Parties to Crime and Inchoate Offences — SQE1 FLK2 Criminal Liability

Two friends agree to give a man a hiding. Fists only. They say so to each other beforehand, in terms. They find him in a car park and both start punching. Then one of them, without a word of warning, pulls out a handgun his friend never knew he was carrying, and shoots the man dead at point-blank range. The friend is charged with murder. He is not the one who fired. Is he guilty of it?

No. And for thirty years the answer would have been yes, which is why this topic matters more than almost any other in criminal law. This is Parties to Crime and Inchoate Offences. Keep those two friends in the car park. We come back for them, twice.

Here is the route. First, parties: who counts as a principal, who counts as a secondary party, and the four ways of joining in. Then the mental element, and the case that rewrote it. Then withdrawal, and how hard it is. Then two statutory offences that catch you even when nothing happens. And then attempt: how far you must go, and what you must intend.

Start with the labels, because most of them are dead. The old law had four categories: principals in the first and second degree, accessories before the fact, accessories after the fact. Treat all four as history. Modern law knows two people. The principal, who commits the actus reus, and the secondary party, who joins in.

And the secondary party is not a lesser species. Under s.8 of the Accessories and Abettors Act 1861, anyone who aids, abets, counsels or procures an indictable offence is tried and punished as a principal offender. Same charge. Same maximum sentence. The driver who waits outside is charged with the burglary.

Four verbs, and they are worth separating. Aiding is practical help: the weapon, the getaway car, the lookout. Abetting is encouragement at the scene, while it happens. Counselling is advice or urging beforehand, usually at a distance. And procuring is producing the offence by endeavour. Any of the four gets you there.

But procuring has one feature the others do not. At a christening party a man slips three double vodkas into the designated driver's orange juice, as a joke. The driver notices nothing, drives home, and is stopped at a checkpoint, well over the limit and without fault of his own. Did they agree anything? No. Did the driver even know? No. Is the joker liable?

Yes. Procuring alone needs no shared intention with the principal, and no knowledge on the principal's part. He produced the offence by his own endeavour. And because driving with excess alcohol is a strict liability offence, the blameless driver still committed it, which gives the procuring something to attach to.

Now the actus reus, and the first great trap. Mere presence is not participation. In R v Clarkson, from 1971, soldiers walked into a room where a woman was being raped and simply stood and watched. They did nothing to help her and nothing to encourage the rapists. Their convictions were quashed. Being there, however repellent, is not aiding or abetting.

But add encouragement and presence becomes participation. A dozen people watch a fight outside a takeaway, and none of them is liable. One steps to the front and shouts at the attacker to keep going and finish him, and the attacker is visibly spurred on. That man is a secondary party. The difference is not where he stood. It is what he did.

The mental element has two limbs. D must intend to assist or encourage, and D must know the type of offence the principal is going to commit. Not every detail. The type. So a shop assistant sells a nervous customer a crowbar, a heavy drill and bolt cutters. He wonders vaguely whether it is something dishonest, and accepts an explanation about renovating a flat. Three weeks later the tools open a warehouse. Liable?

No. Vague unease is not knowledge. Contrast the supplier of cutting equipment who knew the sort of crime his tools were wanted for. He was convicted. The outer limit is contemplation of one of a limited range of offences.

Which brings us to the case that changed this topic. For about thirty years the law said that if a secondary party merely foresaw that the principal might kill, that was enough to convict him of murder. In 2016 the Supreme Court held that this had been a wrong turn.

That case is R v Jogee. Foresight is evidence from which a jury may infer intention. It is not a substitute for it. The prosecution must prove that the accessory intended to assist or encourage the principal to commit the offence, with whatever mental element that offence requires. So for murder: D must have intended to assist or encourage a killing, or the causing of really serious harm.

Watch for this in a scenario. A judge proposes to direct a jury about foresight. If they are sure D foresaw that his companion might stab the victim intending serious harm, they must find that D intended to assist him. That direction is wrong. Must becomes may. Even foresight of virtual certainty only entitles a jury to find intention. It never compels it.

Back to the car park. Fists only, expressly agreed, and then a handgun the friend has never seen. The jury are not sure he intended to assist in killing or in causing really serious harm. So murder fails. The sudden production of a lethal weapon the accessory knew nothing about is the classic example of the principal doing something fundamentally different.

