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Criminal participation

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Criminal participation refers to there being more than 1 person involved in committing a particular crime. At common law, liability for secondary parties is dependent on a crime actually being committed.

Secondary parties and principals

In participating in a crime, a defendant may be a principal or a secondary party. A person cannot be secondary party to a strict liability or negligence-based offence:

  • Smith v Mellors (1987) – one of two persons in a car was drink driving. As it was to know which one was, neither could be charged as secondary parties as drink driving is a strict liability offence
  • Callow v Tillstone (1900) – a vet’s incorrect advice caused a butcher to be found guilty of selling unsound meat, a strict liability. The butcher could not be convicted as a secondary party
  • R v Gianetto [1997] – in the non-strict liability offence associated with hiring hitman, both of two possible hirers could be prosecuted as secondary parties
  • R v Yemoh [2009] – where a person was stabbed to death by a gang, all of the gang members were guilty of manslaughter as secondary parties – the maximum charge that the facts would support

Assuming that the offence in question does require a mens rea, a secondary party may be charged as if they were a principal. Section 8 of the Accessories and Abettors Act 1861 says this for indictable offences, and section 44 of the Magistrates’ Courts Act 1980 makes this provision for summary offences.

Often, it will difficult to decide who is a principal and who is a secondary party. This can be left to the jury, according to R v Montague [2013], and according to Perkins (commentator), a principal will be the person whose action are the most immediate to an offence. Sometimes, it will be much more straightforward whether a person is a principal or secondary party. In Abbot v R [1977], a defendant was a secondary party when he held down a victim for another to stab, but became a principal when he helped bury that victim who (unknown to him) hadn’t been killed by the stabbing. In R v Kennedy (No 2) [2008], a victim’s decision to self-administer drugs supplied by the defendant prevented the defendant from being classed as a secondary party.

Jointly causing at common law

Where it is not clear whether there was a clear principal party and secondary party, it may be possible to charge two or more defendants as joint principals. In Macklin and Murphy’s Case (1838), both defendants attacked and caused the death of their victim as joint principals. In R v Bingley (1821), a forgery offence could be carved up into two parts, and both defendants charged as joint principals. In R v Gnango [2011], Gnango was charged as a joint principal when another person shot and killed a passer-by. There was a strong dissent in this case by Lord Kerr, however. R v Pagett [1983] distinguished Gnango where an act was involuntary.

Principal through innocent agent at common law

It is also possible to charge a ‘secondary party’ as a principal if they acted through an innocent agent.

  • R v Michael (1840) – poisoned medicine given to child minder to give to baby. A five-year-old intervened, and gave the poison to the same baby. As the defendant had foreseen the outcome, he was still guilty
  • R v Cogan and Leake [1975] – rape through an innocent agent who believed that the victim consented, defendant (who caused) guilty without actus reus of rape
  • R v Watkins [2010] – Cogan and Leake charge should now be made under the Serious Crime Act 2007 (discussed below)

Basic secondary participation at common law

Where a defendant does not fit into the classifications above, he may be convicted as a ‘normal’ secondary party, which requires both a particular actus reus and a complex mens rea.

Actus reus of secondary party

According section 8 and section 44 of the Accessories and Abettors Act 1861 and Magistrates Courts’ Act 1980 respectively, to be convicted as a secondary party, a defendant must  have aided, abetted, counselled or procured the offence committed by the principal party. These sections are not intended to create 4 separate offences, but according to R v Montague [2013], an indictment must make it clear what role a defendant played as a secondary party. The Law Commission recommends that judges use modern language to reflect the essence of there archaic verbs.

Examples of secondary party charges include R v Stringer [2012], where a defendant who chased the victim before death was guilty of murder, irrespective of time-coincidence; and Attorney General v Able [1984], where the distribution of a ‘how to commit suicide’ book was said not to make the distributor guilty as a secondary party without an intent as to a particular suicide.

Mere presence

  • R v Coney (1882) – the mere presence of a person at the scene of a crime will not be evidence capable securing a conviction as a secondary party, in the absence of further evidence of encouragement
  • R v Clarkson [1971] – the defendant discovered and stayed to watch a woman being raped 3 times. In the absence of any encouragement of the principals or discouragement of the victim, the defendant could not be convicted as a secondary party


  • R v Gnango [2011] – during an affray (fighting in public), each participant aids and abets (is a secondary party to) the other participants’ offences

Sale or supply

  • NCB v Gamble [1959] – the defendant (vicariously, his employer) was guilty as a secondary party for issuing a ticket to allow an overweight lorry to pass over a weigh bridge. In a sale/supply situation, this would not be case where a civil wrong would be committed, i.e. after a sale but before delivery. Mr Justice Devlin said:

    “A person who supplies the instrument for a crime or anything essential to its commission aids in the commission of it; and if he does so knowingly and with intent to aid, he abets it as well and is therefore guilty of aiding and abetting.”

