Parties to an offence and inchoate offences - Accomplices an...

Learning Outcomes

This article examines parties to an offence and inchoate offences in SQE1 criminal law, including:

• the distinction between principal offenders, secondary parties, joint principals, and liability via innocent agents
• the actus reus and mens rea elements for secondary liability, with emphasis on knowledge of essential matters and intention to assist or encourage
• the four forms of participation— aiding, abetting, counselling, and procuring— and how timing, communication, and causation differ between them
• when mere presence, association, or group membership can amount to encouragement and when it falls short of accomplice liability
• the modern approach to joint enterprise after Jogee, including conditional intent, escalation of violence, and overwhelming supervening events
• how derivative liability operates where the principal has a personal defence or where the actus reus is committed through an innocent agent
• what constitutes effective withdrawal, including communication, neutralising assistance, and the significance of timing
• the core principles of inchoate offences, focusing on attempts and the “more than merely preparatory” test
• the required mens rea for attempts, especially for result crimes such as murder and arson with intent to endanger life
• the treatment of factual and legal impossibility in attempts and how these issues are likely to appear in SQE1-style problem questions.

SQE1 Syllabus

For SQE1, you are required to understand the law relating to parties to an offence and inchoate offences, with a focus on the following syllabus points:

• 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
• the concept of derivative liability and when an accessory can be convicted where the principal has a personal defence
• the innocent agent principle (liability where a person uses another who lacks mens rea to commit the actus reus)
• timing, mental link and causation issues (e.g. encouragement at the scene versus counselling beforehand; procuring requires causation)
• withdrawal: communication, timing, and effective disengagement
• impossibility in attempts: factual impossibility versus legal impossibility

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. It also clarifies when and how liability can be derived from the commission of the principal offence, and how the law treats a person who commits the actus reus via an innocent agent.

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.

Key Term: derivative liability
The principle that secondary liability depends on the commission of the principal offence’s actus reus; an accessory may be convicted even if the principal is acquitted due to a personal defence, but cannot be convicted if the principal offence’s actus reus did not occur.

Key Term: innocent agent
A person who performs the actus reus without mens rea or under a defence (e.g. a child or someone deceived); the person who directs or uses the innocent agent can be liable as a principal.

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 (joint principals). A defendant may also be treated as a principal where they cause the actus reus via an innocent agent—for example, directing someone without mens rea to deliver a device that damages property.

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 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.

Crucially, secondary liability is derivative: it depends on the principal offence being committed (or at least its actus reus being completed). If the principal’s conduct does not amount to the actus reus of any offence, an accessory cannot be liable as an accomplice to that non-existent offence. However, if the principal has a personal defence (e.g. duress or mistake negating mens rea), an accessory may still be liable because the actus reus occurred.

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.

Aiding and abetting generally occur contemporaneously with the principal offence, whereas counselling and procuring occur beforehand. For aiding, abetting and counselling, there is no requirement to prove a causal link between the accomplice’s conduct and the principal’s act; what matters is that the encouragement or assistance reached the principal (came to their attention). In contrast, procuring requires causation—the accomplice’s conduct must be shown to have caused the principal to commit the offence.

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, remains present while a friend commits the crime, or their presence provides moral support and is intended to do so. Conversely, a passive bystander who does nothing and has no prior arrangement is not an accomplice.

Association alone with the principal (e.g. membership of the same group) is not proof of encouragement, but it can be relevant to assessing intent or risk.

Worked Example 1.1

Scenario: P and Q go to a shop together. P steals alcohol. Q stands by the door watching, having previously agreed to “keep an eye out.” When security approaches, Q signals to P and they both leave.

Answer:
Q is likely liable as an accomplice by aiding (acting as lookout) and abetting (real-time encouragement at the scene). The prior arrangement and Q’s signal indicate deliberate assistance.

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 every detail (such as the precise time or place), but awareness of the essential features is required. Two helpful ideas:

• Knowledge of the “type” of crime will suffice. If D knows the principal intends to commit burglary, it is not essential to know the exact address as long as D intends to assist a burglary.
• Where D contemplates a limited “range of crimes” (for example, robbery or burglary) and the principal commits one within that range, D’s knowledge may suffice if D intended their assistance would cover that range.

Conditional intention is relevant. If D intends to assist offence A, and also intends that the principal will commit offence B should the occasion arise (e.g. intending violence if met with resistance), the jury may infer intent to assist B as well. Conversely, mere foresight that the principal might commit B is not enough; it is only evidence from which intention may be inferred.

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.

Where violence escalates beyond the plan, liability depends on whether the secondary party intended assistance for the more serious offence. If there is no such intention (and only foresight of risk), liability for manslaughter may arise if the unlawful act carried an objectively foreseeable risk of some harm but not necessarily for murder.

