The Judicial Committee of the Privy Council Decisions

History

“Whosoever shall aid, abet, counsel or procure the commission of any indictable offence … shall be liable to be tried, indicted and punished as a principal offender.”

For summary offences the corresponding provision is in section 44 of the Magistrates’ Courts Act 1980.

“Disregarding ‘procuring’, it is generally accepted that these specified modes of involvement cover two types of conduct on the part of D, namely the provision of assistance and the provision of encouragement.”

“A, B and C ride out together with intention to rob on the highway. C taketh an opportunity to quit the company, turneth into another road, and never joineth A and B afterwards. They upon the same day commit a robbery. C will not be considered an accomplice in this fact. Possibly he repented of the engagement, at least he did not pursue it; nor was there at the time the fact was committed any engagement or reasonable expectation of mutual defence and support so far as to affect him.”

In other words, on the particular facts A and B were not regarded as having committed the robbery with C’s encouragement or assistance. Any original encouragement was regarded as having been spent and there was no other assistance. (It appears from Hale’s account that C parted from A and B at Hounslow and that the later robbery took place three miles away.)

“Much hath been said by writers who have gone before me, upon cases where a person supposed to commit a felony at the instigation of another hath gone beyond the terms of such instigation, or hath, in the execution, varied from them. If the principal totally and substantially varieth, if being solicited to commit a felony of one kind he wilfully and knowingly committeth a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt. For on his part it was no more than a fruitless ineffectual temptation. The fact cannot with any propriety be said to have been committed under the influence of that temptation.

But if the principal in substance complieth with the temptation, varying only in circumstance of time and place, or in the manner of execution, in these cases the person soliciting to the offence will, if absent, be an accessary before the fact, if present a principal.”

(Emphasis added. At the time when Foster wrote, the word “fact” was used when we would use the word “act”.)

“So where the principal goeth beyond the terms of the solicitation, if in the event the felony committed was a probable consequence of what was ordered or advised, the person giving such orders or advice will be an accessary to that felony …

[Foster proceeded to give three examples. One is enough for present purposes.]

A adviseth B to rob C, he doth rob him, and in so doing, either upon resistance made, or to conceal the fact, or upon any other motive operating at the time of the robbery, killeth him. A is accessary to this murder.

…

These cases are all governed by one and the same principle. The advice, solicitation, or orders in substance were pursued, and were extremely flagitious on the part of A. The events, although possibly falling out beyond his original intention, were in the ordinary course of things the probable consequences of what B did under the influence, and at the instigation of A. And therefore, in the justice of the law, he is answerable for them.” (Foster’s emphasis)

“It is the common design or intention to kill in the prosecution of the unlawful object, whether it be misdemeanour or felony, which involves the others in the guilt of homicide. For, even if the common purpose is felonious, if only the actual perpetrator of the act had the intention to kill in the prosecution of the purpose, the others, who did not concur in the act, are not guilty of the offence of homicide.”

It will be seen that the expression “common design” is here treated as synonymous with shared intention. (It would have been more strictly accurate to add “or cause grievous bodily harm” after the word “kill”.)

“The knowledge on the part of one criminal that his companion is carrying a weapon is strong evidence of a common intent to use violence, but is not conclusive.”

“Manslaughter is unlawful killing without an intent to kill or do grievous bodily harm. Anybody who is party to an attack which results in an unlawful killing which results in death is a party to the killing.

… a person who takes part in or intentionally encourages conduct which results in a criminal offence will not necessarily share the exact guilt of the one who actually strikes the blow. His foresight of the consequences will not necessarily be the same as that of the man who strikes the blow, the principal assailant, so that each may have a different form of guilty mind, and that may distinguish their respective criminal liability. Several persons, therefore, present at the death of a man may be guilty of different degrees of crime - one of murder, others of unlawful killing, which is manslaughter. Only he who intended that unlawful and grievous bodily harm should be done is guilty of murder. He who intended only that the victim should be unlawfully hit and hurt will be guilty of manslaughter if death results.” (Emphasis added.)

“… where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that 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) that, 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 that unauthorised act.” (Emphasis added)

“It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today …

Considered as a matter of causation there may well be an overwhelming supervening event which is of such a character that it will relegate into history matters which would otherwise be looked on as causative factors.”

“The intent with which the appellant was in joint possession of the weapons with the others has to be inferred from the circumstances. He did not share the murderous intent. … The first problem for us is whether this court would be entitled to infer from the fact of joint possession an intent to do some harm to Colonel Stevenson … If men carrying offensive - indeed deadly - weapons go to a man’s house in the early hours of the morning for no discernible lawful purpose, they must, in our judgment, intend to do him harm of some kind, and the very least kind of harm is of causing fright by threats to use them. The second problem is whether, on the evidence in this case, Colonel Stevenson’s death resulted from the unlawful and dangerous act of being in joint possession of offensive weapons. The appellant did not intend either death or serious injury. On the jury’s findings O’Conaill must have gone beyond anything he may have intended ….