But do not stop there, because the exam will not. A defendant who took part in unlawful violence intending some harm is guilty of manslaughter if death results. That fallback survives, unless the shooting was an overwhelming supervening act which nobody in his shoes could have contemplated. That is a demanding threshold.

Withdrawal next, and the bar is high. Two requirements. D must communicate the withdrawal to the other participants, unequivocally, so that they are left in no doubt. And it must happen before the offence is committed. A man agrees to a supermarket robbery, helps plan the route, lends the others a van, then changes his mind on the morning, stays at home and tells nobody. Has he withdrawn?

No. Staying away is not withdrawing. The point of communicating is to give the others a chance to change their plans, and they are still relying on him. And if you have already supplied something, words may not be enough. If you lent the knife, try to get it back. If you cannot, warn them not to use it.

There is one softening. Where the violence is spontaneous and nothing was planned, a participant can withdraw simply by stopping and leaving. A man throws two punches in a street brawl, thinks better of it and walks thirty metres away. Minutes later someone else glasses the victim. There was never a plan to rely on.

Two more people to place. First, the innocent agent. A woman fills a medicine bottle with a lethal dose of sedative, labelled as her husband's heart tablets. She asks the evening carer to give him two spoonfuls at bedtime. The carer does exactly that. He dies. The carer has no mens rea and is guilty of nothing. And the woman is not an accessory. She is the principal.

Second, the person who helps afterwards. Forget the phrase accessory after the fact, which died with the law of felony. The modern offence is assisting an offender, under s.4(1) of the Criminal Law Act 1967. Four elements. Another has committed a relevant offence. D knows or believes them guilty. D acts without lawful authority or reasonable excuse. And D intends to impede their apprehension.

Washing the bloodstained shirt, scrubbing the knife, driving the flatmate to another town: all of it. And note the sentence, because this is a separate offence, not secondary liability. The maximum is graduated. Ten years where the offence assisted carries a sentence fixed by law. Seven where that offence carries fourteen years. Five where it carries ten years. Three years in any other case.

Now two offences that catch you even when nothing happens. Common law complicity is derivative: no offence by the principal, nothing for you to be secondary to. Part 2 of the Serious Crime Act 2007 breaks that link. Under s.44, D does an act capable of encouraging or assisting an offence, intending to encourage or assist it. Nobody need reply. Nothing need follow.

Post an offer on a forum to tell anyone who wants it when a sub-post office moves its cash, wanting a robbery to happen. You are guilty under s.44 although nobody answers and the post comes down within a day.

Then s.45, where D believes the offence will be committed and that the act will assist it. That is the storage manager who keeps handing over the access code, knowing what goes into the unit. And s.46, where D believes one or more of a range of offences will be committed, without knowing which. That is the getaway driver told only that it is the depot or the jeweller's.

One limit on all of this, and it is a clean trap. A fifteen-year-old girl repeatedly begs her twenty-two-year-old boyfriend to have sex with her. He is convicted of a sexual offence against a child under sixteen. Can she be convicted as an accessory to it? No. That is R v Tyrrell, from 1894. A member of the class an offence exists to protect cannot be party to it.

Attempt now, and it has exactly two elements. Under s.1(1) of the Criminal Attempts Act 1981, D must act with intent to commit an offence. And D must do an act more than merely preparatory to committing it. Intent, and an act beyond preparation. It applies to indictable offences.

And check one thing before you reach for attempt. Under s.9(1)(a) of the Theft Act 1968, burglary is complete the moment D enters as a trespasser with the relevant intent. He need not take anything. Attempt only arises where he never gets in.

So where is the line? It is fact-sensitive and it is for the jury, but the cases give you the shape. Running onto a greyhound track to have a race declared void: preparation. Arrested outside a post office with an imitation gun and a threatening note, admitting he meant to rob it: still preparation. He never went in and never produced the gun.

Found in a school lavatory block with a knife and a rope, having had no contact with any child: preparation again. That is R v Geddes, from 1996, and it is the one to remember, because it is so tempting to convict on the intent alone. Equipping yourself and getting into position is not embarking on the offence.

The other side of the line takes very little. Breaking the lock and hinge of a door is enough, because forcing the door is the first step of the entry itself. Pointing a loaded sawn-off shotgun is enough, with the safety catch still on. So hold this one. A man is found at two in the morning in a back garden with a screwdriver and a torch. It comes back at the quick check.

