Learning Outcomes
After reading this article, you will be able to identify and explain the legal status of principal and secondary parties to a criminal offence in England and Wales, define and distinguish between the roles of principals, accessories, and joint enterprise, and apply the requirements of actus reus and mens rea for secondary liability. You will also be able to recognise the practical and exam significance of key terms such as aid, abet, counsel, procure, and joint enterprise.
SQE2 Syllabus
For SQE2, you are required to understand the law relating to parties to a criminal offence for both application and advice. You should focus in your revision on:
- The definition and role of principal offenders (including joint principals)
- The definition and role of secondary parties (accessories), and the four key types of assistance or encouragement (aid, abet, counsel, procure)
- The requirements for actus reus and mens rea for secondary liability
- The concept of joint enterprise and its current legal basis post-Jogee
- Application to practical scenarios, including issues of mere presence and withdrawal
- The distinction between accessorial liability and inchoate offences
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.
- Name the four statutory types of secondary party conduct that may incur accessory liability.
- True or false? An accessory can be convicted even if the principal offender is acquitted, so long as the actus reus of the offence is established.
- What is the current mens rea test for secondary liability following the Supreme Court’s decision in R v Jogee?
- In an exam scenario, what key facts would indicate that a mere bystander might be criminally liable as an accessory?
Introduction
When a crime is committed, more than one person may be criminally liable. As well as the principal (main perpetrator), criminal law recognises liability for those who assist or encourage the crime—these are called accessories, or secondary parties. This article outlines the different types of parties to a criminal offence, the requirements for secondary liability, and the practical issues you must be able to address for the SQE2 exam.
Key Term: principal offender
The person who actually commits the actus reus of the offence, satisfying both the conduct and the required mental element (mens rea).Key Term: secondary party (accessory)
A person who aids, abets, counsels, or procures the commission of the offence by the principal but does not themselves perform the actus reus.
Classification of parties to an offence
Criminal law distinguishes between principal offenders, who perform the criminal act, and secondary parties, who assist or encourage. There can also be joint principals, where two or more people together perform all or part of the actus reus with the necessary mental state.
Key Term: joint principal
Where two or more persons share the essential conduct and intention of the offence and so are each liable as principals.
Secondary liability: aid, abet, counsel, procure
The main route to accessory liability is found in section 8 of the Accessories and Abettors Act 1861, which applies to indictable (and either-way) offences. Four forms of conduct are recognised in statute:
Key Term: aid
To assist or help the principal to commit the offence.Key Term: abet
To encourage or incite the principal to commit the offence.Key Term: counsel
To advise, solicit, or persuade the principal to commit the offence.Key Term: procure
To cause something to happen by effort.
These terms overlap in practice. Only one is required, but “aid, abet, counsel, or procure” is often charged collectively.
Requirements for secondary liability
There are two core requirements:
- Actus reus: The accessory must provide assistance or encouragement (by aid, abet, counsel, or procure) before or during the offence.
- Mens rea: The accessory must intend to assist or encourage the principal to commit the offence, with knowledge of the essential matters making it criminal.
Key Term: actus reus (secondary liability)
Assistance or encouragement by words or conduct, which must relate to the commission of a specific offence.Key Term: mens rea (secondary liability)
An intention to assist or encourage the criminal act, with knowledge of the key facts of the offence.
Mere presence and encouragement
Mere presence at the scene is not usually enough for liability, but it may be evidence of encouragement if coupled with facts showing support, approval, or readiness to assist. The courts look for “participation”—active steps, not just passive attendance.
Withdrawal
A secondary party can escape liability if they take reasonable steps to withdraw before the offence is committed. The later the withdrawal, the more effort required.
Key Term: withdrawal (secondary party)
Effective communication and possible intervention by the accessory to prevent the offence, which is required to avoid liability once assistance or encouragement has been given.
Joint enterprise (parasitic accessory liability)
Joint enterprise liability arises where two or more people agree to commit a crime. The law now requires that each participant intends the commission of the principal offence and the necessary mental element, not merely foresight that it might occur.
Key Term: joint enterprise
Where two or more parties act with a shared intention to commit a crime, each is liable for acts that fall within that shared intention.
Worked Example 1.1
Scenario: Laura and Pete plan to rob a shop together. Pete enters the shop and steals the money. Laura waits outside in the car and drives him away.
Question: Is Laura a principal or an accessory, and what is the basis of her liability? Answer:
Laura is an accessory (secondary party). She aids Pete by acting as the getaway driver, which is assistance before or during the commission of the robbery. If she intended to assist Pete and knew he was robbing the shop, she is criminally liable as an accessory to robbery.
Worked Example 1.2
Scenario: Ravi attends a brawl but does not participate. He stands with his arms folded, watching silently, after arriving with the main attackers.
Question: Could Ravi be criminally liable as an accessory? Answer:
Possibly. If the prosecution can prove, beyond being merely present, that Ravi’s presence encouraged the attackers (for example, he arrived with them, stood close by, did not object, or was available to assist), this could amount to abetting. The court would also require evidence that Ravi intended his presence to be encouragement.
Worked Example 1.3
Scenario: Anya buys petrol for Mark, knowing he will use it to commit arson. She believes his intention is only to burn an abandoned shed, not a house with people inside. Mark sets fire to an occupied house and people are injured.
Question: Is Anya liable for the aggravated offence? Answer:
Anya will only be liable for the aggravated (endangering life) arson if she intended assistance for such an offence and knew that the facts would potentially endanger life. If her knowledge or intention was limited to simple arson, her liability is restricted accordingly.
Exam Warning
For SQE2, always check whether the facts show the accessory acted with the intent to assist or encourage the particular crime and with knowledge. Foresight that a more serious offence might occur is not enough for liability unless the facts also show conditional intention to support that offence.
Application: Inchoate offences distinguished
Inchoate offences (attempts, conspiracy, encouragement/assistance under the Serious Crime Act 2007) are distinct from accessorial liability. Accessories require a completed criminal act by the principal; inchoate offences do not.
Key Point Checklist
This article has covered the following key knowledge points:
- The principal offender commits the conduct required for the criminal offence.
- Secondary parties (accessories) become liable by aiding, abetting, counselling, or procuring the commission of the offence, with intent and knowledge.
- Joint principal liability arises where two or more people perform all or an essential part of the actus reus with the requisite mental elements.
- Joint enterprise liability now requires intention, not mere foresight.
- Mere presence at the scene is generally not enough for accessory liability, but may be evidence of encouragement in some circumstances.
- Effective withdrawal is possible but must be actively communicated and/or acted upon before the offence is committed.
- Accessorial liability requires the principal's commission of the actus reus (not necessarily a conviction); inchoate offences do not.
Key Terms and Concepts
- principal offender
- secondary party (accessory)
- joint principal
- aid
- abet
- counsel
- procure
- actus reus (secondary liability)
- mens rea (secondary liability)
- withdrawal (secondary party)
- joint enterprise