welcome back everybody to criminal law in this lesson we're moving on to the next major topic within the sort of broader chapter on criminal uh liability and the nature of a crime and the components of criminal liability talking about an issue that is uh very important and often adds to the complexities of of of modern case law on this matter this is the question of parties to a crime or participation in criminal activity for example so we're going to move on from looking at these specific elements of criminal liability so the specific element of criminal liability of course refers to the actor race of an offense the men's rare of an offense things like strict liability recklessness intent things like omissions and causation to one of the subsidiary issues which looks at the idea of real world cases in in criminal law which is exploring circumstances where there is potentially more than one offended uh defendant sorry defendant um or offender um someone who is uh participating in in the commission of a criminal offense this is the idea of parties to a crime all textbooks on criminal law will begin this topic by defining their terms and there's one thing that you will learn about the criminal law is that there is not an agreement on the terms um in these areas so I'm going to talk about um how we're going to Define our terms in these lessons looking at parties to a crime so some books will use D to refer to a defendant and then they would use a to refer to the accessory so a secondary defendant who is an accessory to the to the crime others may use P to refer to the primary defendant or the principal defendant defendant sorry or the perpetrator and then um use D to refer to the rest of the defendants what we shall be doing is using the following terminology we will have D1 and D2 D1 being the primary defendant D2 being the secondary defendant or maybe maybe the accessory or the person who has aided and abetted for example and then just like with all the other lessons we're going to refer to the victim by using the letter V and this is how we're going to do it okay um some confusion is had when you go from textbook to textbook looking at the various different ways in which they Define their terms okay so let's think about accessory liability in more detail when we think about somebody's participation in criminal activity or the parties that can exist um in relation to um other defendants we are talking about a concept of an individual um being liable for an offense by way of something known as accessory liability this is where you catch liability you you become liable in in law and you become prosecuted because you're an accessory to the crime and the concept of liability for an accessory offense is found in Section 8 of the accessories and ab betas act um from 1861 so quite an old piece of legislation and what it says is whosoever shall Aid AET councel or procure the commission of any indictable offense whether the same be an offense at common law or by virtue of any Act passed shall be liable to be tried indicted and punished as a principal offender so what this provision does is outline a number of different ways in which you can be an accessory to a crime a number of different ways in which you can be a secondary defendant or you can be a secondary participant um this is through aiding a betting Council or procuring the commission of any indictable offense it doesn't matter what kind of offense it is whether it is a common law offense for example like murder or whether it may be a statutary offense virtue by virtue of any Act passed for example uh sexual offenses ultimately the legislation gives us the main elements we have aiding abetting counseling and procuring these are the different ways in which an individ idual may be liable as an accessory to a uh to an offense now the legislation is relatively clear in how it is established but it won't be until 2016 when we see some quite significant case law on the matter from coming from the Supreme Court and the case of crown and Joi um or or Joi um is quite interesting here because what happens is we have an appeal which in from two similar cases we have a defendant who is convicted of murder for a murder which was committed by another individual they were convicted for murder uh the the sorry they were convicted and the murder was committed on part as part of a criminal joint Enterprise the issue in this case specifically pertains to the men's reare of criminal participation because even though we're talking about accessories or or aiding and abetting we still have to think about the actus Reus and the men's Rey for these offenses and ultimately the defendant had quote foreseen that the murder would have happened on the basis of being part of this criminal Enterprise and it was held by the Supreme Court that merely foreseeing the relevant events ought not be equated with the principle of assisting or encouraging and so as a result of which you cannot be you cannot be um held liable um for SI simply being part of this criminal Enterprise at seeing or foreseeing that a murder will take place and equating that with the ACT Assistance or encouraging of an offense we'll get into the men raer in more detail in future lessons but what is important to not is that the concepts of assisting and encouraging are essentially just conceptualizations of the previously cited aiding abetting counseling and procuring which was found in the legislation so we can see here that the the language shifts slightly from aiding abetting counseling and procuring to just assisting and encouraging which is still um there are two ways in which we can still uh highlight um both the uh active contributions to the offense themselves and therefore giving rise to secondary liability but also the active encouragement of an offense um committed by a principal Defender I.E counseling and procuring welcome back everybody to criminal law in this lesson what we're going to do is talk about parties to a crime in a little bit more detail continuing this section on essentially asking the question what is a crime where does Criminal liability arise we've been thinking about things such as the actus race of an offense we've been talking about the men's rare of an offense talking about things like causation and omissions and we're now