Parties to an offence and inchoate offences - Joint enterprise

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Overview

Knowing the roles in an offence, inchoate offences, and joint enterprise is essential for the SQE1 FLK2 exam. These concepts are key to understanding criminal liability in cases with multiple participants or incomplete crimes. This article delves into these principles, highlighting recent legal developments and practical applications. By understanding these ideas, aspiring solicitors will be better prepared to deal with complex criminal cases and offer sound legal advice.

Inchoate Offences: The Journey to Crime

Inchoate offences deal with criminal actions initiated but not completed, including attempts, conspiracies, and activities under the Serious Crime Act 2007. These laws aim to step in before harm occurs and hold individuals accountable for criminal intentions and preparations.

Types of Inchoate Offences

  1. Attempt: Actions geared towards committing a crime that go beyond mere preparation.

  2. Conspiracy: An agreement between people to commit a crime, even if it doesn't happen.

  3. Encouraging or Assisting Crime: Covered by Sections 44-46 of the Serious Crime Act 2007, focusing on actions that aid or encourage a crime.

Legal Framework

The Criminal Attempts Act 1981 covers attempts, while common law and the Criminal Law Act 1977 address conspiracy. The Serious Crime Act 2007 broadened the scope of inchoate liability.

Serious Crime Act 2007: Sections 44-46

  • Section 44: Intentionally encouraging or assisting a crime
  • Section 45: Encouraging or assisting a crime with the belief it will occur
  • Section 46: Believing one or more offences will be committed

These statutes shifted from the common law of incitement to a broader legal framework, capturing more preparatory criminal actions.

Case Study: R v Saik [2006] UKHL 18

In R v Saik, the issue was conspiracy related to money laundering. Saik agreed to launder funds from a robbery yet to happen. The court found him guilty of conspiracy to convert criminal property, showing how inchoate offences target preparatory actions.

Joint Enterprise: Shared Criminal Responsibility

Joint enterprise involves multiple people in a crime. This doctrine changed with R v Jogee [2016] UKSC 8.

Pre-Jogee Position

Before Jogee, joint enterprise law was based on "common purpose." If people engaged in a criminal plot, they could all be held liable for related foreseeable crimes.

The Jogee Shift

R v Jogee [2016] UKSC 8 brought major changes:

  1. Foresight of a crime is evidence, but not equated with intent.
  2. Liability requires intent to assist or encourage the crime.
  3. The "fundamental departure" rule was removed.

Post-Jogee Developments

Subsequent cases refined Jogee:

  • R v Tas [2018] EWCA Crim 2603: Introduced the idea of an "overwhelming supervening event" breaking causation.
  • R v Crilly [2018] EWCA Crim 168: Showed the retrospective application of Jogee.

Example: Applying Jogee

Imagine A and B plan a burglary. A secretly brings a knife and injures the homeowner. Pre-Jogee, B might be liable for the injury if it was foreseeable. Post-Jogee, it hinges on whether B intended to assist or encourage the harm.

Participation and Secondary Liability: The Accomplice's Role

Secondary liability concerns those who aid, encourage, or procure crimes, focusing on their awareness and intent.

Forms of Participation

  1. Aiding: Offering practical help or support.
  2. Abetting: Encouraging or prompting an offence.
  3. Counselling: Advising or instructing on committing a crime.
  4. Procuring: Ensuring someone else commits the crime.

Key Principles

  • Derivative Nature: Depends on the principal crime being committed.
  • Actus Reus: Involves actions aiding or encouraging the crime.
  • Mens Rea: Post-Jogee, intent to assist or encourage the crime's commission is necessary.

Case Study: R v Bryce [2004] EWCA Crim 1231

In R v Bryce, the court examined a getaway driver's liability. Knowing the "type" of crime was deemed enough for secondary liability, even without specific details.

Mens Rea Considerations: Intent Matters

The mental element (mens rea) is vital in establishing liability, particularly post-Jogee.

Key Principles

  1. Intention: Intent to assist or encourage the crime is crucial.
  2. Knowledge: Understanding the crime's essential elements is required.
  3. Foresight: While no longer enough for liability, it’s strong evidence of intent.

Conditional Intent

Conditional intent is relevant in joint enterprise cases. The Supreme Court noted that assisting or encouraging a crime with intent, despite hoping it won’t happen, still results in liability.

Example: Mens Rea in Practice

Consider C driving D to a location, aware of D's plan to rob, hoping they desist. C's actions likely satisfy the mens rea requirement, showing conditional intent.

Conclusion

The law on parties to an offence, inchoate offences, and joint enterprise is intricate and evolving. Jogee significantly shifted secondary liability, focusing on intent over mere foresight. For SQE1 FLK2 candidates, understanding these principles is crucial:

  1. Differences in inchoate offences and their legal bases.
  2. The impact of R v Jogee and recent case law.
  3. Elements of secondary liability and the focus on mens rea.