Complicity

Under the common laws of 1) the doctrine of innocent agency or 2) the doctrine of common design; or under the legislation governing accessorial criminal liability (eg the Criminal Law Act, 1997).

According to the doctrine of innocent agency, if a person employs an 'innocent agent' to perpetrate a crime, then that person, not the innocent agent, will be guilty of the crime. This was established in R v Manley (1844). Manley asked a child to commit a theft, and it was Manley who was charged as the principal offender.

Note: per Smith and Hogan (Criminal Law), the agent who commits the crime is not innocent if they had the necessary mens rea for the offence. If they do, then it's the agent who is the principal offender, and the person who asked them to commit the crime could be liable as an accessory. In Manley, the court stated that if there was evidence the child was not innocent and had the requisite mens rea for the theft, then Manley could not have been charged as the principal but only as an accessory.

In The People (DPP) v Cumberton (1994), Blayney J held that if two or more people agree to carry out a crime together, each is as liable as the other for what eventually takes place that is within reasonable contemplation of that plan. The test, he said, is what was tacitly agreed between the parties and whether what happened was within the common design.

In R v Butt (1844), the accused deliberately gave false information to the bookkeeper of his employer's company, knowing it would be entered into the company accounts. As the bookkeeper had innocently entered the wrong information, the defendant was convicted as the principal offender on a charge of falsifying the accounts.

This can also be called the doctrine of joint enterprise. It was defined in the following terms by Lord Parker CJ in R v Anderson & Morris (1966): 

"Where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, and that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise; but (and this is the crux of the matter)… if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of the unauthorised act… It is for the jury in every case to decide whether what was done was part of the joint enterprise or went beyond it and was in fact an act unauthorised by that joint enterprise." [Important quote] 

In The People (DPP) v Cumberton (1994), Cumberton had arranged for a shooting victim to be in a certain place at a certain time, at the request of a third man. Cumberton said he believed the victim was to get "a good hiding" but was not aware he would be shot.

In the Court of Criminal Appeal, Blayney J approved the trial judge's direction to the jury that "if two or more people make an agreed plan to carry out some unlawful act, each of those persons is as liable as the other for what eventually takes place that is within reasonable contemplation of that plan". He added that the trial judge should have also told the jury that if one of the people goes beyond what was contemplated, the other is not liable for the consequences of the unauthorised act. However, what was contemplated by one but not communicated to the other is irrelevant; the test is what was tacitly agreed and whether what happened fell within the confines of that agreement.

In The DPP v Doohan (2002), Doohan had asked someone to inflict serious injuries on the victim, such as "a couple of broken arms and legs". However, the victim died as a result of the injuries ultimately inflicted, and Doohan was convicted of murder. 

Like in Cumberton, the court upheld Anderson & Morris, but Denham J distinguished the case from Cumberton because in that case the accused had contemplated only that the victim would suffer transient (impermanent) injuries; in Doohan, the court was satisfied that the accused had contemplated that the victim would suffer horrific physical injuries of a serious nature.

In The People (DPP) v Hourigan and O'Donovan (2004), the trial judge outlined the following scenario to the jury as an example of an act that goes beyond the common design: two people agree to steal various electronic items from a house. They are challenged by the female owner of the house, and one of the pair rapes her. The Court of Criminal Appeal endorsed the view that this act would go beyond what had been tacitly agreed as part of the common enterprise. However, if the man killed the woman, rather than raped her, this could be seen as an act done in pursuance of the joint enterprise, and therefore his partner could be liable for the act as well.

In Chan Wing-siu v R (1984), three men armed with knives broke into an apartment occupied by a couple. One of the men, the appellant in this case, guarded the wife in one part of the apartment while the two others took the husband to another part, where they killed him. The appellant argued that the killing had gone beyond what was tacitly agreed. However, the Privy Council ruled that the appellant had joined in an enterprise in which he knew dangerous weapons were being carried, and he should not be allowed to escape the consequences on the basis that he had assumed – in a manner likely too optimistic – that no one would be at risk of death or bodily injury.

