Parties to an offence and inchoate offences - Principal offe...

Learning Outcomes

This article outlines principal offenders and inchoate offences for SQE1, including:

• defining principal offenders through the required actus reus and mens rea, and explaining how contemporaneity and omissions can still satisfy principal liability
• distinguishing principal offenders from secondary parties by analysing aiding, abetting, counselling and procuring, and explaining the derivative nature of secondary liability and its statutory basis
• clarifying what amounts to intentional assistance or encouragement, the requirement for “knowledge of essential matters”, and why mere presence or foresight is normally insufficient
• examining joint enterprise after R v Jogee [2016], including conditional intent, overwhelming supervening acts, and effective withdrawal from a venture
• identifying how mismatched mens rea between principal and accessory can lead to different levels of liability for the same underlying conduct
• explaining the elements of attempt under the Criminal Attempts Act 1981, especially “more than merely preparatory” acts, specific intent, and recklessness where relevant to circumstances
• assessing when attempt liability can arise despite factual impossibility and when legal impossibility prevents conviction
• applying these rules to typical SQE1-style multiple-choice questions and practical scenarios, with a focus on common traps and distinctions tested in FLK2 criminal law.

SQE1 Syllabus

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

• 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
• the derivative nature of secondary liability and statutory basis (Accessories and Abettors Act 1861, s 8; Magistrates’ Courts Act 1980, s 44)
• intentional assistance or encouragement and “knowledge of essential matters” (type/range of crimes)
• key attempt issues: more than merely preparatory, intent, recklessness where relevant to circumstances, and impossibility (Criminal Attempts Act 1981)

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.

Criminal liability for a principal is established when the actus reus and mens rea of the offence coincide. Secondary liability is derivative: it depends on the principal’s commission of the actus reus of the substantive offence, though the accessory’s guilt turns on their own conduct and mental state. Joint enterprise is not a free-standing doctrine; all cases of secondary liability are assessed through the same intentional assistance/encouragement framework following R v Jogee [2016] UKSC 8. For attempts, the Criminal Attempts Act 1981 requires an act more than merely preparatory coupled with intent to commit the full offence, subject to limited exceptions on recklessness where the full offence includes recklessness as to circumstances (e.g., consent in attempted rape).

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.

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.

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. Where contemporaneity appears difficult, courts recognise continuing act or transaction scenarios so that the mens rea can coincide with a continuing actus reus (e.g., where conduct continues over time). Liability can also be founded on omissions where a duty to act arises (for example, duties arising from special relationships, assumption of responsibility, creation of danger, or statutory duties). Where two or more defendants each commit the actus reus with the requisite mens rea, they are joint principal offenders.

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.

Secondary liability is set out in s 8 of the Accessories and Abettors Act 1861 (with s 44 of the Magistrates’ Courts Act 1980 covering summary offences). The actus reus may occur before or during the commission of the principal offence (aiding can occur at the time of offence; counselling/procuring will usually be before). For aiding, abetting and counselling, there need not be strict causation, but their conduct must be communicated to or come to the attention of the principal in a way that can be linked to the offence; for procuring, however, the accessory’s act must cause the offence to come about.

Mere association with the principal or passive presence is insufficient by itself. However, presence can amount to encouragement where the circumstances show that the accessory’s non-accidental presence is intended to support the principal, contributes to “force of numbers” in a hostile situation, or is designed to signal readiness to help.

On mens rea, the accessory must know the essential matters (the facts that make the conduct criminal and that the principal will act with the required mens rea) and intend to assist or encourage the principal in committing the offence. Knowledge need not extend to precise details; it is enough to know the type of crime that will be committed or a limited range of contemplated crimes, provided the principal commits within that range. Foresight of what the principal might do is not itself sufficient; it is evidence from which intent may be inferred.

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.

Jogee makes clear that in a joint venture where the principal commits a different or more serious offence, the accessory will only be liable for that offence if they intended to assist or encourage the principal to commit that offence (including, where relevant, an intention that the principal act with the necessary mens rea). Foresight that such an offence might occur is relevant evidence but does not equate to intent. Conditional intent can satisfy the requirement, provided the jury is sure the accessory intended assistance or encouragement if the anticipated circumstance arose. Recent authority has confirmed there is no rule preventing conditional intent from including “anyone who gets in the way”; it is a jury question on the evidence.

There are limits. Where the principal commits an overwhelming supervening act—something that no accessory in the defendant’s position could have contemplated and which relegates any prior encouragement to history—the accessory is not liable for that further offence. Additionally, a secondary party may avoid liability by effective withdrawal: unequivocal communication of disengagement coupled, where necessary, with steps proportionate to their prior involvement to neutralise their assistance or encouragement.

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.

Beyond intention, consider mismatched mens rea between principal and accessory where the actus reus is shared by offences of differing gravity (e.g., murder and unlawful act manslaughter; s 18 and s 20 OAPA). The accessory’s liability aligns with their own mental state, which may be more or less serious than the principal’s, so long as the principal’s actus reus is committed.

