a house and they both help themselves to | 3. P1 and P2 break into a house and they both help themselves to | ||
items of the owner’s property. P1 and P2 are both guilty of burglary as | items of the owner’s property. P1 and P2 are both guilty of burglary as | ||
principal offenders. | principal offenders. | ||
+ | |||
In these cases each player has performed all the elements of the offence | In these cases each player has performed all the elements of the offence | ||
(robbery or theft) in his own right. Little difficulty or controversy arises in | (robbery or theft) in his own right. Little difficulty or controversy arises in | ||
respect of the liability of P1 and P2 in such cases. | respect of the liability of P1 and P2 in such cases. | ||
+ | |||
(2) Where D assists or encourages P to commit a single crime | (2) Where D assists or encourages P to commit a single crime | ||
In this scenario, P, with the fault element, carries out the conduct element | In this scenario, P, with the fault element, carries out the conduct element | ||
Line 134: | Line 156: | ||
need to be present at the scene of the offence. Both are liable for the offence. | need to be present at the scene of the offence. Both are liable for the offence. | ||
P is liable as a principal. Ds liability as a secondary party is based on proving: | P is liable as a principal. Ds liability as a secondary party is based on proving: | ||
- | P’s commission of the offence, although P need not be identified, | + | |
+ | P’s commission of the offence, although P need not be identified, | ||
charged or convicted. (Note that where the offence is committed | charged or convicted. (Note that where the offence is committed | ||
through the medium of an innocent agent, such as a child or any other | through the medium of an innocent agent, such as a child or any other | ||
person who is not criminally responsible, the person who incites the | person who is not criminally responsible, the person who incites the | ||
crime is liable as a principal.) | crime is liable as a principal.) | ||
- | D giving assistance or encouragement to P: R v Clarkson [1971] 1 | + | |
+ | D giving assistance or encouragement to P: R v Clarkson [1971] 1 | ||
WLR 1402; R v Jones and Mirrless (1977) 65 Cr. App. R. 250, CA. | WLR 1402; R v Jones and Mirrless (1977) 65 Cr. App. R. 250, CA. | ||
- | D’s intent to assist or encourage: R v Clarkson; R v Jones and | + | |
+ | D’s intent to assist or encourage: R v Clarkson; R v Jones and | ||
Mirrless. | Mirrless. | ||
- | D’s knowledge of the essential elements of P’s offence: Johnson v | + | |
+ | D’s knowledge of the essential elements of P’s offence: Johnson v | ||
Youdon [1950] 1 K.B. 544, DC. The courts have interpreted | Youdon [1950] 1 K.B. 544, DC. The courts have interpreted | ||
knowledge broadly in this context. It has been held to include belief, | knowledge broadly in this context. It has been held to include belief, | ||
Line 149: | Line 175: | ||
committed. See para 8.4.2.2 of Smith and Hogan’s Criminal Law (13th | committed. See para 8.4.2.2 of Smith and Hogan’s Criminal Law (13th | ||
ed, 2011) for a detailed commentary. | ed, 2011) for a detailed commentary. | ||
+ | |||
Examples | Examples | ||
+ | |||
1. P and D commit a burglary. P alone enters as a trespasser and | 1. P and D commit a burglary. P alone enters as a trespasser and | ||
steals from the premises. D assists or encourages P by driving P to | steals from the premises. D assists or encourages P by driving P to | ||
Line 155: | Line 183: | ||
to commit burglary. Both are liable for the burglary, P as the principal, | to commit burglary. Both are liable for the burglary, P as the principal, | ||
D as an accomplice. | D as an accomplice. | ||
- | 4/20 | + | |
2. D and P assault V causing ABH. D and P approach V. P punches V, | 2. D and P assault V causing ABH. D and P approach V. P punches V, | ||
causing injuries that amount to ABH. D shouts encouragement to P | causing injuries that amount to ABH. D shouts encouragement to P | ||
during the assault. P is liable as a principal; D is liable as an | during the assault. P is liable as a principal; D is liable as an | ||
accomplice, for assisting and encouraging P. | accomplice, for assisting and encouraging P. | ||
+ | |||
3. D provides P with a weapon so that P can use it in a robbery. P is | 3. D provides P with a weapon so that P can use it in a robbery. P is | ||
liable as a principal; D is liable as an accomplice. | liable as a principal; D is liable as an accomplice. | ||
Line 165: | Line 194: | ||
course of it P commits a second crime (crime B) which D had foreseen | course of it P commits a second crime (crime B) which D had foreseen | ||
he might commit | he might commit | ||
+ | |||
