Parties to an offence and inchoate offences - Joint enterpri...

Learning Outcomes

This article examines joint enterprise and inchoate offences in the SQE1 context, equipping you to identify the correct basis of liability in complex multi‑party scenarios. It explains the distinction between principal offenders and secondary parties, including the four classic forms of participation (aiding, abetting, counselling, procuring) and derivative liability. It analyzes the required mens rea for secondary liability—intent to assist or encourage, knowledge of essential facts, and the treatment of foresight after R v Jogee—together with conditional intent and liability for different outcomes such as murder and manslaughter. It explores evidential and practical issues, including mere presence, association, timing and communication of assistance, causation in procuring, and effective withdrawal from participation. It reviews the concept of an overwhelming supervening event and when it breaks the chain of secondary liability. It also outlines the key inchoate offences of attempt, conspiracy, and encouraging or assisting crime, highlighting how they differ from accessorial liability, the actus reus and mens rea requirements, and the treatment of impossibility, so that you can apply these principles with precision in SQE1 problem questions.

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, with a focus on the following syllabus points:

• 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
• the role of innocent agents and how principal liability can arise through their acts
• derivative liability principles (why the principal offence must be committed for accessory liability)
• evidential issues: mere presence, association, timing of assistance, and causation in procuring
• withdrawal from participation and its requirements to avoid 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. Post-Jogee, joint enterprise is not a separate category of liability; it is simply a context in which ordinary accessorial principles apply.

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.

Key Term: innocent agent
A person who performs the actus reus without mens rea or capacity, such that the directing party may be treated as the principal offender.

Key Term: derivative liability
Liability of the secondary party that depends on the commission of the principal offence’s actus reus; without a principal offence, there can be no accessory liability.

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. Two or more actors can be joint principals when each personally performs the actus reus with the requisite mens rea, for example, two attackers both inflicting injuries during a robbery. A person who uses an innocent agent (someone lacking mens rea or otherwise not criminally responsible) to perform the physical element may also be treated as the principal, because the agent is merely instrumental in the commission of the crime.

Key Term: innocent agent
Where the actus reus is committed by someone lacking the necessary mental element or capacity, the directing party who intends the offence is treated as the principal.

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. It is sufficient that the principal offence’s actus reus was committed; the accessory’s liability does not depend on the principal’s conviction or lack of defences. If, for example, the principal is acquitted due to a personal defence, the accessory may still be liable provided the principal offence’s actus reus occurred.

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.

Aiding and abetting may occur at or around the scene; counselling typically occurs before the offence; procuring requires causation.

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.

Assistance or encouragement can be provided before or during the offence, but not after the offence is complete (post-offence acts do not ground accessory liability). Mere presence is not automatically enough; however, presence can be evidence of encouragement or assistance if it communicates support or adds to the force of numbers in a hostile confrontation. Association alone is neither proof of assistance nor encouragement.

In relation to causation:

• For aiding, abetting, and counselling, causation is not required; it suffices that the encouragement or assistance was communicated to the principal (a “connecting link”).
• For procuring, there must be a causal connection: the accessory’s conduct must have brought about the commission of the principal offence.

The prosecution must also prove that the accessory knew the essential matters that make the principal’s conduct criminal (for example, that the object stolen belonged to another, or that a weapon would be used in a violent offence). Precise details (such as exact time or location) need not be known; knowledge of the type of crime and essential features is sufficient.

Key Term: derivative liability
The accessory’s liability depends on the principal offence’s actus reus being committed; if the principal has not committed an offence, there can be no accessory liability.

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.

Worked Example 1.2

Scenario:
Marta stands in a doorway during a violent confrontation involving her associates and the victim. She says nothing, but her presence deters the victim’s friends from intervening, and the principal assaults the victim. Is Marta liable as an accessory?

Answer:
Mere presence is not automatically enough, but if Marta’s non-accidental presence communicated support and added to the force of numbers, that can amount to encouragement. If she intended her presence to assist or encourage and knew the essential facts, accessory liability may be established.

Worked Example 1.3

Scenario:
Noah secretly spikes Priya’s drink knowing she will drive home and cause criminal damage by reckless driving. Priya later crashes and damages property. Has Noah procured criminal damage?

Answer:
Procuring requires causation. By spiking Priya’s drink to produce the offence, Noah caused the principal offence to occur and, with intent to bring it about, can be liable as an accessory for criminal damage.

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.
• There is no separate category of “joint enterprise” liability; all cases involve ordinary principles of assisting or encouraging a principal offence.

Post-Jogee, the jury asks whether the defendant intended to assist or encourage the commission of the offence (including the mental element required of the principal). The defendant’s conduct may be motivated by hope that the offence will not be committed, indifference as to outcome, or mixed motives; what matters is whether the defendant intended to assist or encourage if the occasion arose.

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. A classic example is a group who confront rivals hoping for a retreat, but ready to inflict grievous bodily harm if resistance is met. If the evidence shows the accessory intended to assist or encourage the use of serious violence if necessary, conditional intent can be inferred.

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

Under Jogee, conditional intent can be inferred from all the circumstances, but cannot be equated simply with foresight of a risk.

Worked Example 1.4

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.

Liability for Different Outcomes: Murder and Manslaughter

If an accessory participates in a violent attack without intending to assist or encourage the causing of death or really serious harm, but death results, liability may be for manslaughter rather than murder. The question is whether the accessory intended to assist or encourage unlawful violence of a kind that all sober and reasonable people would appreciate involved a risk of some harm. If so, and death occurs, manslaughter may be established. If the accessory intended to assist or encourage the principal to cause death or really serious harm, murder liability can arise.