The law also recognises the possibility of an overwhelming supervening event: if the principal’s act is of such a character that nobody in the accomplice’s shoes could have contemplated it and it relegates the accomplice’s earlier acts to history, the accomplice may not be liable for that further offence.

Worked Example 1.2

Scenario: D agrees to help E “teach F a lesson” (some harm). During the assault, E pulls a knife unexpectedly and stabs F fatally. D knew E sometimes carried a knife but says they hoped it wouldn’t be used.

Answer:
Under Jogee, D’s foresight that E might use a knife is only evidence of intent. If the jury is sure D intended that really serious harm (or death) be inflicted should the need arise, D may be liable for murder as an accomplice. If not, D may be liable for manslaughter if the agreed unlawful attack carried a risk of some harm and death resulted.

Worked Example 1.3

Scenario: R supplies S with a crowbar “to break into that warehouse,” intending burglary. Once inside, S sets fire to the office to cover tracks, causing aggravated arson.

Answer:
R intended burglary and aided that offence. Unless the jury is sure that R also intended that arson (endangering life) be committed should the occasion arise, R is not liable as an accomplice for aggravated arson. R’s foresight that S might cause damage is only evidence of intent, not enough by itself.

Worked Example 1.4

Scenario: T urges U to “scare V” and hands U what T says are blank cartridges. U shoots V; the rounds are live and V dies. U did not intend to kill or cause GBH.

Answer:
U may be guilty of unlawful act manslaughter (intending an unlawful assault which caused death). T, who intended that live rounds be used and death result, is liable (derivatively) as an accomplice to murder even if U, due to lack of intent to cause GBH or kill, is convicted of a lesser offence.

Worked Example 1.5

Scenario: A posts encouragement in a private group to vandalise “any one of the company’s shops” in town this weekend. B reads the post and later damages the front window of Shop X, though A never spoke to B directly.

Answer:
For counselling, there is no requirement for a direct agreement. If the encouragement reached B and A intended to encourage criminal damage, A may be liable for counselling. There is no need to prove causation for counselling; it is sufficient that the encouragement was communicated and A intended it to encourage.

Worked Example 1.6

Scenario: M attends a rally where unlawful violence breaks out. M watches silently, does not intervene, and leaves before any blow is struck.

Answer:
Mere presence is not sufficient for accomplice liability. Without prior arrangement or evidence that M’s presence was intended to encourage or did encourage, M would not be liable as an accomplice.

Worked Example 1.7

Scenario: X persuades a friend without criminal knowledge to drive a bag to a location; the bag contains a petrol bomb. The friend genuinely does not know. The device is used to cause damage.

Answer:
X can be liable as a principal via an innocent agent. By directing the actus reus through someone without mens rea, X is treated as the principal offender.

Worked Example 1.8

Scenario: A driver (P) reverses at the direction of a conductor (D). Two pedestrians are knocked down. The driver’s driving is careful but he relied on D’s careless instruction.

Answer:
If the principal offence’s actus reus (e.g. driving without due care) is not committed by the driver, D cannot be liable for aiding that offence. Secondary liability is derivative of the principal’s actus reus.

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.

Key points:

• Withdrawal must be unequivocal and communicated by words or conduct (unless communication is impossible).
• The later the withdrawal, the more will be required—mere non-attendance at the scene is often insufficient if the offence is pre-planned.
• In spontaneous violence, timely disengagement may suffice if it is clear the defendant has ceased to participate.
• Where the defendant has supplied substantial assistance (e.g. weapons), they may need to take steps to neutralise that assistance if practicable.
• Conduct that has faded into “mere background” by the time of the offence will not ground liability; whether earlier acts have effectively been spent is a question of fact and degree.

Worked Example 1.9

Scenario: H agrees to be a getaway driver for burglary. Shortly before the offence, H phones the team, tells them “I’m out,” and removes the keys. The team proceeds using a different car.

Answer:
Clear and timely communication can amount to effective withdrawal. If H had provided additional substantial assistance (e.g. specialist tools now in the team’s possession), more might be required to neutralise that assistance where practicable.

Worked Example 1.10

Scenario: J helps plan a robbery, supplies masks, and disappears on the day without telling anyone. The robbery goes ahead.

Answer:
Mere failure to turn up, with no communication, will usually not be an effective withdrawal in a pre-planned offence. J remains liable as an accomplice.

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, or entered on the “crime proper.” Whether conduct is more than merely preparatory is a question of fact, subject to the judge being satisfied there is some evidence that the threshold has been met to leave the matter to the jury. Decided cases illustrate the boundary:

• Confronting a victim with a weapon in a position to commit the offence can be more than merely preparatory.
• Standing outside premises with equipment, without entry, may be preparatory depending on proximity to the target act.
• Equipping oneself and lurking in a location (e.g. a school toilet with kidnap kit) without contact is typically merely preparatory.

