Participating in crime

Law of the United Kingdom and Ireland > England and Wales > KD7864

Edition Details

Creator or Attribution (Responsibility): Great Britain. Law Commission
Language: English
Jurisdiction(s): England
Publication Information: London : Stationery Office, [2007]
Material: Internet resource
Type: Book, Internet Resource
Series title: Law Com. (Series), no. 305.
Permalink: https://books.lawi.org.uk/participating-in-crime/ (Stable identifier)

Short Description

X, 222 pages ; 30 cm.

Purpose and Intended Audience

Useful for students learning an area of law, Participating in crime is also useful for lawyers seeking to apply the law to issues arising in practice.

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Bibliographic information

Responsable Person: presented to the Parliament of the United Kingdom by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty.
Publication Date: 2007
Country/State: England
Number of Editions: 6 editions
First edition Date: 2007
Last edition Date: 2007
General Notes: “May 2007.”
Languages: British English
Library of Congress Code: KD7864
Dewey Code: 345.03
ISBN: 0101708424 9780101708425
OCLC: 137292377

PART 1: INTRODUCTION 1 i1
The problems with the current law of secondary liability 1 5 2
General problems 1 5 2
Parity of culpability 1 5 2
Joint criminal ventures 1.10 3
A doctrine characterised by uncertainty and incoherence 1.12 4
Specific problems 1.14 5
D’s state of mind in relation to the commission of the 1.15 5
principal offence
Liability for omissions 1.18 7
Performing a legal duty 1.19 7
Joint criminal ventures 1.20 8
The doctrine of innocent agency .28 11
Causing the commission of a no-fault offence 1.30 11
The Commission’s proposals in 1993 1 31 11
The difference between inchoate liability and secondary liability 1.32 11
The Commission’s reasons for rejecting secondary liability 1 33 12
The first report 1.37 12
Retaining the doctrine of secondary liability 1 38 13
Reform of inchoate liability for assisting and encouraging crime 1 .41 14
An outline of the scheme that we are recommending in this report 1 46 15
The overall structure 1,46 15
Type 1: secondary liability 1 47 16
Clause 1 of the Bill 1 48 16
Clause 2 of the Bill 1.50 16
Type 2: innocent agency 1.52 17
Type 3: causing the commission of a no4fault offence 1 54 17
Summary 1 55 17
Limitations on liability and defences 1 57 18
The Tyrrell exemption 1.57 18
Acting to prevent the commission of an offence or to 1.59 18
prevent or limit the occurrence of harm
Paragraph Page
An overview of inchoate and secondary liability for assisting and 1.60 19
encouraging crime
D’s liability where P does not commit the principal offence 1 61 19
Specific defences 1.62 19
D’s liability where P does commnit the principal offence 1 63 19
Clause 1 1.63 19
Clause 2 1.66 20
General defences 1.67 20
The structure of the report 1.68 21
PART 2: A SUMMARY OF THE CURRENT LAW 2.1 22
Introduction 2.1 22
Secondary liability 2.2 22
A common law doctrine 2.2 22
A doctrine of general application 2.3 22
The forensic advantages of secondary liability 2,5 23
The perimeters of the doctrine of secondary liability 2.7 23
The derivative theory of secondary liability 2.7 23
Exceptions to the derivative theory 2.8 24
The doctrine of innocent agency 2 11 25
“Procuring’ the commission of the conduct element of 2.14 27
the principal offence
Secondary liability for a more serious offence than that 2.18 28
committed by P
The conduct element of secondary liability 220 29
Assistance and encouragement 2.20 29
Voluntary presence at the scene of an offence 2.23 29
Omissions 2.25 30
Failure to discharge a legal duty 2.26 30
Failure to exercise an entitlement to control the actions 2.27 30
of P
Causation, connection and secondary liability 2.30 31
Introduction 2.30 31
D’s conduct need not cause P to commit the principal 2.31 31
offence and need not make any difference to the outcome
Particular problems in cases where D’s conduct is 2.35 33
encouragement
Presumed encouragement 2.37 33
Rebutting the presumption 2.40 34
Paragraph Page
Procuring 2.42 35
The fault element of secondary liability 2.43 35
Introduction 2.43 35
D’s state of mind in relation to his or her own act of assistance 2A44 36
or encouragement
Intending the act of assistance or encouragement 2.44 36