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.

The test is whether the principal’s act was of such a character that nobody in the accessory’s shoes could have contemplated it, relegating the accessory’s contribution to history. In such circumstances, the accessory bears no criminal responsibility for the escalated outcome.

Worked Example 1.5

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. If, however, C intended to assist or encourage violence if necessary, liability may follow.

Withdrawal from Participation

A participant who has previously encouraged or assisted may avoid liability if they effectively withdraw before the offence is committed. Withdrawal must be unequivocally communicated, and what is required depends on timing and the nature of the assistance. Early withdrawal may be effective through clear communication and dissuasion; withdrawal immediately before the offence may require taking all reasonable steps to prevent its commission (for instance, retrieving supplied weapons or alerting potential victims). In spontaneous violence, communication may not be possible; the focus is on whether the accessory did what they reasonably could in the circumstances to disengage.

Key Term: withdrawal from participation
An unequivocal repudiation of prior assistance or encouragement, communicated in time and, where necessary, accompanied by reasonable steps to prevent the offence.

Worked Example 1.6

Scenario:
E supplies a knife for an intended robbery but, hours before, calls off the plan and collects the knife from the principal, warning them not to proceed. The principal nevertheless commits robbery using a different weapon. Is E liable?

Answer:
E’s withdrawal was unequivocally communicated and supported by active steps (retrieving the knife). Provided the withdrawal occurred before the offence, E is unlikely to be liable as an accessory to the robbery.

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. They differ from accessorial liability, which requires the commission of a principal offence by someone else.

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. Whether conduct is “more than merely preparatory” is a matter for the judge to determine as a question of law in terms of sufficiency, and for the jury to decide on the facts. If the defendant has entered upon the crime proper or done the last act before committing the offence, the threshold is met.

The mens rea for attempt requires intent to commit the full offence. This means intention is required even where the full offence can be committed recklessly. There is a narrow exception for offences where recklessness forms part of a circumstance element of the full offence (for example, attempted rape: there must be intent to penetrate and intention or recklessness as to lack of consent).

Attempt liability is possible even where it is factually impossible to complete the full offence, provided the defendant’s acts were more than merely preparatory and they intended the full offence. For instance, attempting to import what one believes to be illegal drugs, even if the substance is innocuous, can still be an attempt, unless the act would not amount to a criminal offence even if the facts were as believed.

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

Worked Example 1.7

Scenario:
Tariq intends to steal a watch from a locked display. He uses tools to bypass security and reaches into the case, but the watch is a replica owned by him from a previous purchase and mistakenly displayed. Is Tariq liable for attempt?

Answer:
Yes. His conduct is more than merely preparatory, and he intends theft. Factual impossibility (the watch belonging to him) does not prevent attempt liability.

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. The parties need not meet physically; a chain or wheel of communication can suffice provided there is a single joint design. A person cannot conspire alone; at least two parties must agree, and certain relationships or capacities may affect liability in limited statutory contexts.

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

Conspiracy focuses on the agreement to commit the substantive offence rather than on assistance or encouragement of someone else’s offence.

Encouraging or Assisting Crime

Under the Serious Crime Act 2007, there are offences of intentionally encouraging or assisting the commission of an offence, or doing so believing the offence will be committed. The focus is on acts “capable of encouraging or assisting” the commission of the offence.

• Intentionally encouraging or assisting (s.44): requires intention that one’s act will encourage or assist the commission of an offence.
• Encouraging or assisting believing the offence will be committed (s.45): requires belief that the offence will be committed and that one’s act will encourage or assist it.
• Encouraging or assisting believing one or more offences will be committed (s.46): covers multiple possible offences believed will be committed.

Defences include acting reasonably in the circumstances (for example, where public interest or necessity justifies the conduct). These offences are distinct from accessorial liability: they do not require that any principal offence be committed. The actus reus is that the defendant’s conduct is capable of encouraging or assisting; the mens rea is either intent (s.44) or belief (s.45–46).

Key Term: encouraging or assisting crime
Doing an act capable of encouraging or assisting the commission of an offence, with the required mental state (intention or belief), regardless of whether the substantive offence occurs.

Worked Example 1.8

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 under the Serious Crime Act 2007, as E did an act capable of assisting the offence and had the necessary intent or belief. Liability does not depend on the burglary being completed.

Worked Example 1.9

Scenario:
Galen posts detailed instructions on bypassing alarm systems, intending that burglars use them. No burglary is proved to have occurred. Could Galen be prosecuted?

Answer:
Yes, under s.44 Serious Crime Act 2007 if he intended his instructions to encourage or assist burglary. The offence focuses on capability and intent; the substantive crime need not occur.

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.
• Mere presence or association is not automatically encouragement; it is evidential only and must be assessed in context.
• Procuring requires causation; aiding, abetting, and counselling require a connecting link (communication of encouragement or assistance).
• Accessorial liability is derivative: no principal offence means no accessory liability; the accessory’s liability does not depend on the principal’s conviction.
• Withdrawal from participation must be unequivocally communicated and, where necessary, supported by reasonable steps to be effective.
• Attempt requires conduct more than merely preparatory and intent to commit the full offence, subject to limited exceptions for circumstance elements; impossibility in fact does not preclude liability.
• Serious Crime Act 2007 offences criminalise acts capable of encouraging or assisting with intention or belief, regardless of completion of the substantive offence.

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
• innocent agent
• derivative liability
• withdrawal from participation