Parties to a crime


After reading this chapter you should be able to:

Understand the law of secondary liability — aiding, abetting, counselling or procuring

Understand the law of joint enterprise

Understand when secondary liability can be avoided by withdrawing

Analyse critically the rules on secondary liability and joint enterprise

Apply the law to factual situations to determine whether there is liability either as an accessory or for a joint enterprise

5.1 Principal offenders

The person who directly and immediately causes the actus reus of the offence is the ‘perpetrator’ or ‘principal’, while those who assist or contribute to the actus reus are ‘secondary parties’, or ‘accessories’. Just because two (or more) parties are involved in the commission of a criminal offence, it does not mean that one of them must be the principal and the other their accessory. They may be both (or all) principals, provided that each has mens rea and together they carry out the actus reus (see below). If D and E plant a bomb, which explodes killing V, then they are both liable as principals for homicide. This often happens where D and E carry out a robbery or burglary together, which is referred to as a ‘joint enterprise’, although it is possible to conceive of a situation whereby D and E, for example, independently attack V and the combined effect is serious injury or death. Each would be guilty of assault as principal offenders.

5.1.1 Difficulties in identifying the principal

In some cases it may be obvious that a crime has been committed by one or both of two people but it may not be clear either who is the principal or whether the other was an accessory. In such a case, both may escape liability. There was a particular problem when a child died whilst being looked after by two parents or carers. In Lane and Lane (1986) 82 Cr App R 5, evidence showed that the Lanes’ child was killed between 12 noon and 8.30 pm. Each parent had been present for some of this time and absent for some of this time. It could not be proved that one was the principal nor could it be proved that the other must have been an accessory. Both had to be acquitted of manslaughter.

This problem has now been addressed by Parliament. Section 5(1) of the Domestic Violence, Crime & Victims Act 2004, which is discussed more fully in Chapter 10, created a new offence of causing or allowing the death of a child or vulnerable adult. In Ikram and Parveen (2008) EWCA Crim 586; (2008) 4 All ER 253, which is factually very similar to Lane and Lane, the father of a one-year-old boy and the father’s partner were convicted under s 5 after the child suffered a non-accidental broken leg, which caused a fat embolism (when fat enters the bloodstream) with fatal consequences. No one else had had any contact with the child on the fateful day, so one or other of the defendants must have been responsible. However, both defendants claimed not to know how the child’s leg was broken and with no other evidence it would have been extremely difficult to convict either defendant of murder or manslaughter. Instead, they were both convicted under s 5 of the 2004 Act.

Meanwhile, if it can be proved that D, being one of two or more parties to a crime, must have been guilty as either principal or accessory, then he may be convicted. In Giannetto (1997) 1 Cr App R 1, D was convicted of the murder of his wife, V. According to the prosecution’s case, V was murdered either by D or by a hired killer on his behalf. D appealed on the ground that, if the prosecution could not prove whether he had murdered V himself or someone else had done it, he was entitled to an acquittal. The Court of Appeal dismissed the appeal. Provided, in either case, that D had the requisite actus reus and mens rea (as principal, this is causing death with intent to kill or cause really serious injury; for secondary parties, see below), then it did not matter whether he had killed her himself or encouraged another to do so.

5.2 Innocent agents

Where the perpetrator of the actus reus of a crime is an ‘innocent agent’, someone without mens rea, or not guilty because of a defence such as infancy or insanity, then the person most closely connected with the agent is the principal. So if D, an adult, employs his eight-year-old son to break in to houses and steal, the child is an innocent agent, and the father liable as principal. A well-known example of an ‘innocent agent’ acting without mens rea would be a postman unknowingly delivering a letter bomb. An example comes from the case of Cogan and Leak (1976) QB 217. L terrorised his wife into having sex with another man, C. C’s conviction for rape was quashed because his plea that he honestly believed L’s wife was consenting had not been left to the jury. L’s rape conviction was upheld on the basis that he had procured (caused) the crime to happen (see below). The Court of Appeal also considered, obiter, that L may alternatively have committed the offence as principal through the doctrine of an innocent agency. Lawton LJ said that, ‘had [L] been indicted as a principal offender, the case against him would have been clear beyond argument’.