getting on to looking at this idea of secondary liability and the modes and means by which secondary liability can be obtained and that's what this lesson is going to talk about as well we're going to talk about what it means to essentially Aid and abet uh the commission of a criminal offense so this lesson is going to examine the first two actus Reus Elements which gives rise to secondary participation so there are other ways in which we can um talk about the different ways in which we can we can uh essentially contribute as a secondary party to the commission of an offense but the first two of these is this idea of aiding and abetting in the commission of a criminal offense now what do these terms mean that's the first question that we should really ask well the first one aiding essentially refers to a secondary defendant so somebody who is party to a crime U acting in a way which assists the primary defendant in the commission of an offense very simple they aid the other individual in the commission of an offense the idea of aiding need not necessarily be something which the primary defendant has knowledge or even um uh knowledge of um but this is often the case so you could have a situation where a second y defendant has aided in the commission of an offense therefore satisfying the accessus element of this particular example but have done so without the knowledge of the primary defendant they just happen to just Aid without them or without knowledge their knowledge themselves and we can have a look at the case of brown from 1968 which is actually an Australian case so be careful to cite it as as an example in a in a problem question because of course it's not binding in this country at least it gives us some kind of indication as to the the ways in which questions of this nature have been applied in common law jurisdictions and essentially we have two defendants in this case uh D1 and D2 and they had an arrangement where the secondary defendant D2 would assist the primary defendant in the commission of a murder now I've put in Brackets here that there were questions relating to the issue of duress I.E the extent to which the secondary participant was under duress in the commission of the offense but we're going to just sort of skip over that and ignore that for this particular example because we're going to talk about duress in future lessons time anyway uh D2 would provide the primary defendant with knowledge of when the victim was going to leave their room uh and they would do so by simply coughing and then this would essentially provide a signal for the primary defendant to then go and commit the murder now the question here is could something as very little as coughing um be enough to Aid in the commission of a murder and therefore give rise to criminal liability obviously being very much um significant sanctions in the case of murder could something like coughing essentially apply in this regard well the defendant was held criminally liable for aiding uh in the murder of the victim through the action of coughing and one of the reasons for this is because regardless of how little an action something like coughing can be in terms of just objectively what kind of action it is it's not doing that much in terms of helping a c an individual it is enough to Aid in the commission of the murder especially when this is a pre-arranged situation where it is pre-arranged that they have uh they have made this come to this conclusion they've come to this agreement hey I'm going to go and murder this person I need you to cough to give me a as a signal as a sign then that should be sufficient in the aiding of the murder in Commission of the murder a betting is slightly different because essentially what a betting does is refer to the encouragement of an individual to commit an offense now when it comes to the idea of encouragement and a betting in the commission of offense this is something that must be communicated to the principal defendant and the principal defendant must also obtain encouragement from it so it's not necessarily helping them out in a way uh which essentially would suggest that otherwise they would not be able to commit the offense in the same way if they if they did not have this other person aiding them it is simply essentially egging them on in a way um allowing them to have certain amount of encouragement now there are two elements that are required here for for aiding and a betting or for a betting specifically should I say um there is this idea that encouragement must be communicated to this principal defendant you can't say that this person was encouraging other person if there was no communication between the two if they were just uh if that was it there was there was nothing in terms of a link between the secondary and the primary defendant and it also must be the case that the principal defendant must obtain encouragement from whatever that communication was so not only must there be a communication but that communication must also be one which requires a certain amount of encouragement but just like in the case of aiding the idea of encouragement the idea of a betting in the commission of offense can also be a very very small act or a very very small kind of communication and if we go to the case from 1997 of ginto um we see here that a husband was told of a plan to murder his wife and I put in Brackets here quite an objectively um uncontroversial statement not a particularly happy marriage now the response to this plan uh of potentially the the murder of his wife was the quote Old goodie suggesting in this case that they were particularly happy with this idea or that they were pleased with the plan to murder his wife and it was held that the act of shouting that response to the proposition of murder to the proposition of a plan to specifically murder his wife this was sufficient for the establishment of encouragement in the commission of an offense and you can understand quite easily why this would be the case because not only can you understand the communication aspect of course that is pretty trivial in terms of uh in terms of our understanding the the response to the plan was the response of old goodie clearly communicated to the primary defendants you can also understand and it'd be quite trivial that a a husband