Intention to assist or encourage 2.45 36
Beiief as to whether one’s conduct will in fact assist or 2.46 36
encourage
D’s state of mind in relation to the commission of the principal 2.47 36
offence
D’s attitude towards the commission of the principal offence 2.47 36
Knowing the essential matters of the principal offence 2.48 37
What are the essential matters? 2.49 37
“The conduct element 2.51 37
The circumstance element 2.58 38
The consequence element 2.60 39
‘The fault element of the principal offence’ 2.63 39
What is meant by ‘knowing’ the essential matters? 264 39
No joint criminal venture 2.64 39
Joint criminal ventures 2.66 40
Particular problems with the law of homicide 2.70 41
Introduction 2.70 41
The law before 1997 2.72 41
Powell and Daniels, English 276 43
Issues arising from Powell and Daniels, English 2.81 44
Distinguishing actions from the intentions with which 2.81 44
they are done?
The scope of the ‘fundamentally different act’ rule 2.85 44
The most recent guidance 292 46
No liability for not only murder but also manslaughter 2.97 47
PART 3: A STATUTORY SCHEME OF SECONDARY LIABILITY 31, 48
introduction 31 48
Preserving the forensic advantages of secondary liability 3.2 48
Reflecting the derivative theory of secondary liability 3.3 48
Narrowing the scope of secondary liability 3.5 49
Retaining the doctrine of extended common purpose 38 50
Paragraph Page
The conduct element 3.9 51
Clause 1: ‘assisting’ and ‘encouraging’ 3.9 51
The meaning of ‘encouraging’ 3.11 51
Emboldening P to commit an offence 3.12 52
Making threats or exerting pressure 3 14 52
Defining ‘encouraging’ 3,16 53
The meaning of ‘assisting’ 3.18 53
Advice as assistance 3.19 53
Acts of insubstantial assistance 3.21 54
‘Actual’ encouragement or assistance 3.24 55
Omissions as acts capable of encouraging or assisting 3.25 55
Proposals in the CP 3.31 57
Responses to the proposals in the CP 3.33 57
Conclusions and recommendations 3.34 58
Failure to discharge a duty 3.34 58
Failure to assist a constable to prevent a breach of 3.37 58
the peace
Failure to exercise an entitlement to control the 3.39 58
“actions of P
Clause 2: Joint criminal ventures 3.42 59
‘Agreed’ offences 3142 59
“Collateral’ offences 3.46 60
The doctrinal issue 3.47 60
Negating the effect of assistance, encouragemencouragement or 3.60 64
agreements pursuant to a joint criminal venture
The fault element 3.68 66
Clause 1: assisting or encouraging an offence 3.70 67
D’s state of mind in relation to the conduct elernent of the 370 67
principal offence
The current law 31.0 67
A new approach 3.75 68
The attitude of D towards the commission of the 3.77 69
principal offence
Intending P to engage in the conduct element of the 3.77 69
principal offence
The meaning of ‘intent’ 3.84 71
Must D intend that it should be P, as opposed to 3.94 73
some other person, who commits the conduct
element?
D’s knowledge or belief as to whether P (or another 3.96 74
person) will commit the conduct element
Paragraph Page
The fault required of D in relation to the essential elements 1398 74
of the principal offence other than the conduct element
Fault in relation to P’s liability 3.104 76
Fault in relation to D’s liability 1109 77
A more demanding fault element for D than P 3.110 77
The same fault element for D and P 3.114 78
D must believe that P, in committing the conduct 3.117 79
element of an offence, would commit the offence
Clause 2: participating in a joint criminal venture 3.123 81
Introduction 3.123 81
D’s state of mind in relation to the conduct element of the 3.127 82
principal offence
The attitude of D towards the commission of the 31127 82
conduct element
Should D have to believe that P (or another person) will 3.132 84
commit the conduct element of the principal offence’?
Introduction 3.133 85
Understanding the Chan Wing-siu principle 3135 86
Judicial and academic reservations concerning the 31I37 86
severity of the Chan Wing-siu principle
Defending the Chan Wing-siu principle 3.140 87
Logical incongruity 3 147 90
Substituting a test of foresight of probability 3.148 90
‘Scope of the venture’ 3 53 91
Limiting D’s liability even though D intends or believes 3.153 91
that P will or might commit the conduct element of the
principal offence
Homicide offences 3.163 94