In this scenario, D may act as a principal or an accessory to crime A. D is also | In this scenario, D may act as a principal or an accessory to crime A. D is also | ||
liable for crime B, as an accessory. It is not necessary that D wants or intends | liable for crime B, as an accessory. It is not necessary that D wants or intends | ||
Line 173: | Line 203: | ||
case law in this area involves cases of murder and manslaughter, although | case law in this area involves cases of murder and manslaughter, although | ||
the principles are applicable to other offences. | the principles are applicable to other offences. | ||
+ | |||
Examples | Examples | ||
+ | |||
1. D and P carry out a burglary (offence A). P acts as principal, | 1. D and P carry out a burglary (offence A). P acts as principal, | ||
entering the premises and stealing. D assists or encourages P by | entering the premises and stealing. D assists or encourages P by | ||
Line 185: | Line 217: | ||
UKHL 45; R v Yemoh [2009] EWCA Crim 930; R v Mendez and | UKHL 45; R v Yemoh [2009] EWCA Crim 930; R v Mendez and | ||
Thompson [2010] EWCA Crim 516. | Thompson [2010] EWCA Crim 516. | ||
+ | |||
2. As in example 1 above, except that D only foresees that P might | 2. As in example 1 above, except that D only foresees that P might | ||
commit an unlawful act (use unlawful force) with intent to cause some | commit an unlawful act (use unlawful force) with intent to cause some | ||
Line 190: | Line 223: | ||
is liable for manslaughter: R v Rahman; R v Yemoh; R v Carpenter | is liable for manslaughter: R v Rahman; R v Yemoh; R v Carpenter | ||
[2011] EWCA Crim 2568. | [2011] EWCA Crim 2568. | ||
+ | |||
11. Note that where two people are jointly indicted for the commission of a | 11. Note that where two people are jointly indicted for the commission of a | ||
crime and the evidence does not point to one rather than the other, and there | crime and the evidence does not point to one rather than the other, and there | ||
Line 199: | Line 233: | ||
causing or allowing the death or serious injury of a child under the age of 16 | causing or allowing the death or serious injury of a child under the age of 16 | ||
or of a vulnerable adult. | or of a vulnerable adult. | ||
- | 5/20 | + | |
Transferred malice | Transferred malice | ||
+ | |||
12. The principle of transferred malice is often explained by reference to | 12. The principle of transferred malice is often explained by reference to | ||
offences of violence: if D intends to kill or do really serious bodily harm to V1, | offences of violence: if D intends to kill or do really serious bodily harm to V1, | ||
but by mistake kills V2 instead, he is guilty of murder of V2. | but by mistake kills V2 instead, he is guilty of murder of V2. | ||
+ | |||
13. The doctrine applies to secondary parties: D intentionally assists or | 13. The doctrine applies to secondary parties: D intentionally assists or | ||
encourages P to murder V1 but P, intending to kill V1, mistakenly kills V2 | encourages P to murder V1 but P, intending to kill V1, mistakenly kills V2 | ||
instead. D is guilty of the murder of V2. | instead. D is guilty of the murder of V2. | ||
+ | |||
14. In R v Gnango [2011] UKSC 59 the Supreme Court used a combination of | 14. In R v Gnango [2011] UKSC 59 the Supreme Court used a combination of | ||
the common law principles of secondary liability and the common law doctrine | the common law principles of secondary liability and the common law doctrine | ||
Line 217: | Line 255: | ||
serious injury, or as an accessory to the act of firing the fatal shot (paras 60- | serious injury, or as an accessory to the act of firing the fatal shot (paras 60- | ||
62). | 62). | ||
+ | |||
15. Transferred malice will not apply where P deliberately selects a different | 15. Transferred malice will not apply where P deliberately selects a different | ||
victim from that foreseen by D. However, in such situations, consideration | victim from that foreseen by D. However, in such situations, consideration | ||
should be given to a charge under the Serious Crime Act 2007, or a charge of | should be given to a charge under the Serious Crime Act 2007, or a charge of | ||
conspiracy. | conspiracy. | ||
+ | |||
Qualifications on the scope of joint enterprise | Qualifications on the scope of joint enterprise | ||
+ | |||
16. There are two main qualifications that limit the scope of joint enterprise. | 16. There are two main qualifications that limit the scope of joint enterprise. | ||
Persons will not be liable where: | Persons will not be liable where: | ||
- | P’s act is fundamentally different to that foreseen by D; or | + | |
- | D withdraws from the joint enterprise before the offence is committed. | + | P’s act is fundamentally different to that foreseen by D; or |
