Criminal Law: Accomplices and Joint Enterprise

A person can be guilty of an offence they did not personally carry out, as an accomplice or secondary party. Under section 8 of the Accessories and Abettors Act 1861, anyone who aids, abets, counsels or procures the commission of an offence is liable to be tried and punished as a principal offender.

1. The Four Modes of Participation

Aiding is giving help or support, usually at the scene. Abetting is encouraging at the time of the offence. Counselling is advising or encouraging beforehand. Procuring means to produce by endeavour, bringing about the offence (Attorney General's Reference (No 1 of 1975)). The actus reus is the act of assistance or encouragement, which must have some connection to the principal's offence.

2. The Mental Element

The secondary party must intend to assist or encourage the principal's conduct, and must know the essential matters that make that conduct an offence. The most contested area has been joint enterprise, where two or more people set out together and one commits a further offence.

3. The Correction in R v Jogee

For many years, under the line of authority beginning with Chan Wing-Siu, a secondary party could be guilty simply for foreseeing that the principal might commit the further offence. The Supreme Court held that this took a wrong turn.

4. Worked Example

After Jogee: A is not automatically liable just because he foresaw that B might use violence. The prosecution must prove that A intended to assist or encourage B to cause serious harm or death. A's foresight is relevant evidence of that intention, but the jury must be satisfied of the intention itself. Conclusion:A's liability for the stabbing turns on his intention, not mere foresight.

Examiner Insights

Conclusion

Secondary liability lets the law reach those who help crimes happen. Identify the mode of participation, then apply the Jogee mental element: intention to assist or encourage, proved on the evidence, of which foresight is only a part.