being told of the murder plan of his wife responding with old goodie suggests at least that it would be something that he was encouraging and something that the primary victim could take encouragement from or should I say the primary defendant could take encouragement from and so as a result of all this you can understand why this was conclusive to being the abetting of an offense now when we talk about the case law on these issues we see that it's led to some interesting conclusions so for example one of the most important and leading cases on this is a case which we're going to get to in the next slide which tells us that the mere Presence at the scene of a crime just being there in and of itself without any kind of action without any kind of encouragement without any kind of of uh communication to the principal uh defendants is not sufficient to derive criminal criminal liability for aiding and abetting and the case of crown versus Clarkson is the most uh substantive in terms of in terms of understanding this particular matter so the facts of this case are as follows we have an accessory who was charged with the aiding and abetting of the rape of a woman now it was actually multiple rapes or at least mult this person was raped multiple times the victim here was uh raped three times in an army barracks where the accessory the alleged accessory and others had made the decision to enter the room and simply watch okay not a particularly Pleasant set of circumstances and from the evidence given in the trial it was there was no suggestion that there was any kind of act or any kind of communication that was um delivered by this accessory defendant uh in terms of assisting or encouraging or aiding and abetting the principal defendant in the commission of this offense they simply walked in and watched okay now it was held that the mere presence of the accessory in the room was not enough to amount to a show of encouragement without an intent to encourage and this was the case even if the principal defendant did gain encouragement from the presence in the room and the uh one of the things that is stated here is that it is in my opinion to constitute an AER and an abeta some active steps must be taken by word or by action with the intent to instigate the principle or the principles now this is a relatively controversial judgment not one that I'm particularly uh happy with in terms of how it essentially is um presented because on the one hand the idea of a betting as we know already from the earlier on in this lesson requires there to be a communication and then it requires there to be encouragement now while there wasn't communication per se say there was at the very least encouragement by the fact that being in the room and simply watching implied to the principal defendant that what they were doing was something that they were not going to stop them from doing and so would uh at all likelihood and could have in all likelihood led to them being encouraged to continue in the commission of this offense so to suggest that there could be no criminal liability for just simply sitting standing by and watching um is quite interesting but of course we know already that the criminal law and the law in general doesn't like to place liability on emissions very often emissions there has to be quite a high bar set for liability to arise from the failure to perform a certain action and so this is kind of reflective of that particular principle in the criminal law so in the previous lesson what we did was talk about the concept of aiding and abetting as part of the general idea of secondary participation in a crime in the commission of an offense this lesson is going to talk about the the next two methods by which you can act in a way that is essentially giving rise to liability as a party to the crime this is through counseling and procuring so what we're going to do is we're going to essentially do what we did in the previous lesson which we where we explored the legal principles underpinning the concepts of aiding and abetting H and we're going to talk in more detail about the second two which is of course counseling and procuring and we're going to do so in a similar way to the previous lesson we'll talk about what these things mean how they're applied in law and then illustrate this with a few different case examples so given that we're talking about counseling and procuring let's begin with the first of these this is the idea of counseling in the commission of an offense uh to counsel in the commission of offense is to essentially act as an advisor or to solicit in the encouragement of an offense before the offense takes place this is one of the things that's quite important and we we can illustrate this point by looking at the case of crown versus cim in 18 sorry from 1985 so the facts of this case are as follows the defendant in question was convicted of murder they were convicted of murder under a provision of Section 8 of the accessories and aetas act from 1861 she had acted as a counselor in the murder of the victim uh by the principal defendant so the person who was the defendant in this particular case was the quote counselor the advisor in the murder of the victim by a principal defendant who of course also was um very much uh found guilty of murder while the principal defendant um had been counseled to perform the Murder By The Accessory by this secondary person they did not go along with it at the time it was only when the victim carried on screaming that the principal defendant quote went berserk and then killed the victim okay and so at the trial level at the trial level the jury was instructed to regard the idea of counseling within the meaning of Section 8 of the of the accessories and aetas act from 1861 uh to essentially mean inciting soliciting or authorizing uh uh a would then appeal her conviction so this principle this secondary defendant Sor in this case would um would would uh appeal the conviction on the basis that she argued there was not a causal connection between her counseling and the ultimate reason uh P committed the murder so when we get to then the court of appeal um the court of appeal argued that the act of counseling did not require this kind of causal connection they argued that the trial judge was in fact correct in delivering