The Supreme Court has just given judgment in an appeal concerning the principles of so-called accessory liability in the criminal law. The typical case is of the person who acts as look-out during an armed robbery, but who does not himself fire the shots that kill or injure the victims. The court unanimously cut back the criminal culpability of accessory defendants. They were clearly right to do so. The principles that they set down are appropriate in cases of murder, and the result reached although radical on the basis of the law as previously understood, is right in principle. However, I will argue that in laying down the law for subsequent decisions, the court crucially failed to adequately distinguish the questions of whether the actus reus of an offence can be attributed to a person other than the one physically carrying it out, and the mens rea required to convict the accessory.
Actus Reus and Mens Rea
To be guilty of a crime it must be my doing. So for murder, the action is the killing of another. Theft the appropriation of property belonging to another. Battery the unlawful use of force upon another. And so on. The actus reus of the offence does not concern the state of the defendant’s mind. [In some extreme cases, although the defendant’s body may have caused the outcome that constitutes the offence it may not be the defendant’s doing, as where I grab your hand and strike another with it, or where I am drugged and in an unconscious state cause the victim to be shot.]
Most offences also require some mental element, which is roughly synonymous with blameworthiness. So, murder requires an intention to kill or cause serious injury. Theft dishonesty and an intention to permanently deprive. Battery the intention to apply immediate force, or the foresight that such force may be applied by the action being done.
Accessories: the Actus Reus
Qui facit per alium facit per se: he who acts through another does the act himself. Although this is a legal principle, it is also a principle of personal responsibility that we recognise in every day life. Corporations, governments, football teams all act through real world human agents, and their agents’ actions are attributed to them. One difficult question (which we do not need to take further) is the kind of participation that is sufficient to attribute one person’s actions to another. The language of the law is that D2 must “aid, abet, counsel or procure” D1’s actions. [The rules on conspiracy are, today in England, seen as separate. This is in my opinion an historical aberration. Conspiracy is simply another method by which one person’s actions may be attributed to another.]
If therefore D1’s actions are attributed to D2, and D2 has the requisite blameworthiness for the offence, D2 is guilty of the offence. Notice that D2 is guilty of the principal offence. If the action procured is the killing of another, and D2 has the mental blameworthiness sufficient for the offence, D2 is a murderer (see s 8 of the Accessories and Abettors Act 1861). D2 is not guilty of any separate offence of “procuring murder”. Further, D1 may not be guilty of the principal offence as lacking the necessary mens rea. This should not prevent D2’s conviction if it can be proven that he had the requisite blameworthiness. As in morality generally, D2’s guilt or innocence should not turn upon the state of D1’s mind.
Accessories: the Mens Rea
Should a lower level of blameworthiness suffice in order to convict the accessory than is required for the principal? If, for example, the look-out intends the shop to be robbed and foresees that it is possible that the principal may lose his head and kill someone, should that suffice for murder if the principal does in fact kill a bystander?
In principle the answer is clearly no. Any legal system that says that the level of blameworthiness for crime X is Y, but that we will convict you of crime X when your degree of blameworthiness is less than Y when you have assisted another, has got itself into a mess. And a mess is what English law has been in this field, for at least 32 years.
In Chan Wing-Siu the Privy Council had held that where in the course of a joint enterprise to commit an offence (such as robbery) D1 commits another offence (such as murder), D2 is also guilty of that other offence as an accessory if he could foresee that D1 might act as he did. This had been confirmed by the House of Lords in R v Powell and R v English. This made no sense at all. It meant that you could be convicted of murder despite lacking the degree of blameworthiness required for murder. Rightly, and predictably, the Supreme Court overturned this line of authority.
The opportunity was there to align the mens rea required for the accessory with that required for the principal offence. This would mean that the mens rea requirement for the accessory would vary according to the offence charged, just as it does for the principal. The degree of blameworthiness required should be exactly congruent with that required for the offence. Unfortunately this step was not taken, and the Supreme Court has left the law in an unsatisfactory state. Why?