Transferred malice 3. 164 94
Clause 1 3.165 95
The fault required of D in relation to elements of the 3.167 95
principal offence other than the conduct element
PART 4. CAUSING OTHERS TO COMMIT OFFENCES 4.1 97
introduction 4 1 97
“Procuring’ as a basis of secondary liability 4.2 97
A statutory doctrine of innocent agency 4.8 99
The elements of the doctrine 4.8 99
Liability not restricted by special characteristics required of 4.9 99
pri ncipal offender
Paragraph Page
Meaning of innocent agent 4.10 99
Semi-innocent agent 4. 14 100
‘Using’ P to commit the principal offence 4.16 100
Intending to cause a person (whether P or another 4.17 101
person) to commit the conduct element of the principal
offence
‘Intending’ to cause 4.17 101
‘P or another person’ 4.20 101
Variation in the details of the conduct element 4.21 102
‘Causing’ P to perpetrate the conduct element of the 4.22 102
principal offence
Being at fault in relation to the principal offence 4.24 103
Principal offences that require proof of fault 4.24 103
Principal offences that do not require proof of fault 4.25 103
Summary 4 26 104
Causing the commission of a nofault offence 4.28 105
The elements of the offence 4.30 106
D does not have to cause P to commit the conduct element 4.31 106
of the offence
The person that D intended to commit the no-fault offence 4.33 106
need not be P
D’s attitude towards the commission of the no-fault offence 4.34 107
PART 5: DEFENCES AND EXEMPTIONS 5.1 109
Introduction 5.1 109
Defences that we are not recommending 5.6 110
Acting reasonably in all the circumstances 5.6 110
Assistance in the course of employment 5.7 110
Assistance in the course of business 5.8 110
Defences and exemptions that we are recommending 5.9 110
Acting to prevent the commission of offences or to prevent, or 5 10 110
limit, harm
The proposals in the CP 5.11 111
Responses to the proposals in the CP 5.12 111
Should those to whom the defence is available be 5.15 112
restricted?
Should incidental offences be excluded from the scope of 5.18 112
the defence?
A requirement of acting reasonably 5.19 113
Implications for conspiracy 5.22 114
Paragraph Page
An exemption from liability in cases of protective offences 5 24 114
The common law 5.24 114
The sexual offences Act 2003 5.26 115
The proposals in the CP 5.28 116
Responses to the proposals in the CP 531 117
Conclusions 532 117
Non-sexual offences 5.38 119
PART 6: EXTRA-TERRITORIAL JURISDICTION 6.1 120
Introduction 6 1 120
General principes 6.2 120
Our recommendation 6. 2 123
Secondary liability 613 123
P commits the principal offence in England and Wales 6.13 123
P commits the principal offence outside England and Wales 617 124
D’s behaviour takes place wholly or partly in England 6.17 124
and Wales
Where an English court has jurisdiction to try P 6.18 124
Where an English court would have had jurisdiction 6.21 125
to try P had P satisfied a condition relating to
‘citizenship, nationality or residence’
D’s behaviour takes place wholly outside England and 6.23 126
Wales
Where D uses P as an innocent agent 6.27 127
P’s ‘offence’ is committed in England and Wales 6.27 127
P’s ‘offence’ is committed outside England and Wales 6.28 128
D’s behaviour takes place wholly or partly in England 6.28 128
and Wales
D’s behaviour takes place wholly outside England and 6.29 128
Wales
D causing P to commit a nofault offence 6.32 129
Role of the Attorney General 6.34 129
PART 7: LIST OF RECOMMENDATIONS 7.1 130
Assisting and encouraging 7 1 130
Joint criminal ventures 7.9 130
Innocent agency 713 131
Causing the commission of a no-fault offence 7. 14 132
Defences and exemptions 7 15 132
Extraterritorial jurisdiction 718 133

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Find it in the Library of Congress:

If you wish to locate similar books to “Participating in crime”, they can be found under the 345.03 in a public library, and the Library of Congress call numbers starting with KD7864 in most university libraries. If you wish to look up similar titles to “Participating in crime” in an on-line library catalog, the official Library of Congress Subject Headings under which they can be found are:

Accomplices
Conspiracy
Criminal attempt
Criminal behavior
Criminal law
England
Great Britain
Wales

Participating in crime

Participating in crime