Parties to an offence and inchoate offences - Principal offenders

Learning Outcomes

After reading this article, you will be able to explain the legal definition and requirements for principal offenders, distinguish between principal and secondary liability, and apply the rules for inchoate offences such as attempts. You will also understand the significance of actus reus and mens rea, joint enterprise, and the impact of recent case law for SQE1 assessment.

SQE1 Syllabus

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

• the definition and elements of principal offenders (actus reus and mens rea)
• the distinction between principal and secondary liability (aiding, abetting, counselling, procuring)
• the requirements for inchoate offences, especially attempts
• the concept of joint enterprise and conditional intent
• how to apply these principles to SQE1-style MCQs and client scenarios

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 are the two essential elements required to establish liability for a principal offender?
2. Which of the following best describes the difference between a principal and a secondary party?
3. In what circumstances can a person be liable for an attempted offence?
4. True or false? Mere foresight that a co-defendant might commit an offence is enough for secondary liability after R v Jogee [2016].

Introduction

When analysing criminal liability for the SQE1, it is essential to distinguish between those who directly commit an offence (principal offenders), those who assist or encourage (secondary parties), and those who attempt but do not complete an offence (inchoate offences). Understanding the requirements for each role, and how recent case law has clarified the law, is critical for the exam.

Principal Offenders: Actus Reus and Mens Rea

A principal offender is the person who carries out the prohibited conduct of an offence and possesses the required mental state.

Key Term: principal offender The individual who performs the actus reus of an offence with the necessary mens rea.

Key Term: actus reus The physical element of a crime—an act, omission, or state of affairs required by the offence.

Key Term: mens rea The mental element of a crime—intention, recklessness, knowledge, or, in some cases, negligence.

To be liable as a principal, both actus reus and mens rea must be present at the same time. For most offences, this means a voluntary act or omission (where a duty exists) accompanied by the relevant mental state.

Worked Example 1.1

Scenario:
Sam deliberately sets fire to a warehouse, intending to destroy it. The fire spreads and causes extensive damage.

Answer:
Sam is a principal offender. He performed the actus reus (setting fire) and had the mens rea (intention to destroy property).

Secondary Liability: Assisting or Encouraging

A person who does not carry out the offence but helps or encourages the principal may be liable as a secondary party.

Key Term: secondary party A person who aids, abets, counsels, or procures the commission of an offence by the principal.

Key Term: aiding Assisting or helping the principal to commit the offence.

Key Term: abetting Encouraging or inciting the principal to commit the offence at the time of commission.

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

Key Term: procuring Causing the offence to happen by one's actions.

To be liable as a secondary party, the person must intentionally assist or encourage the principal and know the essential facts of the offence. Mere presence at the scene is not enough unless it is intended to encourage.

Worked Example 1.2

Scenario:
Alex drives Jamie to a shop, knowing Jamie intends to rob it. Alex waits outside as a getaway driver.

Answer:
Alex is a secondary party. By intentionally assisting (driving and waiting), with knowledge of Jamie's plan, Alex is liable for the robbery.

Joint Enterprise and Conditional Intent

Joint enterprise arises when two or more people act together with a shared purpose to commit an offence. After R v Jogee [2016], it is clear that foresight alone is not enough—there must be an intention to assist or encourage the crime.

Key Term: joint enterprise A situation where two or more people act together with a shared intention to commit an offence.

Key Term: conditional intent Intending to assist or encourage an offence if certain circumstances arise.

Exam Warning

For SQE1, remember: After R v Jogee [2016], a person is only liable as a secondary party if they intended to assist or encourage the principal, not merely because they foresaw the possibility of the offence.

Worked Example 1.3

Scenario:
Taylor and Morgan agree to break into a house to steal. Taylor says, "If anyone is home, use force if you have to." Morgan enters and assaults the occupant.

Answer:
Taylor may be liable for the assault if it is shown that he intended force to be used if necessary (conditional intent), not just that he foresaw it.

Inchoate Offences: Attempt

Inchoate offences cover incomplete crimes. The most common for SQE1 is attempt.

Key Term: attempt When a person, with intent to commit an offence, does an act that is more than merely preparatory to the commission of the offence.

To be guilty of attempt, the defendant must intend to commit the full offence and do something more than mere preparation. Recklessness is not enough unless the substantive offence allows it.

Worked Example 1.4

Scenario:
Priya plans to burgle a shop. She brings tools and tries to force the door but is interrupted by police before entering.

Answer:
Priya is guilty of attempted burglary. She intended to commit burglary and did an act more than merely preparatory (trying to force entry).

Innocent Agents and Transferred Malice

Sometimes, a person uses another (an innocent agent) to commit the actus reus. The person directing the act is treated as the principal.

Key Term: innocent agent A person who commits the actus reus without the required mens rea or capacity, acting under the direction of another.

Key Term: transferred malice The principle that the defendant's intent can transfer from the intended victim to the actual victim if the actus reus and mens rea coincide for the same offence.

Worked Example 1.5

Scenario:
Jordan throws a stone intending to hit Lee but misses and hits Sam, causing injury.

Answer:
Jordan's intent to harm Lee transfers to Sam. He is liable for the injury to Sam under transferred malice.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Principal offenders must perform the actus reus with the required mens rea.
• Secondary parties are liable if they intentionally assist or encourage, knowing the essential facts.
• Joint enterprise requires intention to assist or encourage, not mere foresight.
• Conditional intent can make a person liable if they intend to assist if certain circumstances arise.
• Attempt requires intent to commit the full offence and an act more than merely preparatory.
• Innocent agents are not liable; the person directing them is treated as the principal.
• Transferred malice allows intent to transfer to an unintended victim if the offence is the same.

Key Terms and Concepts

• principal offender
• actus reus
• mens rea
• secondary party
• aiding
• abetting
• counselling
• procuring
• joint enterprise
• conditional intent
• attempt
• innocent agent
• transferred malice