5.3 Secondary parties

5.3.1 Actus reus of secondary parties: aiding, abetting, counselling or procuring

The law for indictable offences is set out in s 8 of the Accessories and Abettors Act 1861 (s 44 of the Magistrates‘ Courts Act 1980 provides the same for summary offences): ’Whosoever shall aid, abet, counsel or procure the commission of any indictable offence … is liable to be tried, indicted and punished as a principal offender.‘ This is a very wide definition. It should also be noted that it is possible for a secondary party to be held liable for committing an offence which they could not commit as principal. For example, a woman may commit rape as an accessory, although women cannot commit rape as principal offender (DPP v K & C (1997) Crim LR 121; see Chapter 12). A secondary party will be charged with ‘aiding, abetting, counselling or procuring’ the particular offence (murder, robbery, theft etc.) and is liable to be convicted provided that it can be proved that he participated in at least one of the four ways. The Court of Appeal has held that the words should simply bear their ordinary meaning. In Attorney-General’s Reference (No 1 of 1975) (1975) 2 All ER 684, Lord Widgery CJ said:


‘We approach s 8 of the 1861 Act on the basis that the words should be given their ordinary meaning, if possible. We approach the section on the basis also that if four ordinary words are employed here — aid, abet, counsel or procure — the probability is that there is a difference between each of those four words and the other three, because, if there were no such difference, then Parliament would be wasting time in using four words where two or three would do.’

There is considerable overlap between the four words, and it is quite possible for D to participate in more than one way.


Aiding Helping or assisting the principal, whether prior to, or at the time of, the commission of the actus reus by the principal. Typical examples: supplying information or equipment; keeping watch; acting as driver.
Abetting Encouraging the principal at the time of the offence. An example might involve a crowd of onlookers shouting encouragement to the perpetrators of an assault or rape.
Counselling Encouraging the principal prior to the commission of the actus reus. Also advising, suggesting or instigating an offence. The best-known English case involves hiring a ‘hitman’ to carry out a murder.
Procuring Used to mean ‘to produce by endeavour’. More modern cases indicate that it is enough for D to make some causal contribution to the performance by the principal of the actus reus.


As indicated above, this means to provide some assistance before or during the commission of a crime by the principal. The scope of aiding is demonstrated by the case of Robinson (2011) UKPC 3, in which D was convicted of aiding a murder committed by E by acting as a lookout/backup. E had killed two men (who were twin brothers) with a baseball bat, while D guarded the door to the room where the attack took place. The brothers‘ decomposing bodies were found a month later down a cliff. D appealed, unsuccessfully, to the Privy Council. The Court stated that aiding ’imports a positive act of assistance‘ but added that:


‘Of course, that positive act of assistance may sometimes be constituted by D2 being present, and communicating to D1 not merely that he concurs in what D1 is doing, but that he is ready and willing to help in any way required. The commission of most criminal offences, and certainly most offences of violence, may be assisted by the forbidding presence of another as back-up and support.’


The threshold of involvement is very low. The Court of Appeal in Giannetto (1996) Crim LR 722 stated that ‘any involvement from mere encouragement upwards would suffice’ for a conviction of abetting. In turn, ‘encouragement’ could be ‘as little as patting on the back, nodding, saying “Oh goody” ’. Although it is not essential for D to be present at the scene of the crime if charged with aiding, it seems that it is essential for abetting.

A remarkable example of abetting is provided by the recent Supreme Court case of Gnango (2011).


Gnango (2011) UKSC 59; (2012) 1 AC 827

One evening, Armel Gnango and a man known only as ‘Bandana Man’ engaged in a gun battle in southeast London. A young woman, Magda Pniewska, was caught in the crossfire and killed — shot once in the head by Bandana Man. Gnango was subsequently convicted of the attempted murder of Bandana Man and the murder of Magda, on the basis of joint enterprise. He successfully appealed against his murder conviction to the Court of Appeal, but the prosecution appealed to the Supreme Court. That court, sitting with seven judges, allowed the appeal, and reinstated the murder conviction — not on the basis of joint enterprise, but on the basis of secondary liability. Lord Phillips, Lord Judge CJ, Lord Dyson and Lord Wilson held that Gnango, by firing shots at Bandana Man, was simultaneously attempting to murder Bandana Man and, at the same time, aiding and abetting the attempted murder of himself. Bandana Man, meanwhile, was attempting to murder Gnango, but inadvertently shot Magda. Through the application of transferred malice, this would have made Bandana Man guilty of her murder. Finally, because of Gnango’s participation in the attempted murder of himself, and a second application of transferred malice, that made Gnango guilty of Magda’s murder. Lord Phillips explained his reasoning as follows:


‘(i) Bandana Man attempted to kill [Gnango]. (ii) By agreeing to the shoot-out, [Gnango] aided and abetted Bandana Man in this attempted murder. (iii) Bandana Man accidentally killed Miss Pniewska instead of [Gnango]. Under the doctrine of transferred malice he was guilty of her murder. (iv) The doctrine of transferred malice applied equally to [Gnango] as aider and abetter of Bandana Man’s attempted murder. He also was guilty of Miss Pniewska’s murder.’