the direction to the jury Visa what constituted the counseling itself so this is quite interesting here so the the the court of appeal makes it very clear that in order to essentially come to a determination as to what counseling refers to within the context of Section 8 of the aers and accessories and netas act um they look towards um including within the idea um to be read in conjunction with the idea of inciting soliciting and authorizing and so this is what it essentially means to be a counselor in in the commission of some kind of criminal offense procuring is slightly different because procuring is actually incredibly Broad and could actually arise in a huge variety of circumstances a procurer will cause a crime to be committed for example uh and this is exactly really what the the general understanding of what procuring is to mean within the context of of this particular area so causing a crime to be committed is something of a very Broad U mandate and could involve a whole host of different things procurement may be incredibly active in in terms of things done so it could be a being very much within the uh within the context of the crime getting involved quite heavily in the in the procuring of the offense it could also be incredibly innocuous uh but still result in the crime being caused in addition to this an accessory may still be liable for procurement even if the principal defend is acquitted this is often done on the basis of duress so they can claim that they are they are found not guilty on the basis of self of of the defense of of duress um but that would still and could still mean that the accessory be liable for the procurement of the offense even if the concept of duress is valid in a particular circumstance let's illustrate this by looking at AG references uh the first of uh The 1975 case in this case uh the accessory had been lacing the principal the principal defendant with drinks um with additional measures of spirits okay they had done so with the knowledge that the principal defendant would be driving home so they knew that this person was going to be driving home and so as a result of which deliberately laced the principal defendants' drinks with more Spirits than um than than necessary essentially which meant that the principal defendant not only didn't know how much they had drunk but also would get drunk incredibly quickly they would then charged as an accessory of the offense of driving with excess alcohol which is under Section six subsection one of the Road Traffic act from 1972 so of course the the principal defendant was driving under the influence of of excessive alcohol and therefore was charged under this particular provision of the Road Traffic act but the the the the accessory uh was was charged by as an accessory for procuring and essentially causing this to take place the court of appeal was tasked with examining whether or not there was a requirement for some kind of quote mental link between the two in procuring the offense okay this was an argument which was presented by the trial judge I.E there is a mental link there is a some kind of connection between the accessory and the principal in terms of the commission of the offense because at the moment and in this case specifically the principal defendant did not know that the accessory had been lacing the uh the principal drinks with extra measures of spirits it was held that the following was true given the words their ordinary meaning in English and asking oneself whether in those circumstances the offense has been procured we are in no doubt that the answer to that is that it has it has been procured because unknown to the driver and without his collaboration he has been put in a position in which in fact he has committed an offense which he never would have committed otherwise so this is really given the broad scope in which procuring is is is measured it is talking about the concept of bringing an offense bringing about an offense essentially bringing uh something which would essentially essentially causing the offense to take place and so the result of this means that there does not necessarily require this mental link between the two in the procuring of the offense between the principal the accessory which was an argument which was presented by the trial judge welcome back ladies and gentlemen to our study of the criminal law We are continuing talking about the concept of parties to a crime the idea of secondary liability for the commission of an offense um we're going to talk in this lesson about the concept of derivative liability which is an interesting element of the criminal law and the ideas that are related to it we will illustrate the concept of derivative liability using a number of different cases and then following this we're going to actually start to look at not the basic principles of criminal law and procedure but now the substantive crimes themselves which are part of our study so this is our final lesson exploring parties to a crime and we're going to talk about derivative liability what does derivative liability actually mean and how is it applied in the circumstances that we are going to be examining well it refers to a situation where you can have a uh a being an accessory to the crime or a secondary defendant or a a participant to criminal liability where where a situation such as a can be convicted of an offense as a participant even in a circumstance where the principal defendant had not been convicted now common and ordinary understanding might suggest that in order for you to be a secondary participant to a crime it must be the case that you have a primary or principal defendant who is actually convicted of a similar offense this is no longer the case and this isn't the case owing to this idea of derivative liability if you're an accessory to an offense it doesn't sometime it is sometimes the case should I say that it doesn't necessarily matter if the principal defendant is or is not convicted the idea here is that so long as you can show the actus Reus of the principal offense that is committed by the principal defendant then the idea of derivative liability could hold what this does is is it essentially allows for the act itself to have some sort of liability even if they may not have been the prerequisite men's