For crimes of intent the court state
If the crime requires a particular intent, D2 must intend to assist or encourage D1 to act with such intent
This is wrong. It is too narrow. For purposes of D2’s conviction, D1’s blameworthiness is neither here nor there. For D2 to be convicted of a crime of intent it should not matter what D1’s intentions were, nor what D2 intends about those intentions. If D1’s actions are attributed to D2 and D2 himself has the requisite intent of the principal offence, D2 should be capable of conviction. For purposes of convicting D2, if he procures the killing of V by D1, intending that V should be killed, why should it matter that he doesn’t intend D1 to act with the intent to kill or cause serious injury?
The court continue
[T]here can be cases where D2 gives intentional assistance or encouragement to D1 to commit an offence and to act with the mental element required of him, but without D2 having a positive intent that the particular offence will be committed. That may be so, for example, where at the time that encouragement is given it remains uncertain what D1 might do; an arms supplier might be such a case.
This is also wrong. It is too broad. If the crime of murder requires an intent to kill or cause serious injury, a defendant who lacks the intent that another should be killed or seriously injured should not be guilty of it. If they can foresee death or serious injury they may be guilty of another lesser offence (here manslaughter). An intent to assist someone who may or may not kill should not be enough. Their blameworthiness is very high, equivalent to the bomber who plants a bomb knowing it may or may not go off, but indifferent as to whether it does. But it is not murder.
Further the court adopts the position that it is always necessary to intend to assist the perpetrator to do the prohibited act. So we are told [99]
Where the offence charged does not require mens rea, the only mens rea required of the secondary party is that he intended to encourage or assist the perpetrator to do the prohibited act, with knowledge of any facts and circumstances necessary for it to be a prohibited act:
This is wrong, and is again too narrow. If, for example, the look-out intends a theft, but foresees that it may be necessary to use physical force, he should be convicted as an accomplice to robbery. It should not be necessary to intend to assist the use of force (which is part of the actus reus for robbery) as an intention to use force is not a constitutive element of the offence. Similarly, if you procure an offence of strict liability, if the actions of the principal are attributed to you, the intention with which you acted should be irrelevant (the ratio of NCB v Gamble does not contradict this).
If the proposed principle represented the law in relation to offences of strict liability then, a fortiori, the same should apply in relation to offences requiring recklessness or gross negligence. Is it really the case that to find someone liable as an accessory to manslaughter that it be proven that they intended to encourage or assist the killing? Are defendants such as these not clearly guilty of at least manslaughter, given their degree of blameworthiness? Clearly the Supreme Court do not think that is the law, and concluded that the submission that the defendant Jogee was not at least guilty of manslaughter was ‘hopeless.’ However, what they consider to be the appropriate mens rea test in cases of manslaughter is, to me, hopelessly obscure (see [107]).
A Grade
The Supreme Court are correct that there would be a ‘striking’ anomaly if there were a lower mental threshold for guilt in the case of the accessory than in the case of the principal for conviction of the same offence [85].
The correct solution to this ‘striking’ anomaly ought to have been to align the mental threshold for guilt in the case of the accessory with that of the principal. Such a move would have been a bold one, but no less bold than the step taken of overturning over thirty years of authority. The court failed adequately to distinguish between rules for the attribution of action, and the necessary mental element constitutive of the offence.
The problem of accessories in cases of murder has now been solved in a generally satisfactory way: because it is a crime of intent and the mental elements for principal and accessory have been nearly aligned. The problem has not been solved for other offences, and we will in my view be back before the Supreme Court in quick order in relation to other offences to require the court to review what it has done.
A grade?
B.
Minus.
spinninghugo 
You misunderstand the judgment, and, it appears, basic principles of the criminal law. You need to understand [107] by reading it in conjunction with [96].
And how do you square the rule on manslaughter with the rule on strict liability?
Why do you think intent to encourage or assist the prohibited act is necessary for crimes of strict liability, but that is not required for crimes requiring gross negligence (ie manslaughter)?
If it is unjust that the mental threshold for guilt in the case of an accessory should be lower than in the case of an accessory, why do the rules set out in [107] differ from those for the mens rea for manslaughter?
Do, please, explain where and how I am misunderstanding either the judgment or basic principles of criminal law.
Very interesting article and an audacious conclusion on your part, I think.
A hate-filled, but silent, accessory essentially ‘upgrades’ the culpability of the D1? I hope I am not misrepresenting your conclusion but it seems to me that this is all a very murky business for any jury to have to tackle. I can hardly see how a test of reasonable doubt could be applied in a case like this, particularly if the two defendants were separated during the commission of the offence.