Worked Example 1.4

Scenario:
Nora supplies a knife to Paul and urges him to “teach Vic a lesson.” Paul fatally stabs Vic, but Nora only intended a minor assault.

Answer:
Nora lacks intent for murder; her intent was to encourage only a battery. She may be liable for a lesser offence that is encompassed in the actus reus (e.g., battery or unlawful act manslaughter if she intended an unlawful and dangerous act), but not for murder unless the jury is sure she intended that level of harm.

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 in relation to a circumstantial element (for example, in attempted rape, intent to penetrate plus intention or recklessness as to the complainant’s lack of consent). Determining “more than merely preparatory” is a question of law for the judge in deciding whether to leave the count to the jury and a question of fact for the jury on whether the acts amount to an attempt in the particular case. Factors include what the defendant has already done, what remains to be done, and whether they have commenced the crime proper (for instance, performing the last act in their control).

Attempts require intent to commit the full offence. Conditional intentions (e.g., intending to steal “if there is something worth stealing”) must be handled carefully; whether they suffice depends on how the charge is framed and the elements of the substantive offence. It is not generally possible to attempt offences defined by negligence or strict liability because attempts are specific intent crimes.

Attempting the impossible is chargeable under s 1(2) Criminal Attempts Act 1981: factual impossibility is no defence where the defendant believes they are committing a criminal offence; legal impossibility (where the supposed conduct would not be criminal at all) is different and cannot ground an attempt.

Worked Example 1.5

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).

Worked Example 1.6

Scenario:
Leo dons gloves, masks his face, and places a jemmy into the doorframe of a jeweller’s to lever it open when the alarm triggers. He flees before getting the door open.

Answer:
Leo’s conduct goes beyond mere preparation. Applying the “commenced the crime proper” approach, inserting the jemmy to effect entry is more than preparatory. With intent to steal inside, he is liable for attempted burglary.

Worked Example 1.7

Scenario:
Ava tries to buy “Class A drugs” and arranges importation. The substance is not prohibited under UK law, though she genuinely believes it is.

Answer:
Ava may be guilty of attempting to import a controlled drug despite factual impossibility if, had the facts been as she believed, the conduct would be criminal. If the substance is not illegal to import at all (a legal impossibility), she cannot be guilty of an attempt.

Worked Example 1.8

Scenario:
Ravi attempts sexual intercourse with Casey, intending to penetrate, while indifferent as to whether Casey consents.

Answer:
For attempted rape, the prosecution must show Ravi intended penetration and intended or was reckless as to lack of consent. Indifference to consent is sufficient to prove the necessary mental element for the attempt.

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.

If the directed actor lacks mens rea or capacity (for example, is deceived about key facts, is underage, or is otherwise innocent), the directing party is liable as principal through innocent agency. By contrast, where the principal commits the actus reus but has a personal defence (e.g., a defence available only to them), the accessory may still be convicted based on their own culpability; the accessory’s liability is not negated by the principal’s personal defence.

Transferred malice applies where the defendant has the requisite intent for offence X against victim A but, through bad aim, commits offence X against victim B. The intent transfers provided the offence is the same in nature; it does not permit transfer across different offences with different actus reus.

Worked Example 1.9

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.

Worked Example 1.10

Scenario:
Maya, wanting to poison Pat, tells Zoe the liquid is “vitamins” and asks Zoe to give it to Pat. Zoe, believing it is harmless, administers it; Pat is hospitalised.

Answer:
Zoe is an innocent agent; Maya is treated as the principal who caused the actus reus to occur with the requisite mens rea. Maya is liable as principal for poisoning-related offences.

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; contemporaneity can be met through continuing acts where appropriate.
• Omissions can ground principal liability where a recognised duty to act exists.
• Secondary parties are liable if they intentionally assist or encourage, knowing the essential facts; liability is derivative of the principal’s actus reus.
• Aid/abet/counsel/procuring may occur before or during the offence; procuring requires causation.
• Mere presence or association is not enough; presence can constitute encouragement if intended to support or embolden the principal.
• An accessory’s knowledge must cover the essential matters; knowing the type or range of contemplated crimes may suffice where the principal commits within that range.
• Joint enterprise post-Jogee requires intention to assist or encourage the principal’s commission of the offence; foresight is evidence of intent but not intent itself.
• Conditional intent may suffice if proven; liability may be avoided by effective withdrawal, or be excluded by an overwhelming supervening act by the principal.
• Accessory and principal may be liable for different offences where the actus reus overlaps but their mens rea differs (e.g., murder versus manslaughter).
• Attempt requires intent to commit the full offence and an act more than merely preparatory; recklessness may suffice only for circumstantial elements where the full offence allows it (e.g., consent in attempted rape).
• Factual impossibility does not prevent liability for attempt where the defendant believes they are committing an offence; legal impossibility does.
• 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