Parties to an offence and inchoate offences - Accomplices and secondary liability

Learning Outcomes

After studying this article, you will be able to explain how criminal liability extends beyond the principal offender to those who assist or encourage an offence. You will understand the actus reus and mens rea for secondary liability, the meaning of aiding, abetting, counselling, and procuring, and the requirements for inchoate offences such as attempts. You will be able to apply these principles to SQE1-style scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the law relating to parties to an offence and inchoate offences. Focus your revision on:

  • the distinction between principal offenders and secondary parties (accomplices)
  • the legal requirements for aiding, abetting, counselling, and procuring an offence
  • the mental element (mens rea) for secondary liability, including intention and knowledge
  • the effect of joint enterprise and the current law post-Jogee
  • the actus reus and mens rea for attempts (inchoate offences)
  • how criminal liability may arise for incomplete or assisted offences

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. What is the difference between a principal offender and an accomplice?
  2. What must be proven for someone to be liable as an accomplice to a crime?
  3. Can a person be guilty of attempting a crime if the full offence was impossible to complete?
  4. What is the effect of withdrawal on secondary liability?

Introduction

When a criminal offence is committed, more than one person may be involved. The law recognises that not only the person who directly commits the crime (the principal offender) can be held responsible, but also those who assist or encourage the commission of the offence. This article explains the rules governing secondary liability (accomplices), the requirements for inchoate offences such as attempts, and how criminal responsibility can extend to those who do not carry out the main act.

Key Term: principal offender The person who commits the actus reus of the offence with the required mens rea.

Key Term: accomplice (secondary party) A person who aids, abets, counsels, or procures the commission of an offence but does not commit the actus reus themselves.

Principal and Secondary Liability

Principal Offenders

The principal offender is the person who carries out the prohibited conduct (actus reus) with the necessary mental state (mens rea). There may be more than one principal if several people act together to commit the offence.

Secondary Parties (Accomplices)

A secondary party is someone who assists or encourages the principal offender before or during the commission of the offence. The law holds such persons equally liable for the offence if certain requirements are met.

Key Term: secondary liability Legal responsibility imposed on a person who assists or encourages the commission of an offence, even if they do not perform the main act.

Forms of Participation: Aiding, Abetting, Counselling, Procuring

The Accessories and Abettors Act 1861 sets out four ways in which a person can be liable as an accomplice:

  • Aiding: Providing assistance to the principal, such as supplying tools or acting as a lookout.
  • Abetting: Encouraging or inciting the principal at the scene of the crime.
  • Counselling: Advising or instructing the principal to commit the offence, usually before the crime.
  • Procuring: Causing the offence to happen by taking active steps to bring it about.

Key Term: aiding Assisting or helping the principal offender to commit the offence, either before or during its commission.

Key Term: abetting Encouraging or inciting the principal offender at the time the offence is committed.

Key Term: counselling Advising, instructing, or soliciting the principal to commit the offence, typically before the offence occurs.

Key Term: procuring Causing or bringing about the commission of the offence by one's actions.

Mere Presence

Mere presence at the scene is not enough for liability as an accomplice. There must be some active assistance or encouragement. However, presence can be evidence of encouragement if, for example, the person is there by prior arrangement or their presence provides moral support.

The Mental Element for Secondary Liability

To be liable as an accomplice, a person must:

  • Intend to assist or encourage the commission of the offence
  • Know the essential matters that make the principal's conduct criminal

Key Term: essential matters The facts and circumstances that make the principal's conduct an offence (e.g., that the act is unlawful, or that the victim is a person protected by the law).

Intention and Knowledge

The accomplice must deliberately assist or encourage the principal and must know the type of crime being committed. It is not necessary to know all the details, but general awareness of the offence is required.

Joint Enterprise and the Law after Jogee

Previously, foresight that the principal might commit an offence was enough for liability. The Supreme Court in R v Jogee [2016] clarified that foresight is only evidence of intent, not a substitute for it. The accomplice must actually intend to assist or encourage the principal in committing the offence.

Worked Example 1.1

Scenario: Sam gives Mark a crowbar, knowing Mark plans to break into a shop. Mark commits burglary.

Answer: Sam is liable as an accomplice for burglary. He aided the offence by providing the tool and intended to assist Mark, knowing the essential facts.

Withdrawal

A person who has assisted or encouraged an offence can avoid liability if they effectively withdraw before the offence is committed. Withdrawal must be communicated clearly, and the person may need to take steps to undo their assistance if possible.

Worked Example 1.2

Scenario: Lisa agrees to act as a lookout for a planned robbery but changes her mind and tells the others she wants no part before the crime occurs.

Answer: Lisa is not liable as an accomplice if her withdrawal is clear and timely. She must communicate her withdrawal before the offence is committed.

Exam Warning

For SQE1, remember that foresight alone is not enough for secondary liability. The accomplice must actually intend to assist or encourage the principal. Do not confuse mere presence with active encouragement.

Inchoate Offences: Attempts

Inchoate offences are those where the crime is not completed, but the law imposes liability because of the steps taken towards committing an offence.

Key Term: inchoate offence An offence where criminal liability arises for conduct that is preparatory or incomplete, such as attempt.

Attempt

A person is guilty of attempt if, with intent to commit an indictable offence, they do an act that is more than merely preparatory to the commission of the offence.

Key Term: attempt An act that is more than merely preparatory to the commission of an indictable offence, done with intent to commit that offence.

More Than Merely Preparatory

The act must go beyond preparation and show that the person has started to commit the offence proper. Whether conduct is more than merely preparatory is a question of fact.

Worked Example 1.3

Scenario: Alex tries to pickpocket a wallet from someone's coat but finds the pocket empty.

Answer: Alex is guilty of attempted theft. His actions were more than merely preparatory, and impossibility is not a defence if he intended to commit the offence.

Mens Rea for Attempt

For attempt, the defendant must intend to commit the full offence. Recklessness is not enough unless the substantive offence allows for it.

Impossibility

A person can be guilty of attempt even if the full offence was impossible to complete, as long as they intended to commit the crime and did acts more than merely preparatory.

Revision Tip

When answering SQE1 questions, always check if the person accused of secondary liability actually intended to assist or encourage the principal, and whether their actions went beyond mere presence.

Summary

Liability TypeActus Reus RequirementMens Rea Requirement
Principal OffenderPerforms actus reus of offenceHas required mens rea
Accomplice (Secondary)Aids, abets, counsels, procuresIntends to assist/encourage and knows essential matters
AttemptAct more than merely preparatoryIntends to commit the full offence

Key Point Checklist

This article has covered the following key knowledge points:

  • The difference between principal offenders and accomplices (secondary parties)
  • The four forms of participation: aiding, abetting, counselling, procuring
  • The mental element for secondary liability: intention to assist or encourage, and knowledge of essential matters
  • Joint enterprise after Jogee: foresight is evidence, not a substitute, for intent
  • Mere presence is not enough for liability as an accomplice
  • Withdrawal must be clear and timely to avoid liability
  • Attempt requires an act more than merely preparatory and intent to commit the full offence
  • Impossibility is not a defence to attempt if the defendant intended to commit the offence

Key Terms and Concepts

  • principal offender
  • accomplice (secondary party)
  • secondary liability
  • aiding
  • abetting
  • counselling
  • procuring
  • essential matters
  • inchoate offence
  • attempt
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