Parties to an offence and inchoate offences - Joint enterprise

Learning Outcomes

After studying this article, you will be able to explain the legal principles of joint enterprise and inchoate offences, distinguish between principal and secondary liability, and apply the requirements for intent and participation in group criminal activity. You will also be able to analyse the effect of key case law, especially R v Jogee, and answer SQE1-style questions on secondary liability and joint enterprise.

SQE1 Syllabus

For SQE1, you are required to understand the law relating to parties to an offence and inchoate offences, especially as it applies to joint enterprise. Focus your revision on:

• the distinction between principal offenders and secondary parties (accomplices)
• the legal requirements for secondary liability (aiding, abetting, counselling, procuring)
• the doctrine of joint enterprise and the effect of R v Jogee
• the mental element (mens rea) for secondary liability and joint enterprise
• the concept of inchoate offences (attempts, conspiracy, encouraging/assisting)
• how intent and foresight are treated in joint enterprise cases
• the impact of an overwhelming supervening event on secondary liability

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 key difference between a principal offender and a secondary party in criminal law?
2. What must be proven for someone to be liable as a secondary party under joint enterprise?
3. How did R v Jogee change the law on joint enterprise and secondary liability?
4. What is an overwhelming supervening event, and how does it affect liability in joint enterprise?

Introduction

When more than one person is involved in a crime, the law distinguishes between those who directly commit the offence and those who assist or encourage it. The doctrine of joint enterprise addresses when multiple individuals can be held liable for the same offence, even if only one physically commits the act. Understanding the requirements for secondary liability, the mental element needed, and the impact of recent case law is essential for SQE1.

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

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

Key Term: joint enterprise A situation where two or more people act together in the commission of an offence, sharing a common purpose or plan.

Key Term: inchoate offence An offence involving steps towards the commission of a crime, such as attempt or conspiracy, where the full offence is not completed.

Parties to an Offence: Principal and Secondary Liability

In criminal law, liability is not limited to the person who physically commits the crime. Others may be liable if they intentionally assist or encourage the commission of the offence.

Principal Offender

The principal offender is the person who carries out the actus reus with the required mens rea. There may be more than one principal if several people act together to commit the offence.

Secondary Party (Accomplice)

A secondary party is someone who aids, abets, counsels, or procures the commission of the offence. Their liability is derivative: if there is no principal offence, there can be no secondary liability.

Key Term: aiding Providing assistance or support to the principal offender before or during the commission of the offence.

Key Term: abetting Encouraging or inciting the principal to commit the offence at the time it is committed.

Key Term: counselling Advising or instructing the principal to commit the offence before it occurs.

Key Term: procuring Causing or setting up the offence, so that the principal's act is a result of the accomplice's actions.

Requirements for Secondary Liability

To be liable as a secondary party, two elements must be satisfied:

1. Actus reus: The secondary party must do an act (or omission where there is a duty) that assists or encourages the commission of the offence.
2. Mens rea: The secondary party must intend to assist or encourage the principal to commit the offence, and must know the essential facts that make the act criminal.

Worked Example 1.1

Scenario:
Sam and Lee agree to break into a warehouse. Sam acts as a lookout while Lee enters and steals goods. What is Sam's liability?

Answer:
Sam is a secondary party. By acting as a lookout, he intentionally assists Lee in committing burglary. If Sam intended to assist Lee and knew the essential facts, he is liable as an accomplice to burglary.

Joint Enterprise: The Law After R v Jogee

Joint enterprise arises when two or more people act together in the commission of a crime. Historically, the law allowed for a secondary party to be convicted if they foresaw that the principal might commit an offence, even if they did not intend it. This approach was changed by the Supreme Court in R v Jogee.

The Effect of R v Jogee

R v Jogee [2016] UKSC 8 clarified that:

• Foresight that the principal might commit an offence is not the same as intent.
• Foresight is evidence from which intent may be inferred, but is not sufficient on its own.
• The prosecution must prove that the secondary party intended to assist or encourage the principal to commit the offence.

Key Term: foresight (in joint enterprise) Awareness that a consequence might occur; after Jogee, foresight is evidence of intent but not intent itself.

Conditional Intent

A secondary party may intend to assist or encourage an offence only if certain conditions arise. This is known as conditional intent.

Key Term: conditional intent An intention to assist or encourage an offence if a particular situation arises.

Worked Example 1.2

Scenario:
A and B agree to commit burglary. A plans only to steal, but B unexpectedly assaults the homeowner. Is A liable for the assault?

Answer:
After Jogee, A is only liable for the assault if the prosecution can prove A intended to assist or encourage B to commit violence. Mere foresight that B might use violence is not enough. If A did not intend violence, A is not liable for the assault.

Overwhelming Supervening Event

If the principal commits an act so different from what was intended or agreed, the secondary party may not be liable. This is called an overwhelming supervening event.

Key Term: overwhelming supervening event An act by the principal that is so extraordinary and independent that it breaks the link to the secondary party's liability.

Worked Example 1.3

Scenario:
C agrees to act as a lookout for D, who plans to commit theft. D unexpectedly commits a serious assault during the theft. Is C liable for the assault?

Answer:
If D's assault is an overwhelming supervening event—completely outside the plan and not intended or encouraged by C—then C may not be liable for the assault.

Exam Warning

In joint enterprise cases, do not confuse foresight with intent. The prosecution must prove the secondary party intended to assist or encourage the offence, not just that they foresaw it might happen.

Inchoate Offences: Attempt, Conspiracy, and Encouraging/Assisting

Inchoate offences cover conduct where the full offence is not completed, but the defendant has taken steps towards its commission.

Attempt

A person is guilty of attempt if, with intent to commit an offence, they do an act that is more than merely preparatory. The act must go beyond planning and preparation.

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

Conspiracy

Conspiracy involves an agreement between two or more people to commit a criminal offence. The agreement itself is the offence, even if the crime is not completed.

Key Term: conspiracy An agreement between two or more people to commit a criminal offence.

Encouraging or Assisting Crime

Under the Serious Crime Act 2007, it is an offence to intentionally encourage or assist the commission of an offence, or to do so believing the offence will be committed.

Key Term: encouraging or assisting crime Doing an act capable of encouraging or assisting the commission of an offence, with the required mental state.

Worked Example 1.4

Scenario:
E supplies tools to F, knowing F plans to use them for burglary. F is arrested before committing the burglary. Is E liable?

Answer:
E may be liable for encouraging or assisting burglary, as E did an act capable of assisting the offence and had the necessary intent or belief.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Joint enterprise requires proof that the secondary party intended to assist or encourage the principal to commit the offence.
• Foresight that an offence might occur is evidence of intent, but not enough on its own for liability.
• Secondary liability depends on both actus reus (assisting or encouraging) and mens rea (intent and knowledge of essential facts).
• An overwhelming supervening event by the principal can break the chain of liability for the secondary party.
• Inchoate offences include attempt, conspiracy, and encouraging or assisting crime, each with specific requirements for actus reus and mens rea.
• Conditional intent is sufficient for secondary liability if the secondary party intends to assist or encourage if certain conditions arise.

Key Terms and Concepts

• principal offender
• secondary party (accomplice)
• joint enterprise
• inchoate offence
• aiding
• abetting
• counselling
• procuring
• foresight (in joint enterprise)
• conditional intent
• overwhelming supervening event
• attempt
• conspiracy
• encouraging or assisting crime