A number of cases have raised the issue whether mere presence at the scene of the crime (as opposed to presence combined with some actions: shouting, gesticulating, etc) will suffice for the actus reus of abetting. In Coney and others (1882) 8 QBD 534, three onlookers at an illegal bare-knuckle fight were convicted of abetting assault. The Court of Criminal Appeal quashed their convictions following misdirections to the jury. The court held that, although presence alone may suffice for the actus reus, it must be combined with the culpable mental element for it to amount to the offence of abetting. Hawkins J said:


‘A man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence … or he may encourage intentionally by expressions, gestures or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime … But the fact that a person was voluntarily and purposely present witnessing the commission of a crime and offered no opposition to it … or at least to express his dissent might under some circumstances afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted.’

There have been a number of cases since. The law now is that D may be guilty of abetting via presence alone if:

His presence provided encouragement in fact.

He intended to provide encouragement through his presence.

In Allan (1965) 1 QB 130, there was no actual encouragement in fact. D was present at an affray. He was totally passive, though he had a secret intention to join in to help his ‘side’ if need be. The Court of Appeal quashed his conviction of abetting a public order offence. To hold otherwise would be tantamount to convicting D for his thoughts alone. Meanwhile, in Clarkson and others (1971) 1 WLR 1402, there was no evidence of an intention to encourage. The appellants were soldiers at a British Army barracks in Germany who had witnessed the gang rape by at least three soldiers of an 18-year-old girl. Other soldiers had clearly aided and abetted the rape by holding the girl down, but there was no evidence that two of the appellants did anything other than just watch. However, both elements were present in Wilcox v Jeffrey (1951) 1 All ER 464.


Wilcox v Jeffrey (1951) 1 All ER 464

Coleman Hawkins, a famous American saxophonist, appeared at a concert in London, iillegally (the terms of his entry into the UK being that he did not take up employment). D was the owner of a magazine, Jazz Illustrated, who had met Hawkins at the airport, jattended the concert and then written a very positive review of the concert in the jmagazine. D’s conviction for abetting Hawkins’ illegal concert was upheld, based on his voluntary presence in the crowd.

Abetting by omission

If D has knowledge of the actions of the principal, plus the duty or right to control them, but deliberately chooses not to, then he may be guilty of aiding or abetting by omission. In Du Cros v Lambourne (1907) 1 KB 40 and Rubie v Faulkner (1940) 1 KB 571, the defendants were the owners of cars who had allowed the principal to drive their cars carelessly, while they sat in the passenger seat. Both defendants were convicted of abetting road traffic offences. Presence in the vehicle, combined with (at least) the right to tell the driver what to do, was sufficient for liability. The principle is not limited to road traffic cases, as Tuck v Robson (1970) 1 WLR 741 illustrates. D, a pub landlord, had failed to get late drinkers out of his pub after closing time. D was con-victed of aiding and abetting three customers to consume intoxicating liquor out of licensed hours, contrary to the Licensing Act 1964. His presence in the pub combined with his failure to take steps to ensure the drinkers drank up and left on time was enough for liability.

Du Cros v Lambourne was confirmed in the recent case of Webster (2006) EWCA Crim 415.


Webster (2006) EWCA Crim 415

D was convicted of abetting his friend, E, in causing death by dangerous driving. E, who had been drinking all day, drove D’s car erratically and at high speed before losing control, leaving the road and crashing in a field. V, a rear seat passenger, was thrown out of the car and killed. E pleaded guilty to the substantive offence and D, who had pleaded not guilty, was convicted of abetting him by allowing him to drive his car, when E was obviously drunk. The Court of Appeal held that the crucial issue was whether D had an opportunity to intervene once he realised (because of the speed at which he was going) that E was driving dangerously. (D’s conviction was subsequently quashed because of a misdirection concerning mens rea — see section 5.3.2 below.)

In Martin (2010) EWCA Crim 1450, D was convicted of aiding and abetting a learner driver, E, to commit the offence of causing death by dangerous driving. E was driving his car under D’s supervision when he lost control and crashed headfirst into another vehicle. E and a passenger were killed. The prosecution’s case was that D had failed to instruct E to slow down before the impact. D claimed that it had not occurred to him that E’s driving just before the accident was such as to require him to give a warning. The Court of Appeal allowed D’s appeal on the basis of the trial judge misdirecting the jury. The Court took the opportunity to clarify the law in such cases. To convict, a jury would have to be sure that E (the driver) had caused death by dangerous driving; D (the supervisor) knew that E was driving in a manner which D knew fell far below the standard of a competent and careful driver; D, knowing that he had an opportunity to stop E from driving in that manner, deliberately did not take that opportunity; by not taking that opportunity, D intended to assist or encourage E to drive in that manner; and D did in fact, by his presence and failure to intervene, encourage E to drive dangerously.


