#5818 - Accomplices The Doctrine Of Common Design - Irish Criminal Law

Accomplices – The Doctrine of Common Design

Criminal Law Act, 1997

s.7 Any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable...as a principle offender.

R v Bainbridge (CA 1959)

Facts

• The accused bought oxygen cutting equipment for thieves who used it to rob a bank.

• He stated that he suspected that the equipment would be used for something illegal, but was unaware of the specific use to which it would be put.

• He was charged as an accomplice to the crime

Issue

• Accessory – Level of Knowlege Required

Judgment (Lord Parker CJ)

• It is not enough that an alleged accomplice knows that some illegal act is intended with his help – likewise it is not necessary to show that the exact crime and circumstances be known to the accused.

• If the principal does not totally vary the advice or help from the accessory and does not knowingly commit a different form of felony altogether, the man who has advised, helped, aided or abbetted will be guilty as an accessory.

DPP for Northern Ireland v Maxwell (HoL 1978)

Facts

• The plaintiff was a member of a paramilitary organisation.

• On the night of the incident he drove his car in front of a car of his colleagues for the purposes of leading them to a pub, knowing that they were intending to carry out a terrorist attack, the exact nature of which he was unaware.

• They threw a pipe bomb into the pub and the accused was charged as an accomplice.

Issue

• Accessory

Judgment

• Viscount Dilhorne (concurring)

• The question in this case is, if the crime committed by the principal was one of a number of crimes that were in the contemplation of the accused, has he the guilty mind that must be proved?

• R v Bainbridge establishes that knowledge of the actual crime is unnecessary – in this case, the accused being aware that a shooting, bombing or arson could occur, aided and abetted whichever one in actuality did occur.

• Lord Hailsham of Marylebone (concurring)

• Lord Edmund-Davies (concurring)

• Lord Fraser of Tullybelton (concurring)

• The question of whether the accused is guilty as an accessory depends on the extent of knowledge he had of the plan in which he played a part – if he had full details, he would definitely be guilty, if he knew everything but the time and place this would be so.

• In this case, the accused knew that a violent attack would take place and this attack would be in the form of a murder, bombing or some other paramilitary style attack, any of which he was prepared to assist in.

• However had the attack been something outside the range of attacks which the accused had in his contemplation he would not be guilty.

• Lord Scarman (concurring)

DPP v Egan (CCA 1989)

Facts

• The accused allowed an individual to leave a van in his workshop, which arrived accompnaied by armed and masked men who had committed a robbery that the defendant was aware would take place.

• He was aware that a 'small stroke' was to take place.

Issue

• Accessory – Whether before or after the fact

Judgment (Costello J)

• When goods are stolen it is not necessary for the prosecution to establish whether the accused had knowledge of the means to be employed, the place from which the goods were to be stolen, the nature of the goods nor the time at which they are stolen – they need only establish that the accused was aware of the nature of the crime to be committed i.e. the theft of goods.

Hu Chi-Ming v R (PC 1991)

Facts

• Mr. A and a number of his friends (of which the accused was one) went to beat up a man and in doing so, killed him.

• A was carrying a length of pipe and his friends seized the man so that he could hit him with it, which resulted in his death.

• The prosecution offered to accept a plea of guilty to manslaughter from the accused, which he refused.

• He was tried for aiding and abetting murder and convicted while A was acquitted of murder and found guilty of manslaughter.

Issue

• Joint Enterprise – Whether accused can be find guilty of a greater crime that the principal

Judgment (Lord Lowry)

• The verdict in the principal's case is inadmissible in this one as it amounts to no more than the opinion of another jury.

• If B realises (though not necessarily intends) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with requisite intent, kills during the course of the venture.

• In this case, the principal's arming himself with a water pipe is unequivocal evidence of what he did contemplate and the defendant by his own admission realised that a very serious assault might occur – thus he may be guilty of murder.

R v Roberts (CA 1992)

Facts

• The accused and another man went to the house of old, reclusive man with the intention of robbing him.

• During the robbery, the man was killed by blows to the head, and each party to the crime alleged that the blows had been delivered by the other.

Issue

• Joint enterprise

Judgment (Lord Taylor)

• A person involved in a joint unlawful enterprise might be guilty of murder, if he realised, without necessarily having agreed to such conduct, that the other party might kill or intentionally inflict serious injury on the victim, yet nevertheless continued to participate in the enterprise.

• This is so regardless of whether or not weapons are carried – the only difference in the case of the carrying of weapons is that they constitute evidence that the accused did realise that death or serious injury may result.

• obiter it is doubtful whether, in the case of a person involved in a lawful joint enterprise who thinks of the risk of violence but dismisses it from his mind, such a person would be an accessory.

• In most cases, to distinguish between such cases will be unnecessary.

R v Powell (HoL 1997)

Facts

• There were two separate appeals.

• The first involved two men, one of whom shot a man on his doorstep and both of whom claimed the other had committed the act.

• The second involved two men who were beating a policeman with wooden posts, and one of whom stabbed the policeman, leading to the other man's conviction as an accessory

Issue

• Joint enterprise

Judgment

• Lord Goff of Chieveley (concurring – agreed with Lord Hutton)

• Lord Jauncey of Tullichettle (concurring - agreed with Lord Hutton)

• Lord Mustill (concurring – agreed with Lord Hutton)

• Lord Steyn (concurring - agreed with Lord Hutton)

• The established principle is that a secondary offender can be liable for a greater criminal offence which was committed by the principal, where the secondary offender foresaw that it may occur and continued to participate in the act, regardless of whether he intended that or approved of the commission of the greater crime.

• This means that the secondary offender can be convicted of the murder despite having a lesser mens rea than would be required were he principal offender – this is justified because A) the requirement that intention be proved of a secondary offender would undermine the usefulness of the accessory principle, B) it is just that liability be imposed where the secondary offender foresees that the principal will commit the actus reus with the necessary mens rea and assists him in doing so and C) joint criminal enterprises often result in situations where a greater crime that was strictly intended is committed and in order deal with such situations effectively, this principle is required.

• Lord Hutton (concurring)

• There is a strong line of authority to show that where there is a joint enterprise to commit crime, foresight or contemplation by another party that the principal may commit a greater crime is enough to convict the other party as the principal would be.

• This is even the case where the accused does not tacitly agree and possibly if he vocally disagrees.

• The contention that it is anomalous to convict an accessory for a crime for which he would lack the requisite mens rea if he were a principal has been rejected by a long line of authority.

• These authorities are supported by practical considerations of great importance – A) the accessory has helped make it possible to commit the criminal enterprise which may involve murder, B) although the secondary offender will not be placed in the situation where he must consider whether to shoot etc. someone with intent to kill or cause serious bodily harm, he will have helped create a situation where this occurs.

• However, where the primary party kills with a deadly weapon, the presence of which the secondary party is unaware this may be evidence that he did not foresee the crime – an attack with a knife is of a fundamentally different type than an attack with a wooden post.

• The test of foresight is whether the accused foresaw the act as possible, except where the risk was so remote that the jury are satisfied that the accused discounted it as negligible.

DPP v Cumberton (CCA 1994)

Facts

• The accused and the principal agreed that the accused would bring the victim to a certain place, where the accused believed the principal intended to beat him up.

• The principal in fact shot the victim with a sawn-off shotgun and the accused was charged with complicity.

Issue

• Joint Enterprise

Judgment

• The trial judge erred in failing to instruct the jury that the accused will not be guilty if the principal goes beyond what was within the common design and tacit agreement of the parties i.e. what was in the contemplation of the accused.

Attorney General v...