When two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others, they must be acquitted of murder; but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter.” (Emphasis added.)

“In the typical case [of aiding and abetting] the same or the same type of offence is actually intended by all the parties acting in concert. In view of the terms of the directions to the jury here, the Crown does not seek to support the present convictions on that ground. The case must depend rather on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend.

That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorisation, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal liability lies in participating in the venture with that foresight.”

“I can see no reason why, if half a dozen boys fight another crowd, and one of them produces a knife and stabs one of the opponents to death, all the rest of his group should be treated as accomplices in the use of the knife and the infliction of mortal injury by that means, unless there is evidence that the rest intended or concerted or at least contemplated an attack with a knife by one of their number, as opposed to a common assault. If all that was designed or envisaged was in fact a common assault, and there was no evidence that Lawson, a party to that common assault, knew that any of his companions had a knife, then Lawson was not an accomplice in the crime consisting in its felonious use.”

“26.     The narrow test of criminality proposed by the applicant is plainly unacceptable for the reason that it stakes everything on the probability or improbability of the act, admittedly contemplated, occurring. Suppose a plan made by A, the principal offender, and B, the accessory before the fact, to rob premises, according to which A is to carry out the robbery. It is agreed that A is to carry a revolver and use it to overcome resistance in the unlikely event that the premises are attended, previous surveillance having established that the premises are invariably unattended at the time when the robbery is to be carried out. As it happens, a security officer is in attendance when A enters the premises and is shot by A. It would make nonsense to say that B is not guilty merely because it was an unlikely or improbable contingency that the premises would be attended at the time of the robbery, when we know that B assented to the shooting in the event that occurred.

27.       In the present case there was ample evidence from which the jury could infer that the applicant gave his assent to a criminal enterprise which involved the use, that is the discharge, of a loaded gun, in the event that [the victim] resisted or sought to summon assistance. We need not recapitulate the evidence to which we have already referred. The jury could therefore conclude that the common purpose involved resorting to violence of this kind, should the occasion arise, and that the violence contemplated amounted to grievous bodily harm or homicide.”

“What public policy requires was rightly identified in the submissions for the Crown. Where a man lends himself to a criminal enterprise knowing that potentially murderous weapons are to be carried, and in the event they in fact are used by his partner with an intent sufficient for murder, he should not escape the consequences by reliance on a nuance of prior assessment, only too likely to have been optimistic.”

R v Slack [1989] QB 775, R v Wakely [1990] Crim LR 119 and R v Hyde [1991] 1 QB 134

“If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture.”

“If the law required proof of the specific intention on the part of a secondary party, the utility of the accessory principle would be gravely undermined. It is just that a secondary party who foresees that the primary offender might kill with the intent sufficient for murder, and assists and encourages the primary offender in the criminal enterprise on this basis, should be guilty of murder. … The criminal justice system exists to control crime. A prime function of that system must be to deal justly but effectively with those who join with others in criminal enterprises. Experience has shown that joint criminal enterprises only too readily escalate into the commission of greater offences. In order to deal with this important social problem the accessory principle is needed and cannot be abolished or relaxed.”

“… if the weapon used by the primary party is different to, but as dangerous as, the weapon which the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon, for example, if he foresaw that the primary party might use a gun to kill and the latter used a knife to kill, or vice versa.”

“Only he who intended that unlawful and grievous bodily harm should be done is guilty of murder. He who intended only that the victim should be unlawfully hit and hurt will be guilty of manslaughter if death results.”

“(1)     A person commits an offence if -

(a)       he does an act capable of encouraging or assisting the commission of an offence; and

(b)       he intends to encourage or assist its commission.

(2)       But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act.”

Section 45 creates a parallel offence if a person does such an act believing that the offence will be committed and that his act will encourage or assist his commission, but both sections are subject to a statutory defence if the defendant acted reasonably in the circumstances as he believed them to be. It is a noteworthy feature of the present law in England and Wales that Parliament has provided that foresight is not sufficient mens rea for the offence of intentionally encouraging or assisting another to commit an offence; whilst at present under Chan Wing-Siu if that other person goes on to commit the offence, such foresight is sufficient mens rea for the secondary party to be regarded as guilty of the full offence at common law. The correction of the error in Chan Wing-Siu brings the common law back into recognition of the difference between foresight and intent, consistently with Parliament’s approach in section 44(2) of the 2007 Act and more generally in section 8 of the Criminal Justice Act 1967 (referred to at para 73 above).

Restatement of the principles

Past convictions

“It should be clearly understood, and this court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction.”

Ruddock

“I told him that the female had explain (sic) to me that, told me all what they have done to her and the deceased, Pete Robinson, while they were on the beach at White House in St James.”

119.         Thirdly, and less significantly, the judge’s treatment in his summing up of what DC Spence said to Ruddock about the female in the photograph was unsatisfactory. It was potentially prejudicial. The judge should have told the jury that they had not heard from the woman, and that they should ignore altogether any reference to what she had said.