The mental element of attempt is where marks are lost. You must intend the missing element. So attempted murder requires an intention to kill. An intention to cause really serious harm, which is enough for murder itself, will not do for the attempt, because death is precisely what is missing.

A man wires his wife's soap dish to the mains. She survives with burns. He says he wanted to put her in hospital for months, not to kill her. Attempted murder fails. That is R v Whybrow, from 1951, and the charge that fits is under s.18.

But that rule bites only on the missing consequence. As to the surrounding circumstances, attempt asks no more than the full offence does. On attempted rape, recklessness as to consent is enough. On attempted aggravated arson, D must intend the damage by fire, but recklessness as to endangering life suffices. Ask which element is missing, and whether it is a consequence or a circumstance.

Which leads straight to impossibility. A man collects a suitcase he firmly believes is lined with cocaine. It is powdered glucose, entirely lawful to possess. Guilty of attempt? Yes. Under the Criminal Attempts Act 1981 he may be guilty although the facts make the offence impossible, and he is judged on the facts as he believed them to be. That is R v Shivpuri, from 1987.

But the rule runs one way only. It convicts D who believed in facts which, had they been true, would have made his conduct criminal. It does nothing for D who believed in facts that would have made it lawful. A man who takes an umbrella genuinely believing it is his own does not attempt theft. Impossibility removes an objection. It never manufactures a guilty mind.

And the sentence for an attempt is the same maximum as for the completed offence. Attempted robbery carries life, because robbery does. That is a ceiling, not a tariff.

A word on how SQE1 tests this. You will not be asked to recall a case name. You get a set of facts, five answers, and one job, which is to pick the best one. This topic is unusually case-heavy, and that is a trap in itself. Learn the rules. The names are memory pegs.

If you keep only three. R v Jogee, because foresight is evidence of intention and never a substitute for it. R v Clarkson, because standing there and watching is not participation. And R v Whybrow, the electrified soap dish, because attempted murder needs an intention to kill and nothing less.

Four traps. One: a secondary party is charged with the substantive offence, not with some lesser offence of helping. The lookout is charged with the burglary and faces the same maximum.

Two: the principal's acquittal does not automatically save the accessory. An employer sends an employee out with a dangerously defective hitch, and the employee is acquitted for want of any personal fault. The employer can still be convicted of procuring. Secondary liability derives from the criminal act, not from the principal's conviction.

Three: counselling needs no causal link. The woman who paid a man to injure her business partner is liable although he struck out of his own temper rather than for the money. The attack was within the scope of what she counselled. Four: mind the direction of the impossibility rule. It convicts the defendant who believed in criminal facts. It never convicts the one who believed in innocent ones.

Quick check, and you have met this man. He is found at two in the morning in the back garden of a house, carrying a screwdriver and a torch. The garden gate had been bolted on the inside and he reached over to unbolt it. He is standing on the lawn about ten metres from the back door. He has not touched the house, or any door, or any window. Has he done an act more than merely preparatory to burgling it?

Three candidate answers. One: yes, because his clothing, tools and presence at night show he intended to break in. Two: yes, because reaching over to unbolt the gate began the execution of the burglary. Three: no, because equipping himself and getting into position is still only preparation. Pause here if you want a moment.

The answer is three. He is on the lawn, ten metres away, with the tools of the offence and an obvious intention. But he has not begun to carry it out. He has done exactly what the man in the school lavatory block did: equipped himself and got into position.

Why the others fail. One asks how bad his intentions were, which is never the test. Two is the tempting one, but the gate is not the house. Forcing the lock of the door you mean to enter is the first step of the entry. Unbolting a garden gate is getting to the starting line.

Five things to take away. One: mere presence is not participation. You need an act of assistance or encouragement, and the intention that it should assist or encourage. Two: know the type of offence, not every detail. Three: foresight is evidence of intention, never a substitute for it, and that is R v Jogee.

Four: withdrawal must be communicated, unequivocal and in time, unless the violence was spontaneous and unplanned. Five: attempt needs intent to the missing element plus an act beyond preparation, and impossibility is no answer. And our two friends in the car park walk away from murder, because the handgun was fundamentally different from the fists they agreed on. That is the end of Criminal Liability. Next time, a new subject: Criminal Law and Practice.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.