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The Law Commission

(LAW COM No 305)

PARTICIPATING IN CRIME

Presented to the Parliament of the United Kingdom by the Lord Chancellor
and Secretary of State for Justice by Command of Her Majesty

May 2007

Cm 7084 £xx.xx

The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Honourable Mr Justice Etherton, Chairman
Professor Hugh Beale QC, FBA
Mr Stuart Bridge
Professor Jeremy Horder
Mr Kenneth Parker QC

The Chief Executive of the Law Commission is Mr Steve Humphreys.

The Law Commission is located at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ.

The terms of this report were agreed on 28 February 2007.

The text of this report is available on the Internet at:

http://www.lawcom.gov.uk

THE LAW COMMISSION

PARTICIPATING IN CRIME

CONTENTS

	Para
PART 1: INTRODUCTION	1.1
The problems with the current law of secondary liability	1.5
General problems	1.5
Parity of culpability	1.5
Joint criminal ventures	1.10
A doctrine characterised by uncertainty and incoherence	1.12
Specific problems	1.14
D's state of mind in relation to the commission of the principal offence	1.15
Liability for omissions	1.18
Performing a legal duty	1.19
Joint criminal ventures	1.20
The doctrine of innocent agency	1.28
Causing the commission of a no-fault offence	1.30
The Commission's proposals in 1993	1.31
The difference between inchoate liability and secondary liability	1.32
The Commission's reasons for rejecting secondary liability	1.33
The first report	1.37
Retaining the doctrine of secondary liability	1.38
Reform of inchoate liability for assisting and encouraging crime	1.41
An outline of the scheme that we are recommending in this report	1.46
The overall structure	1.46
Type 1: secondary liability	1.47
Clause 1 of the Bill	1.48
Clause 2 of the Bill	1.50
Type 2: innocent agency	1.52
Type 3: causing the commission of a no-fault offence	1.54
Summary	1.55
Limitations on liability and defences	1.57
The Tyrrell exemption	1.57
Acting to prevent the commission of an offence or to prevent or limit the occurrence of harm	1.59
An overview of inchoate and secondary liability for assisting and encouraging crime	1.60
D's liability where P does not commit the principal offence	1.61
Specific defences	1.62
D's liability where P does commit the principal offence	1.63
Clause 1	1.63
Clause 2	1.66
General defences	1.67
The structure of the report	1.68
PART 2: A SUMMARY OF THE CURRENT LAW	2.1
Introduction	2.1
Secondary liability	2.2
A common law doctrine	2.2
A doctrine of general application	2.3
The forensic advantages of secondary liability	2.5
The perimeters of the doctrine of secondary liability	2.7
The derivative theory of secondary liability	2.7
Exceptions to the derivative theory	2.8
The doctrine of innocent agency	2.11
'Procuring' the commission of the conduct element of the principal offence	2.14
Secondary liability for a more serious offence than that committed by P	2.18
The conduct element of secondary liability	2.20
Assistance and encouragement	2.20
Voluntary presence at the scene of an offence	2.23
Omissions	2.25
Failure to discharge a legal duty	2.26
Failure to exercise an entitlement to control the actions of P	2.27
Causation, connection and secondary liability	2.30
Introduction	2.30
D's conduct need not cause P to commit the principal offence and need not make any difference to the outcome	2.31
Particular problems in cases where D's conduct is encouragement	2.35
Presumed encouragement	2.37
Rebutting the presumption	2.40
Procuring	2.42
The fault element of secondary liability	2.43
Introduction	2.43
D's state of mind in relation to his or her own act of assistance or encouragement	2.44
Intending the act of assistance or encouragement	2.44
Intention to assist or encourage	2.45
Belief as to whether one's conduct will in fact assist or encourage	2.46
D's state of mind in relation to the commission of the principal offence	2.47
D's attitude towards the commission of the principal offence	2.47
Knowing the essential matters of the principal offence	2.48
What are the essential matters?	2.49
The conduct element	2.51
The circumstance element	2.58
The consequence element	2.60
'The fault element of the principal offence'	2.63
What is meant by 'knowing' the essential matters?	2.64
No joint criminal venture	2.64
Joint criminal ventures	2.66
Particular problems with the law of homicide	2.70
Introduction	2.70
The law before 1997	2.72
Powell and Daniels, English	2.76
Issues arising from Powell and Daniels, English	2.81
Distinguishing actions from the intentions with which they are done?	2.81
The scope of the 'fundamentally different act' rule	2.85
The most recent guidance	2.92
No liability for not only murder but also manslaughter	2.97
PART 3: A STATUTORY SCHEME OF SECONDARY LIABILITY	3.1
Introduction	3.1
Preserving the forensic advantages of secondary liability	3.2
Reflecting the derivative theory of secondary liability	3.3
Narrowing the scope of secondary liability	3.5
Retaining the doctrine of extended common purpose	3.8
The conduct element	3.9
Clause 1: 'assisting' and 'encouraging'	3.9
The meaning of 'encouraging'	3.11
Emboldening P to commit an offence	3.12
Making threats or exerting pressure	3.14
Defining 'encouraging'	3.16
The meaning of 'assisting'	3.18
Advice as assistance	3.19
Acts of insubstantial assistance	3.21
'Actual' encouragement or assistance	3.24
Omissions as acts capable of encouraging or assisting	3.25
Proposals in the CP	3.31
Responses to the proposals in the CP	3.33
Conclusions and recommendations	3.34
Failure to discharge a duty	3.34
Failure to assist a constable to prevent a breach of the peace	3.37
Failure to exercise an entitlement to control the actions of P	3.39