Low-value shoplifting (goods under £200 offered for sale in a shop) is a summary-only offence, but statute provides a special rule that it can be attempted.

Worked Example 1.11 (existing)

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.

Worked Example 1.12

Scenario: N approaches the victim’s car, opens the door, points a sawn-off shotgun at the victim to force them out, but the victim escapes before N takes the car.

Answer:
N’s conduct has moved beyond mere preparation towards robbery; pointing the weapon and confronting the victim is more than merely preparatory. If N intended to steal, this is attempted robbery.

Worked Example 1.13

Scenario: L loiters outside a post office for 30 minutes wearing a helmet and carrying an imitation gun and a note. L does not enter.

Answer:
Without entry or any step beyond positioning himself, L’s conduct is likely merely preparatory. Attempt may not be made out on these facts.

Mens Rea for Attempt

For attempt, the defendant must intend to commit the full offence. Where the substantive offence can be committed with lesser mens rea (e.g. recklessness to damage in criminal damage), attempt requires intention to bring about the result element of the offence. Examples:

• Attempted murder requires an intent to kill (intent to cause GBH is insufficient for attempted murder).
• Attempted arson requires an intent to cause damage or destruction by fire (recklessness will not suffice for the attempt).
• Where the full offence includes an ulterior mens rea (e.g. intending or being reckless as to endangering life for aggravated criminal damage), the attempt must show intent for the primary harm (damage by fire) and at least recklessness as to the ulterior element (endangering life).

Worked Example 1.14

Scenario: R rigs electrics in a house intending to cause a fire to damage the kitchen. R hopes no one is home but recognises a risk that occupants might be inside.

Answer:
For attempted arson, R must intend to cause damage by fire. If charged with attempted aggravated arson, the prosecution must also show at least recklessness as to endangering life. R’s recognition of the risk may satisfy the ulterior element.

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. Distinguish:

• Factual impossibility (e.g. pocket is empty; gun not loaded) is not a defence to attempt.
• Legal impossibility (attempting something that is not an offence under the law of England and Wales) is a defence. For example, attempting to import a substance mistakenly believed to be illegal when it is lawful.

Worked Example 1.15

Scenario: S believes the suitcase contains prohibited drugs and carries it through customs. In fact, it contains clothing only.

Answer:
S can be guilty of attempting to import prohibited drugs. Factual impossibility is no defence; the facts are judged as S believed them to be.

Worked Example 1.16

Scenario: A adult man pre-arranges consensual sex with another adult man in England believing it to be illegal as in his home country. He loses courage and does not attend.

Answer:
This is legally impossible in England and Wales; consensual sex between adult men is not an offence. An attempt cannot be committed where the intended conduct is not criminal.

Attempt and “last act” language

While older descriptions sometimes refer to the “last act” before completion, the statutory test is “more than merely preparatory.” A defendant need not have done everything they intended to do—e.g. entering premises with burglary tools may suffice if actions show entering on the crime proper—but simply lurking nearby will not.

Worked Example 1.17

Scenario: D breaks a shop’s lock, pushes the door open, and steps inside carrying a crowbar. D is arrested at that point.

Answer:
Entry as a trespasser with tools and having commenced the break-in is likely more than merely preparatory to burglary. If D intended to steal or cause damage therein, attempted burglary is made out.

Revision Tip

Ensure you identify the specific result or circumstance elements for the offence in question. For attempt, only intention will satisfy the result element (e.g. intent to kill for attempted murder). Where the full offence includes an ulterior element, consider whether recklessness can suffice for that ulterior aspect in the attempted offence.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The difference between principal offenders and accomplices (secondary parties), including joint principals and innocent agents
• The four forms of participation: aiding, abetting, counselling, procuring; timing and causation differences (procuring requires causation)
• The mental element for secondary liability: intention to assist or encourage, and knowledge of essential matters; “type of crime” and “range of crimes”
• Joint enterprise after Jogee: foresight is evidence, not a substitute, for intent; conditional intention and overwhelming supervening events
• Mere presence is not enough for liability as an accomplice; presence can be evidence of encouragement in context
• Derivative liability: when accessories can be convicted even if the principal has a personal defence, and when they cannot because the principal actus reus did not occur
• Withdrawal must be clear, communicated, and timely; more will be required where substantial assistance has been provided or the offence is pre-planned
• Attempt requires an act more than merely preparatory and intent to commit the full offence; for attempted murder, intent to kill is required
• Impossibility is not a defence to attempt where the impossibility is factual; legal impossibility is a defence
• Special rules: low-value shoplifting can be attempted even though summary-only

Key Terms and Concepts

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