The criminal law seeks to punish not only principal offenders (those who perform the act prohibited by the definition of a criminal offence) but also a range of others who are involved in crime. To that end, the law developed so-called inchoate offences and also a concept of secondary participation in crime.
Inchoate offences at common law were incitement, conspiracy and attempt. There has been statutory reform in relation to all three. The Criminal Law Act 1977 amended the law of conspiracy. The Criminal Attempts Act 1981 amended the law of attempt and incitement at common law has been replaced by new offences of assisting or encouraging crime under the Serious Crime Act 2007 Part 2 - (see below).
Inchoate offences do not require the actual commission of a principal offence - for example, an attempt to steal money does not actually require the theft to be completed. One rationale for the existence of inchoate offences is that they enable law enforcement agencies to intervene before a planned crime is committed.
It is, of course, common for principal offenders to have accomplices. In the quaint language of the criminal law, the terms used are aiding, abetting, counselling or procuring. Section 8 of the Accessories and Abettors Act 1861 (as amended) provides that - "Whoever 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. (See also Magistrates' Courts Act 1980 s.44).
As discussed in Joint Enterprise 1 - Setting the Scene care is required with the term "joint enterprise". We are using it here in a particular sense, sometimes referred to as "parasitic accessory liability". This arises where X and Y engage in Crime A but X commits crime B. The difficulty lies with the circumstances in which Y can be also liable for Crime B.
In some instances, from proof of little more than mere presence at the scene of an offence, a joint enterprise has been constructed with the result that all those involved are held liable for the offence. There can be no doubt that this is capable of producing injustice. Suppose a group of individuals go out as a group and they encounter Z. One in the group (call him X) dislikes Z and, in the course of a fight, X kills Z. Should others in the group be also convicted of the murder / manslaughter? Herein lies the dilemma and the sense of injustice being produced by this area of the law.
The material below is for those who wish to delve further into the law on participation in crime and inchoate offences. My next post on this topic will examine joint enterprise (Parasitic accessory liability) more specifically.
For detailed exposition of the law on inchoate offences and participation in crime see:
Smith and Hogan - Criminal Law - 13th ed. (2011) - especially Chapters 8, 9 and 13.
Textbook on Criminal Law - Michael Allen - 12th ed. (2013) - especially Chapters 7 and 8
Two Law Commission Reports:
The Law Commission's report - Participation in Crime (Law Com No 305 - May 2007) - is a lengthy document of 321 pages (pdf). To date, it has not led to Parliament making any changes to the law.
An earlier report - considered so-called inchoate liability - see Inchoate liability for assisting and encouraging crime (Law Com No 300 - July 2006).
It is clear that the Law Commission viewed the two reports as complimentary. Para. 1.4 of the Participation in Crime report states:
'Taken together, the recommendations contained in both reports would, if implemented, result in a scheme whereby inchoate and secondary liability will support and supplement each other in a way that is rational and fair'
The Serious Crime Act 2007 Part 2 is concerned with Encouraging or Assisting Crime. This legislation was based on the Law Commission’s Report on Inchoate Liability for Assisting and Encouraging Crime (Law Com No. 300, CM 6878, 2006) but the government made significant changes to the Law Commission's proposed scheme.
The Act abolishes the common law offence of incitement and in its place creates new offences of intentionally encouraging or assisting an offence (section 44) and encouraging or assisting crime believing that an offence, or one or more offences, will be committed (sections 45 and 46). The Act contains a defence to the offences in Part 2 (where the encouragement or assistance is considered to be reasonable in the circumstances) and an exemption from liability where the offence encouraged or assisted was created in order to protect a category of people (and the person doing the encouragement or assistance falls into that category).
There are instances where a substantive offence may not have been completed but nevertheless an offence of a different kind has been committed because of the actions or agreements in preparation for the substantive offence. These are known as inchoate offences. Since the Serious Crime Act 2007, it can be said that the term inchoate offences is concerned with assisting or encouraging crime (Part 2 of the Serious Crime Act 2007 sections 44 to 46), attempt (Criminal Attempts Act 1981) and conspiracy (Criminal Law Act 1977) - see Crown Prosecution Service - Inchoate Offences
Incitement at common law was previously an inchoate offence but it is not all that likely to appear on an indictment since section 59 of the Serious Crime Act 2007 abolishes incitement at common law with effect from 1 October 2008. For offences committed before that date, incitement occurs when a person seeks to persuade another to commit a criminal offence.