Clause 2: Joint criminal ventures	3.42
'Agreed' offences	3.42
'Collateral' offences	3.46
The doctrinal issue	3.47
Negating the effect of assistance, encouragement or agreements pursuant to a joint criminal venture	3.60
The fault element	3.68
Clause 1: assisting or encouraging an offence	3.70
D's state of mind in relation to the conduct element of the principal offence	3.70
The current law	3.70
A new approach	3.75
The attitude of D towards the commission of the principal offence	3.77
Intending P to engage in the conduct element of the principal offence	3.77
The meaning of 'intent'	3.84
Must D intend that it should be P, as opposed to some other person, who commits the conduct element?	3.94
D's knowledge or belief as to whether P (or another person) will commit the conduct element	3.96
The fault required of D in relation to the essential elements of the principal offence other than the conduct element	3.98
Fault in relation to P's liability	3.104
Fault in relation to D's liability	3.109
A more demanding fault element for D than P	3.110
The same fault element for D and P	3.114
D must believe that P, in committing the conduct element of an offence, would commit the offence	3.117
Clause 2: participating in a joint criminal venture	3.123
Introduction	3.123
D's state of mind in relation to the conduct element of the principal offence	3.127
The attitude of D towards the commission of the conduct element	3.127
Should D have to believe that P (or another person) will commit the conduct element of the principal offence?	3.132
Introduction	3.133
Understanding the Chan Wing-siu principle	3.135
Judicial and academic reservations concerning the severity of the Chan Wing-siu principle	3.137
Defending the Chan Wing-siu principle	3.140
Logical incongruity	3.147
Substituting a test of foresight of probability	3.148
'Scope of the venture'	3.153
Limiting D's liability even though D intends or believes that P will or might commit the conduct element of the principal offence	3.153
Homicide offences	3.163
Transferred malice	3.164
Clause 1	3.165
The fault required of D in relation to elements of the principal offence other than the conduct element	3.167
PART 4: CAUSING OTHERS TO COMMIT OFFENCES	4.1
Introduction	4.1
'Procuring' as a basis of secondary liability	4.2
A statutory doctrine of innocent agency	4.8
The elements of the doctrine	4.8
Liability not restricted by special characteristics required of principal offender	4.9
Meaning of innocent agent	4.10
Semi-innocent agent	4.14
'Using' P to commit the principal offence	4.16
Intending to cause a person (whether P or another person) to commit the conduct element of the principal offence	4.17
'Intending' to cause	4.17
'P or another person'	4.20
Variation in the details of the conduct element	4.21
'Causing' P to perpetrate the conduct element of the principal offence	4.22
Being at fault in relation to the principal offence	4.24
Principal offences that require proof of fault	4.24
Principal offences that do not require proof of fault	4.25
Summary	4.26
Causing the commission of a no-fault offence	4.28
The elements of the offence	4.30
D does not have to cause P to commit the conduct element of the offence	4.31
The person that D intended to commit the no-fault offence need not be P	4.33
D's attitude towards the commission of the no-fault offence	4.34
PART 5: DEFENCES AND EXEMPTIONS	5.1
Introduction	5.1
Defences that we are not recommending	5.6
Acting reasonably in all the circumstances	5.6
Assistance in the course of employment	5.7
Assistance in the course of business	5.8
Defences and exemptions that we are recommending	5.9
Acting to prevent the commission of offences or to prevent, or limit, harm	5.10
The proposals in the CP	5.11
Responses to the proposals in the CP	5.12
Should those to whom the defence is available be restricted?	5.15
Should incidental offences be excluded from the scope of the defence?	5.18
A requirement of acting reasonably	5.19
Implications for conspiracy	5.22
An exemption from liability in cases of protective offences	5.24
The common law	5.24
The sexual offences Act 2003	5.26
The proposals in the CP	5.28
Responses to the proposals in the CP	5.31
Conclusions	5.32
Non-sexual offences	5.38
PART 6: EXTRA-TERRITORIAL JURISDICTION	6.1
Introduction	6.1
General principles	6.2
Our recommendation	6.12
Secondary liability	6.13
P commits the principal offence in England and Wales	6.13
P commits the principal offence outside England and Wales	6.17
D's behaviour takes place wholly or partly in England and Wales	6.17
Where an English court has jurisdiction to try P	6.18
Where an English court would have had jurisdiction to try P had P satisfied a condition relating to 'citizenship, nationality or residence'	6.21
D's behaviour takes place wholly outside England and Wales	6.23
Where D uses P as an innocent agent	6.27
P's 'offence' is committed in England and Wales	6.27
P's 'offence' is committed outside England and Wales	6.28
D's behaviour takes place wholly or partly in England and Wales	6.28
D's behaviour takes place wholly outside England and Wales	6.29
D causing P to commit a no-fault offence	6.32
Role of the Attorney General	6.34
PART 7: LIST OF RECOMMENDATIONS	7.1
Assisting and encouraging	7.1
Joint criminal ventures	7.9
Innocent agency	7.13
Causing the commission of a no-fault offence	7.14
Defences and exemptions	7.15
Extra-territorial jurisdiction	7.18
APPENDIX A: THE PARTICIPATING IN CRIME BILLS: COMMENTARY AND FULL TEXT	A
Participating in Crime Bill (Full Text)	Bill (i)
Participation in Crime (Jurisdiction, Procedure and Consequential Provisions) Bill (Full Text)	Bill (ii)
APPENDIX B: THE CURRENT LAW	B

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