+ | |||
+ | D withdraws from the joint enterprise before the offence is committed. | ||
Fundamentally different act | Fundamentally different act | ||
+ | |||
17. Where a principal does an act “fundamentally different” from that which | 17. Where a principal does an act “fundamentally different” from that which | ||
was foreseen by D, P will be regarded as going beyond the scope of the joint | was foreseen by D, P will be regarded as going beyond the scope of the joint | ||
enterprise, and D will not be liable for P’s act. | enterprise, and D will not be liable for P’s act. | ||
+ | |||
18. Whether what P did is fundamentally different from anything foreseen by | 18. Whether what P did is fundamentally different from anything foreseen by | ||
D is a question of fact: R v Yemoh [2009] EWCA Crim 930 (paragraph 140). | D is a question of fact: R v Yemoh [2009] EWCA Crim 930 (paragraph 140). | ||
+ | |||
19. The question is determined by the jury: see para 63 R v Rahman for the | 19. The question is determined by the jury: see para 63 R v Rahman for the | ||
appropriate direction to a jury. | appropriate direction to a jury. | ||
+ | |||
20. The court in R v Mendez and Thompson [2010] EWCA Crim 516 | 20. The court in R v Mendez and Thompson [2010] EWCA Crim 516 | ||
expressed the test as whether P’s act was “of a nature likely to be altogether | expressed the test as whether P’s act was “of a nature likely to be altogether | ||
Line 239: | Line 286: | ||
and therefore should be considered “in a different league” from what D | and therefore should be considered “in a different league” from what D | ||
intended or foresaw (paragraph 48). | intended or foresaw (paragraph 48). | ||
- | 6/20 | + | |
Example | Example | ||
+ | |||
D and P intend to inflict really serious harm, by beating V with their | D and P intend to inflict really serious harm, by beating V with their | ||
fists, but P produces a knife that D did not know P was carrying, and | fists, but P produces a knife that D did not know P was carrying, and | ||
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that D either knew of the existence of the knife, or its use was foreseen | that D either knew of the existence of the knife, or its use was foreseen | ||
by D. | by D. | ||
+ | |||
21. The fundamentally different act principle will not apply where the common | 21. The fundamentally different act principle will not apply where the common | ||
purpose is achieved but P commits the offence in a different manner to that | purpose is achieved but P commits the offence in a different manner to that | ||
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murder if P uses a gun to kill rather than a knife, which D had contemplated, | murder if P uses a gun to kill rather than a knife, which D had contemplated, | ||
or vice versa: see R v English and R v Mendez and Thompson. | or vice versa: see R v English and R v Mendez and Thompson. | ||
+ | |||
22. For a detailed summary of the way in which the courts have applied the | 22. For a detailed summary of the way in which the courts have applied the | ||
principle in cases of murder and manslaughter see para 8.5.2.3 of Smith and | principle in cases of murder and manslaughter see para 8.5.2.3 of Smith and | ||
Hogan’s Criminal Law (13th ed, 2011). | Hogan’s Criminal Law (13th ed, 2011). | ||
Withdrawal | Withdrawal | ||
+ | |||
23. D will not be liable for the act of P where D withdraws from the joint | 23. D will not be liable for the act of P where D withdraws from the joint | ||
enterprise before the offence is committed. | enterprise before the offence is committed. | ||
+ | |||
24. However, where D is not liable as a secondary party because of a | 24. However, where D is not liable as a secondary party because of a | ||
withdrawal, he may nevertheless be liable for an inchoate offence, such as | withdrawal, he may nevertheless be liable for an inchoate offence, such as | ||
conspiracy, attempt or an offence under the Serious Crime Act 2007 (see | conspiracy, attempt or an offence under the Serious Crime Act 2007 (see | ||
below). | below). | ||
+ | |||
25. Whether D has withdrawn is a question of fact and degree, will depend on | 25. Whether D has withdrawn is a question of fact and degree, will depend on | ||
the circumstances of each case, and is one for the jury to decide. | the circumstances of each case, and is one for the jury to decide. | ||
+ | |||
26. Factors that may be considered, for instance, are: the nature of the | 26. Factors that may be considered, for instance, are: the nature of the | ||
assistance and encouragement given by D; how imminent the commission of | assistance and encouragement given by D; how imminent the commission of | ||
Line 276: | Line 330: | ||