rare that exists in the case of the principal defendant but that would automatically give rise to liability for an accessory to the crime owing to this concept of derivative liability so to show secondary participation in that regard therefore there only need to be proof of the actus Reus of a principal offense and one example which can illustrate this case quite nicely is the idea from Thornton and Mitchell from 1940 in this case the principal defendant defendant sorry was a bus driver who was charged with the offense of driving without care and attention the principal defendant had hit two pedestrians in the bus upon the Reliance of the instructions which were provided by an accessory um by we we'll call a or D2 so essentially the the the scene that we're setting here is that you have an accessory who is trying to essentially provide instructions to a bus driver and the bus driver is then following the clear instructions of this accessory defendant and in doing so accidentally or at least in doing so or following the uh instructions of this secondary defendant hits two pedestrians with their bus a had been careless in the information provided to the driver despite the fact that the principal defendant was trying to act responsibly and so we have this question here is well if they were trying to act responsibly but were doing so under faulty pretenses on the basis of the fact that they were given faulty information by this accessory then can they be charged with the offense of driving without care and attention it was held that because the principal defendant had paid careful attention not necessarily to their driving but to the instructions that had been given by the accessory he could not be convicted of driving without care and attention there was not this prerequisite men's Rea that was uh present this is the case even though they had driven into some pedestrians owing to the fact that the accessory had been careless in their analysis A further case comes uh in 1976 with the case of kogan and leak the fact of this case are as follows it was a case which involved non-consensual sexual activity between the principal defendant p and somebody else's wife the wife the victim had been bullied into having sexual intercourse with this principal defendant by her husband the accessory a so the accessory a was married to the victim and had bullied and harassed and had been particularly um unpleasant towards his wife the victim and bullied her into having sexual intercourse with this principal defendant now the issues here are quite interesting because the principal defendant could not be guilty of non of having non-con sexual activity I.E rape or or any of the other offenses that are listed owing to the fact that he had reasonable belief that the sexual intercourse in question was consensual he had not known about the fact that the accessory had been bullying his wife into having sexual intercourse with him and so therefore lacked the necessary men's R but he still had the act as Reus he still committed the offense by I committed the action I said say being more precise with my language by having sexual activity with the victim and it was held that even though the principal defendant could not be guilty of the offense the fact that the uh the accessory had bullied the individual into the the wife the victim into having sexual intercourse with P that meant that a was actually guilty on the basis that he procured the offense so even though P was not guilty a was guilty on the basis of derivative liability it was D derivative on the actus Reus of the offense the actus Reus can be shown to be proven even if the men's reyer for PE liability could not and so despite the fact that P not be was not guilty he still did perform the relevant act as Reus which would have been required to prove non-consensual sexual activity um even before the sexual offenses act which was obviously where this case is coming from but the liability is derived not from the men's rare of the offense it is derived from the actus Reus itself the final thing I want to touch on when we look at parties to a crime is this idea of ending or finishing or withdrawing from participation what if you have a situation where you plan to commit some kind of criminal offense and you or you plan and you are are fully intending to be involved in the commission of a criminal offense but then you decide against it either before or during the commission of set offense and this is Rel related to the idea of withdrawing from participation how far do you have to go to withdraw from participation such that you therefore no longer have any kind of liability now that's an interesting question and difficult one to reconcile namely because the accessory to a crime has to make it incredibly clear of their intention to withdraw from participation if this happens then it is possible for an accessory to actually avoid liability in entire in its entirety as a party to the crime now if this is before the commission of the offense then it could be said that it is easier to avoid uh liability if it is during the commission of the offense the general rule should be that the the the clearer the intention to withdraw uh the the the more likely it is that you're going to avoid liability and in illustrating this point I want to just talk about the 1984 case of Whitefield in this case there were a number of individuals together who made a plan to commit a burglary at some point in this process of of making this plan the accessory someone who was part of the plan to commit the bur burglary had made the decision that they did not want to go through with the planned um Commission of the offense and they made this decision very clear to the other participants involved in the commission of the offense the other participants would essentially just leave him behind and decide to go on and commit the offense without him a would be charged as an accessory but then would appeal his conviction on the basis they were notified or they had notified their intention to withdraw from the commission of the offense and this appeal was allowed and the reason why this appeal was allowed was because he made it very clear of his intention to withdraw from participation and this was done actually before the commission of the offense in question