In Calhaem (1985) 1 QB 808, Parker LJ said that, ‘we should give to the word “counsel” its ordinary meaning, which is … “advise”, “solicit”, or something of that sort …’ Although this is a wide definition, the scope of ‘counselling’ is subject to some limitations. In Calhaem, Parker LJ added that ‘there must clearly be, first, contact between the parties and, second, a connection between the counselling and the [offence committed]. Equally, the act done must … be done within the scope of the authority or advice and not, for example, accidentally’. The recent case of Luffman (2008) EWCA Crim 1739 provides a good example. D was convicted of counselling murder on the basis that she had asked E to murder her ex-husband, agreed to pay him £30, 000 to do it, and then pestered him to carry out the killing as quickly as possible, until he eventually did so.


Calhaem (1985) 1 QB 808

D wanted a woman, V, killed. She hired a hitman, Z, to murder V and paid a down payment of £5, 000. Subsequently, Z changed his mind about the killing but nevertheless went to V’s house armed with a hammer, knife and a loaded shotgun with the intention of pretending to kill V so that he would not forfeit his down payment. When V answered the door, Z apparently ‘went berserk’, hit V several times with the hammer and then stabbed her in the neck. Z pleaded guilty to murder and D was convicted of counselling. On appeal, she argued that the causal connection between her instigation of the crime and Z’s killing was broken when Z decided to kill V of his own accord. This was rejected and her conviction was upheld.


In Attorney-General’s Reference (No 1 of 1975) (1975), Lord Widgery CJ said that ‘to procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening’. A good example is provided by the facts of Cogan and Leak (1976), above: L clearly procured the crime of rape by terrorising his wife into having sex with C. However, recent cases have suggested that all that seems to be required now is a causal connection between D’s act and the principal’s commission of the offence. This is not inconsistent with the Attorney-General’s Reference, above, where Lord Widgery said that, ‘you cannot procure an offence unless there is a causal link between what you do and the commission of the offence’. Hence procuring means ‘causing’. In Millward (1994) Crim LR 527, D, a farmer, had given his employee, E, instructions to drive a tractor and trailer on a public road. The t ractor was poorly maintained and the trailer became detached, hit a car and killed V, a passenger in the car. E was acquitted of causing death by reckless driving (there being no suggestion that his driving was to blame), but D was convicted of procuring the offence and the Court of Appeal upheld the conviction.

In Marchant and Muntz (2003) EWCA Crim 2099; (2004) 1 WLR 442, another farmer was convicted of procuring the offence of causing death by dangerous driving after instructing an employee, E, to take an agricultural vehicle onto a public road. A motorcyclist collided with the vehicle and was killed and it was alleged that simply driving the vehicle itself on a public road was dangerous. Here D’s conviction was quashed: the vehicle was authorised for use on a public road and D had not caused the motorcyclist’s death simply by sending E out onto the public road in the vehicle, which was properly maintained. (This case is discussed further in Chapter 10.) In the Attorney-General’s Reference case, above, Lord Widgery CJ also said that ‘It may . be difficult to think of a case of aiding, abetting or counselling when the parties have not met and have not discussed in some respects the terms of the offence which they have in mind. But we do not see why a similar principle should apply to procuring …’ This proposition is still correct. D may be found guilty of procuring an offence by going against the principal’s wishes, as the facts of the Attorney-General’s Reference illustrate.


Attorney-General’s Reference (No 1 of 1975) (1975) QB 773

D surreptitiously added alcohol to the principal’s soft drink, apparently for a joke. When the latter drove home he was arrested and charged with driving under the influence of alcohol. D was charged with procuring the offence. D’s addition of alcohol to the principal’s drink was the direct cause of the offence, and would, the Court of Appeal thought, amount to procuring.

What if the principal lacks mens rea, or has a defence?