and the action that is said to constitute the withdrawal: R v O’Flaherty, Ryan | and the action that is said to constitute the withdrawal: R v O’Flaherty, Ryan | ||
and Toussaint [2004] 2 Cr. App. R. 20, CA. | and Toussaint [2004] 2 Cr. App. R. 20, CA. | ||
+ | |||
27. R v Stringer [2011] EWCA Crim 1396 makes clear that there may be | 27. R v Stringer [2011] EWCA Crim 1396 makes clear that there may be | ||
cases where any assistance or encouragement provided by D is so distanced | cases where any assistance or encouragement provided by D is so distanced | ||
Line 282: | Line 337: | ||
spontaneous joint enterprise: where D starts to join in chasing V with hostile | spontaneous joint enterprise: where D starts to join in chasing V with hostile | ||
intent, but quickly thinks better of it and stops, it would be unjust for D to be | intent, but quickly thinks better of it and stops, it would be unjust for D to be | ||
- | 7/20 | ||
automatically guilty of whatever violence was inflicted on V by others who | automatically guilty of whatever violence was inflicted on V by others who | ||
continued to chase V (paras 52-53). | continued to chase V (paras 52-53). | ||
+ | |||
Prosecuting offences on the basis of joint enterprise | Prosecuting offences on the basis of joint enterprise | ||
+ | |||
28. Prosecutors may only start a prosecution if a case satisfies the Full Code | 28. Prosecutors may only start a prosecution if a case satisfies the Full Code | ||
Test set out in the Code for Crown Prosecutors. This test has two stages: the | Test set out in the Code for Crown Prosecutors. This test has two stages: the | ||
first is the requirement of evidential sufficiency and the second involves | first is the requirement of evidential sufficiency and the second involves | ||
consideration of the public interest. | consideration of the public interest. | ||
+ | |||
29. At the evidential stage, a prosecutor must be satisfied that there is | 29. At the evidential stage, a prosecutor must be satisfied that there is | ||
sufficient evidence to provide a realistic prospect of conviction. This means | sufficient evidence to provide a realistic prospect of conviction. This means | ||
Line 297: | Line 354: | ||
prosecutor’s assessment of the evidence, including any information that he or | prosecutor’s assessment of the evidence, including any information that he or | ||
she has about the defence. | she has about the defence. | ||
+ | |||
30. A case which does not pass the evidential stage must not proceed, no | 30. A case which does not pass the evidential stage must not proceed, no | ||
matter how serious or sensitive it may be. | matter how serious or sensitive it may be. | ||
+ | |||
31. If the evidential stage is satisfied, prosecutors must then go on to consider | 31. If the evidential stage is satisfied, prosecutors must then go on to consider | ||
the second stage: whether a prosecution is required in the public interest. | the second stage: whether a prosecution is required in the public interest. | ||
The evidential stage applied to joint enterprise cases | The evidential stage applied to joint enterprise cases | ||
+ | |||
32. The evidential stage of the Full Code Test applies in the same way to | 32. The evidential stage of the Full Code Test applies in the same way to | ||
cases involving joint enterprise as it does to all other cases. | cases involving joint enterprise as it does to all other cases. | ||
+ | |||
33. When assessing the sufficiency of evidence in a joint enterprise case a | 33. When assessing the sufficiency of evidence in a joint enterprise case a | ||
prosecutor is likely to ask a number of the following questions: | prosecutor is likely to ask a number of the following questions: | ||
- | Is there evidence that the defendants acted as joint principals? | + | |
- | If not, did D assist or encourage another to commit offence A? | + | Is there evidence that the defendants acted as joint principals? |
- | Or, did D assist or encourage P to commit offence A, foreseeing that | + | |
+ | If not, did D assist or encourage another to commit offence A? | ||
+ | |||
+ | Or, did D assist or encourage P to commit offence A, foreseeing that | ||
P might carry out the conduct element of offence B, with the | P might carry out the conduct element of offence B, with the | ||
necessary fault element of offence B? | necessary fault element of offence B? | ||
- | Was P’s act fundamentally different from what was foreseen by D? | + | |
- | Does D have a viable claim to have withdrawn from the joint | + | Was P’s act fundamentally different from what was foreseen by D? |
+ | |||
+ | Does D have a viable claim to have withdrawn from the joint | ||
enterprise? | enterprise? | ||
+ | |||