I must confess I harbour deep misgivings about the whole business of ”joint enterprise’, which I believe has been used by police and prosecuting authorities to paper over the cracks of failed investigations. The case of Derek Bentley is very much to the front of my mind. I understand that his case is unaffected by any change in the courts’ interpretation of the law -nhis being a pre-1984 case – but I think it illustrates the dynamics of an essentially vindictive prosecution and the dangers of the whole ‘joint enterprise’ enterprise.
Well said.
A starting point about your misunderstanding is that you seem to rationalise the punishment of the accessory (who is liable to be punished in the same way as the principal) in terms of agency. Latin maxims are all very well, but the accessory is not punished on the basis that the principal’s acts are his own. His participation in the crime is a distinct source of liability, for all sorts of good policy reasons.
The mens rea for unlawful act manslaughter is simply that of the unlawful act. The judgment’s views on the manslaughter conviction are underpinned by those principles, and as applied in [107] it is very clear that the submission that there was no murder or manslaughter was hopeless.
Ok, so now we can see the source of where I think you are mistaken. I do not agree with that at all.
First, I think section 8 of the Accessories and Abettors Act means what it says.
“Whosoever shall aid, abet, counsel or procure the commission
of any indictable offence … shall be liable to be tried, indicted
and punished as a principal offender.”
The person who aids, abets etc is convicted as principal. They are not convicted of an ancillary offence for (unarticulated) policy reasons.
Second, if we were to accept your proposition, the moral force behind the result in Jogee disappears. if we are not convicting the defendants for *murder* but for some kind of different ancillary offence justified for policy reasons, there is no necessary reason why the mens rea requirement should be as strict as it is for the principal offence. That was precisely the error that had been made by the earlier cases. You are repeating it.
As for unlawful act manslaughter, that is fine. If we can satisfy the mens rea requirement against the accessory for that form of offence, they should be convicted.
The problem with the UKSC is that they don’t follow through on the logic of why it made sense to overturn Chan Wing-Siu. The blameworthy mental state of the accessory should be the same, for all offences, as is required for the principal. Because they are being convicted as principal. this has implications for, say, accessories to robberies or batteries that will have to be resolved subsequently.
The person who ‘aids, abets etc’ is convicted as *an accessory* and punished as a principal offender. They are guilty of the same offence (ie where the principal committed murder, the accessory is not convicted of, for example, an offence under the Salmon Act 1986). To use any language of agency is completely wrong.
I think the overturning of Chan Wing-Siu was inadequately reasoned and I do not mean to support the full reasoning in Jogee. I do not, however, quibble with the basic rationale underpinning ordinary accessorial liability (which I understand you do). Being free from any attachment to an artificial notion of agency, I am attracted by the morality of convicting the accessory where they intend to assist or encourage the crime. After all, in accessorial liability, which is not the law of conspiracy or inchoate offences, the harm is the commission of the offence; the culpability lies in the intention to encourage or assist a crime which actually happened with that encouragement or assistance.
I am interested by what implications will need to be worked through in robberies and batteries..
I am afraid you are confusing the facts that must be proven, and the offence of which they are convicted. There is no such offence as “accessory to [water pollution]” (or whatever). There are offences, such as murder, and different ways of being liable for those offences.
Just asserting “to use any language of agency is completely wrong” is not an argument. It is an assertion.
I don’t at all quibble with accessorial liability. I was explaining how it works, and why it justifies the result in Jogee.
Your freestanding policy rationales neither explain the result, nor explain why accessories who do not have an intention to assist that offence can be guilty of it.
Or, perhaps put more shortly, I think R v Millward is clearly correct, and that appeals to ‘policy’ to explain how an accessory is liable for the principal offence when there is no other offender are wrong.
Take the example of the robbery. You say:
‘If, for example, the look-out intends a theft, but foresees that it may be necessary to use physical force, he should be convicted as an accomplice to robbery. It should not be necessary to intend to assist the use of force (which is part of the actus reus for robbery) as an intention to use force is not a constitutive element of the offence.’
The law does allow the look-out to be convicted as accomplice to robbery. It just depends on whether the foresight that it may be necessary to use physical force is sufficient evidence for a jury to infer that the look-out conditionally intended to assist the commission of robbery (including as it does the use of force).