The accessory may be liable here: what is crucial is the performance of the actus reus by the principal. This was seen in Cogan and Leak, above. Lawton LJ said that C’s act of having sex with L’s wife without her consent ‘was the actus reus; it had been procured by L who had the appropriate mens rea’, namely an intention that C should have sex with her without her consent. The Court of Appeal upheld L’s conviction on the basis that he had procured the actus reus of rape (C’s lack of mens rea — he honestly thought L’s wife was consenting — was irrelevant to the question of L’s liability). The same principle was used in Millward, above. The hapless driver of the tractor trailer on the occasion of the fatality was not convicted (he lacked the mens rea of the offence), but the owner of the machinery was found guilty of procuring the offence of causing death by reckless driving. Similarly, where the principal has committed both the actus reus and the mens rea of the offence but has a defence, D remains liable. In Bourne (1952) 36 Cr App R 125, D forced his wife on two occasions to commit buggery with a dog. His conviction of aiding and abetting the offence was upheld, even though the principal, his wife, could not be convicted (had she been prosecuted), because of his duress. The actus reus (and mens rea) of buggery had been carried out.

5.3.2 Mens rea of secondary parties

The accessory must:

intend to assist, encourage, etc., the principal to commit the offence

have knowledge of the circumstances which constitute the offence


D must have intended to participate in the commission of the offence. As was noted in Chapter 3, intention is a legal concept which includes desire; foresight of consequences as virtually certain to happen is strong evidence of intent. It is enough that D intends to, for example, supply the principal with a gun; it is no defence that D is utterly indifferent as to whether the principal commits the offence or not. In National Coal Board v Gamble (1959) 1 QB 11, an abetting case, Devlin J said:


‘An indifference to the result of the crime does not of itself negative abetting. If one man deliberately sells to another man a gun to be used for murdering a third, he may be indifferent about whether the third man lives or dies and interested only in the cash profit to be made out of the sale, but he can still be an aider and abetter. To hold otherwise would be to negative the rule that mens rea is a matter of intent only and does not depend on desire or motive.’

This gives accessorial liability a very wide scope. The House of Lords discussed this issue in Gillick v West Norfolk and Wisbech AHA (1986) AC 112, a civil case.


Gillick v West Norfolk and Wisbech AHA (1986) AC 112

G was seeking a declaration that it would be unlawful for a doctor to give contraceptive advice to a girl under 16, because this would amount to aiding and abetting the girl’s boyfriend to commit the offence of unlawful sexual intercourse with a girl under 16. (This offence was found in s 6 of the Sexual Offences Act 1956, which has since been replaced by s 9 of the Sexual Offences Act 2003; see Chapter 12.) The House of Lords thought that the doctor would not be acting illegally, provided what he did was ‘necessary’ for the physical, mental and emotional health of the girl. Lord Scarman said that the ‘bona fide exercise by a doctor of his clinical judgment must be a complete negation of the guilty mind which is an essential ingredient of the criminal offence of aiding, abetting the commission of unlawful sexual intercourse’.

Subsequently, Lord Hutton approved this decision in English (1999) AC 1; (1997) 4 All ER 545; (1997) UKHL 45, saying that ‘I consider that a doctor exercising his clinical judgment cannot be regarded as engaging in a joint criminal enterprise with the girl’.


These dicta of Lords Scarman and Hutton suggest that motive can be relevant and that a ‘good’ motive provides a defence. Traditionally, however, motive is regarded as irrelevant to the imposition of criminal liability. Motive apart, what difference — in terms of liability for aiding and abetting — is there between the gun salesman interested only in cash and the doctor interested only in the girl’s best interests?

Knowledge of the circumstances

D must have knowledge of the circumstances that constitute the offence. In Johnson v Youden and others (1950) 1 KB 544, Lord Goddard CJ said:


‘Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence.’

Johnson v Youden was followed in Webster (2006) EWCA Crim 415, the facts of which were given above. The Court of Appeal allowed D’s appeal because the judge had invited the jury to consider whether D knew or ought to have realised that E was drunk. The Court of Appeal decided that this posed an objective standard instead of a purely subjective standard for D’s mens rea. The judge compounded this error by inviting the jury to consider whether D realised (or ought to have realised) that allowing E to drive was dangerous. This was not the correct question, which should have been whether D realised that E was likely to drive dangerously.

Suppose D supplies the principal with a gun — what else does D have to know before he can be held liable as an accessory to murder? The law has developed a ‘contemplation’ principle. In Bainbridge (1960) 1 QB 129, Lord Parker CJ said that it was not necessary to prove that D had ‘knowledge of the precise crime’ or ‘knowledge of the particular crime’. Conversely, it was insufficient for the prosecution to prove simply that D knew that ‘some illegal venture’ was intended. Rather, a middle ground test was devised, according to which D is liable if he had knowledge of ‘the type of crime that was in fact committed’.


Bainbridge (1960) 1 QB 129

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