34. Prosecutors should exercise particular care when assessing the questions | 34. Prosecutors should exercise particular care when assessing the questions | ||
above in cases that involve: | above in cases that involve: | ||
- | A spontaneous joint enterprise; and | + | |
- | Youths and mentally disordered suspects. | + | A spontaneous joint enterprise; and |
+ | |||
+ | Youths and mentally disordered suspects. | ||
Participation | Participation | ||
+ | |||
35. The live issue in a joint enterprise case is often whether D has participated | 35. The live issue in a joint enterprise case is often whether D has participated | ||
in the venture. This will involve proving that D by words or conduct assisted or | in the venture. This will involve proving that D by words or conduct assisted or | ||
Line 324: | Line 395: | ||
foresight. Liability does not depend on D being present at the scene of the | foresight. Liability does not depend on D being present at the scene of the | ||
offence. | offence. | ||
- | 8/20 | + | |
36. Without some participation by D, the following will not satisfy the evidential | 36. Without some participation by D, the following will not satisfy the evidential | ||
stage: | stage: | ||
- | Mere accidental presence at the scene of an offence. | + | |
- | Association with the principal offender(s). | + | Mere accidental presence at the scene of an offence. |
- | Association with or membership of a group or gang. | + | |
+ | Association with the principal offender(s). | ||
+ | |||
+ | Association with or membership of a group or gang. | ||
37. The court in R v Stringer addressed the difficulty in defining the evidential | 37. The court in R v Stringer addressed the difficulty in defining the evidential | ||
threshold for participation: | threshold for participation: | ||
Line 343: | Line 418: | ||
P's act was done with D's assistance or encouragement” (para 51). | P's act was done with D's assistance or encouragement” (para 51). | ||
Presence at the scene of an offence as evidence of participation | Presence at the scene of an offence as evidence of participation | ||
+ | |||
38. Mere accidental presence at the scene of an offence is not sufficient for D | 38. Mere accidental presence at the scene of an offence is not sufficient for D | ||
to be liable as a secondary party. A number of authorities confirm that D must | to be liable as a secondary party. A number of authorities confirm that D must | ||
assist or encourage P in some way. | assist or encourage P in some way. | ||
+ | |||
39. For example, D who stands outside a building while his friend commits a | 39. For example, D who stands outside a building while his friend commits a | ||
burglary cannot be convicted of burglary without proof that he assisted or | burglary cannot be convicted of burglary without proof that he assisted or | ||
encouraged his friend by, for example, acting as a lookout, or waiting to carry | encouraged his friend by, for example, acting as a lookout, or waiting to carry | ||
off the stolen items, even if none in fact emerge. | off the stolen items, even if none in fact emerge. | ||
+ | |||
40. It follows that D’s voluntary and purposeful presence at the scene, | 40. It follows that D’s voluntary and purposeful presence at the scene, | ||
depending on the circumstances of the case, may amount to assistance or | depending on the circumstances of the case, may amount to assistance or | ||
encouragement to P, so as to assist or encourage P’s offence. In such | encouragement to P, so as to assist or encourage P’s offence. In such | ||
circumstances, D may be liable as an accomplice. | circumstances, D may be liable as an accomplice. | ||
+ | |||
41. However, voluntary presence at the scene will not of course necessarily | 41. However, voluntary presence at the scene will not of course necessarily | ||
amount to assistance or encouragement to P. For instance, in a case of | amount to assistance or encouragement to P. For instance, in a case of | ||
Line 362: | Line 441: | ||
proof of D’s intent to assist or encourage (see, for example, R v Miah [2004] | proof of D’s intent to assist or encourage (see, for example, R v Miah [2004] | ||
EWCA Crim 63. | EWCA Crim 63. | ||
+ | |||
42. Examples where D’s voluntary and purposeful presence may amount to | 42. Examples where D’s voluntary and purposeful presence may amount to | ||
assistance or encouragement are: | assistance or encouragement are: | ||
- | 9/20 | + | |
Examples | Examples | ||
+ | |||
1. P rapes V. D1 and D2 hear V screaming and enter the room where | 1. P rapes V. D1 and D2 hear V screaming and enter the room where | ||
the rape is taking place. They do not provide direct physical assistance, | the rape is taking place. They do not provide direct physical assistance, |