This question arose in The People (DPP) v Murray (1977). In this case, Noel and Marie Murray had robbed a bank and were being chased by an off-duty guard. The guard caught Noel Murray, and Marie shot the guard. The majority view was that if Marie was reckless as to whether the man was a guard, this recklessness should not be imputed to Noel. Henchy J, for example, held that in the absence of any evidence that the pair had agreed (expressly or implicitly) to shoot a would-be captor even if he was a guard, Marie's recklessness should be deemed to be personal to her and outside the scope of the common design. While it could be inferred by the fact that the pair were carrying loaded guns that Noel had agreed, explicitly or implicitly, to murder, it could not be inferred that he had necessarily agreed to capital murder.

In The People (DPP) v Eccles (1986), three men took part in the robbery of a Post Office van, during which a guard was shot and killed. The men had attended two meetings at which the robbery was planned. In the Court of Criminal Appeal, the two co-conspirators argued that they should not be found guilty of capital murder because they did not know the man was a guard. Hederman J held that the shooting of the guard was part of the common design, as they had known the van would be escorted by guards and that any resistance by the guards would be dealt with by use of firearms.

In R v Gnango (2011), Gnango engaged in a gunfight with another person identified only as 'Bandana Man'. A third person was accidentally killed in the crossfire. The majority of the Supreme Court accepted that Gnango and Bandana Man had been engaged in a common purpose to shoot and be shot at, much like participants in a duel.

In R v Jogee (2016), Jogee and his co-accused, Hirsi, had spent an evening taking drugs and drinking alcohol. Twice they visited the house of Naomi Reid, who was in a relationship with the deceased, Paul Fyfe. After the second visit, Reid texted Jogee, asking him not to bring Hirsi back to her house. However, the men returned for a third visit minutes later. By this time, Fyfe was there. An angry exchange ensued among the three men and ultimately Hirsi stabbed and killed Fyfe, while Jogee shouted encouragement. 

The Supreme Court restated the principles on joint enterprise and held that two questions must be asked in order to determine the guilt of a defendant: 

• 1) Did they assist or encourage the commission of the crime? 
• 2) If so, did they act with the requisite mens rea of that crime?

This represents an important development in England, as the Supreme Court moved away from the foreseeability test that followed from Anderson. Now, the accused must have the mens rea for the offence in question.

However, the Irish Supreme Court restated the foreseeability approach in The DPP v Dekker (2015).

Section 7 of the Criminal Law Act 1997 deals with penalties for assisting offenders.

S7(1) provides that: "any person who aids, abets, counsels or procures the commission of an indictable offence" shall be liable as a principal offender (ie this applies to someone who assists in the act itself). 

Section 22 of the Petty Sessions (Ireland) Act 1851 relates to summary offences. It states that a person who aids, abets, counsels or procures the commission of a summary offence before it is carried out is an accessory before the fact. A person who does so at the scene of the crime is an accessory at the fact.

No; mere presence alone does not attract liability as an accessory. The accused must have taken active steps to encourage the principal. This was held by Cave J and Hawkins J in R v Coney (1882). Hawkins J said: "Non-interference to prevent a crime is not itself a crime."

The above reasoning was applied in R v Clarkson (1971), there was evidence that Clarkson was present at a rape, but no evidence of physical participation or verbal encouragement. 

In The People (DPP) v Rose (2002), Rose was present during a murder and at one point said "Mind the blood, lads". This was held to be too equivocal (open to interpretation) to justify upholding a murder conviction.

The slightest encouragement is sufficient. In R v Giannetto (1996), it was held that any involvement "from encouragement upwards would suffice". In the Australian case of R v Brown (1968), a mere cough was enough to assist a commission of murder, as it acted as a warning to the killer that the victim was leaving his room and vulnerable to attack.

This question arose in The People (AG) v Ryan (1966). Ryan and another man, Coffey, were part of a gang that got into a fight with a group of people leaving a dance. Coffey, the gang leader, claimed that members of the group had attacked him earlier in the night. During the fight, he struck one of the group members with a heavy object, killing him.

In a judgment delivered by Teevan J, the Court of Criminal Appeal held that Ryan's presence in the group of attackers, where he knowingly lent support to the assailant, was sufficient for conviction. The court held that in such a case, it must be shown that the actions of the accused were intentional and that they were intended to assist or encourage the principal. Coffey was convicted of murder, and Ryan was convicted of manslaughter, having been found to have intended nothing less than serious injury.

No, they don't have to know the precise details. In The DPP for Northern Ireland v Maxwell (1978), Maxwell had been asked to guide a group of fellow UVF members to a pub. He drove there in his car, and the group followed. One of the group then threw a bomb into the pub, though it was defused by the owner's son. Maxwell was convicted as an accessory. He appealed, arguing he didn't know what the group's intention was. However, the House of Lords held that all that needed to be proven was that he was aware of the nature of what was being planned. As a member of the UVF himself, he would have been well aware of the potential for an offence of that nature to be committed.

In The DPP v Madden (1977), four men were convicted of murder. The victim had been killed in a hail of bullets in a drive-by shooting. It was held that the prosecution must show that the accused intended to assist the principal in the crime actually being committed or a crime of a similar nature. 

In The People (DPP) v Egan (1989), Egan was a window supplier with a large workshop at the back of his house. A friend of an acquaintance told him that "a small stroke was coming off", involving a van. Egan agreed to hide this van in his workshop. He said that when the van arrived, a group of men got out holding guns. He said this frightened him, and he realised the 'stroke' was to be an armed robbery. He said if he had known that's what it was, he wouldn't have got involved.

In Egan, the court based its judgments on the principles of Madden and Maxwell, and Egan was convicted of robbery. He appealed, but the conviction was upheld, as he had known the nature of the offence was the theft of goods. It didn't matter if he didn't know exactly who was being robbed, when, what was being stolen, etc.

In such a case, the person can raise the defence of withdrawal or abandonment. Whether the defence is successful depends on the evidence in the case.

In R v Whitehouse (1940), the British Columbia Court of Appeal laid out what constituted a sufficient withdrawal. Sloan JA held that it requires more than a mere change of mind or physical change of place; where practical and reasonable, the person should communicate their intention to withdraw in a timely manner to those wishing to continue with the offence. They must give "unequivocal notice" that if the other party plans to carry on with the offence, it will be without their assistance.

In The People (AG) v Ryan (1966), the case involving the fight after a dance, Ryan said he had told two girls in the other group that there would be no fighting, so he should have been considered to have dissociated himself from Coffey's actions. This argument was found to be insufficient to establish withdrawal on his part. 

In R v Becerra and Cooper (1975), the accused agreed to rob a house together. Becerra gave Cooper a knife to use in case there was any trouble. Mid-robbery, they were disturbed by one of the occupants of the house, and Becerra escaped through a window, shouting: "There's a bloke coming. Let's go!" However, Cooper stayed behind and killed the occupant. Becerra claimed he had withdrawn from the act and appealed his conviction. His appeal was dismissed, the court upholding the principles laid out in Whitehouse (timely manner; unequivocal notice). 

In R v Jensen and Ward (1980), the Supreme Court of Victoria held that withdrawal didn't necessarily have to occur before the crime was committed, but it wasn't enough for the accused to simply have changed his mind or experience regret. He needed to communicate his intention to withdraw to the other parties, or take some other positive step, such as calling the police.

S7(2) of the Criminal Law Act 1997 states that "where a person has committed an arrestable offence, any other person who, knowingly or believing him… to be guilty of the offence or of some other arrestable offence, does without reasonable excuse any act with intent to impede his… apprehension or prosecution shall be guilty of an offence." 

In other words, if you know or believe someone has committed an arrestable offence, and you do anything to prevent him from being apprehended or prosecuted, you will be guilty of an offence, unless you had a reasonable excuse.

Under S7(3), even if the principal is acquitted of the offence in question, you can still be charged with an offence under S7(2) if it's proven the offence was committed by someone.

'Arrestable offence' is defined in S2(1) of the Criminal Law Act 1997, as "an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty". It includes an attempt to commit any such offence.

These are provided in S7 of the Criminal Law Act 1997. The penalty depends on what the principal's penalty is. Where the principal is liable to life imprisonment, the accessory is liable for up to 10 years; where the principal is liable to up to 14 years, the accessory is liable for up to seven; where the principal is liable for up to 10 years, the accessory is liable for up to five; and in any other case, the accessory is liable for up to three years.

If this happens they can be charged under S8 of the Criminal Law Act 1997. The only exception is if they concealed the offence in exchange for something intended to make up for the loss or injury caused by the offence.

For offences of secondary liability, it must be proven that a crime was committed. Incitement and conspiracy are inchoate offences, meaning a crime was intended but not ultimately committed.

The laws are uncertain in this regard and very much in need of statutory intervention or an authoritative judicial pronouncement. For a problem Q, where an act goes beyond what was tacitly agreed, they are looking for reference to common design.