  • Glanville Williams suggests that the sale/delivery civil wrong distinction should be abolished where goods could have been easily obtained from elsewhere

Causal links

  • R v Allan [1965] – encouragement does not require the meeting of minds or communication between the principal and secondary party
  • R v Calhaem [1985] – counselling does not need to cause the principal’s offence – if a hired hitman accidentally kills his target, the hirer is still guilty as a secondary party
  • Attorney General’s Reference (1 of 1975) [1975] – causal link required for procuring offence – not to be acquitted for spiking the principal’s drink, knowing that the principal would drive home above the legal intoxication limit as a result
  • R v Luffman [2008] – causal link found in intended robbery resulting in death as killing was within scope of encouraged robbery
  • R v Stringer [2012] – good policy reasons for requiring a material contribution and a causal link for a finding of secondary liability


  • Rubie v Faulkner [1940] – driving instructor guilty of aiding and abetting driving without due care and attention, committed by a learner when overtaking on a bend and becoming involved in an accident
  • Du Cros v Lambourne [1907] – owner of car guilty of aiding and abetting dangerous driving, whether or not he was driving
  • Tuck v Robson [1970] – landlord would be guilty of aiding and abetting after hours drinking if on premises at the time
  • Cassady v Reg Morris [1975] – boss of haulage company guilty of aiding and abetting over-hours driving as had power to stop
  • JF Alford Transport [1997] – not guilty of aiding and abetting company drivers’ driving over-hours where no knowledge that over-hours deriving was occurring

Mens rea of secondary party

In addition to the actus reus of aiding, abetting, counselling or procuring, which refers to ‘any contribution’, according to Ashworth, a secondary party must also have the relevant mens rea. According to Ashworth again, this mens rea is two-diminsional. There must be an intention to assist, and knowledge of the essentials of the principal’s offence.

Intention to assist

  • Lynch v DPP of Northern Ireland [1975] – there is no desire requirement, it is enough that the defendant knows what will occur
  • NCB v Gamble [1969] – indifference is enough (weigh bridge ticket)
  • Gillick v West Norfolk HA [1986] – must be a purpose to encourage, which doctor did not have when issuing a girl under the age of 16 with contraception

Knowledge of the essentials of the principal’s offence

  • Johnson v Youden [1960] – only 1 of 3 solicitors knew of a criminal price increase, so was the only solicitor guilty as a secondary party
  • O’Neill v Gale [2013] – no ignorance defence, not knowing that principal’s act was a crime
  • R v Bainbridge [1960] – it is enough that the secondary party knows of the type of crime to be committed by the principal
  • DPP v Maxwell [1978] – in the alternative, it is enough that the principal commits one or more of a menu of offences contemplated by the secondary party

Unexpected outcomes

  • R v Saunders (1573) – principal advised defendant to kill his wife with a poisoned apple. Principal not guilty when child ate the apple, but defendant guilty by transferred malice
  • R v Gnango [2011] – an accidental variation will not help a secondary party in avoiding conviction
  • R v Bristow [2013] – injury probable to landowner in the getaway to a burglary, irrelevant who was driving, all guilty of manslaughter


  • DPP v Maxwell [1978] – where there is a menu of offences contemplated, it is enough that the secondary part appreciates that one or more than those offences ‘might’ be committed where he assists
  • Carter v Richardson [1974] – enough that instructor realised driving pupil might be over the alcohol limit
  • R v Bryce [2004] – guilty for assisting murder when defendant drove the principal to a location realising the risk that a murder might be committed by the principal
  • R v Rook [1993] – Guilty if real and serious risk
  • R v Webster [2006] – secondary party guilty if foresaw principal might drive dangerously
  • Simester and Sullivan suggest that recklessness is an acceptable approach

Victims as parties

R v Tyrell [1894] set out the rule that victims should not be classed as secondary parties to crimes committed against them. Such a rule makes sense where is can protect underage victims from being classed as secondary parties to their own rape.

This rule was put on a statutory basis in s 2(1) of the Criminal Law Act 1977, providing that intended victims cannot be convicted for conspiring to commit an offence against themselves. This rule was, however, too broad if cases such as R v Brown [1993] are to be upheld. s 51(1) of the Serious Crime Act 2007 narrows the rule to preventing victims (and potential victims) from assisting or encouraging offences committed against them if they are in a protected category.

  • R v Gnango [2011] – R v Tyrell [1894] is now a rule of statutory construction only, allowing victims to be convicted at common law
  • R v Clarke [1985] – in exceptional circumstances, a person who frustrates a crime may have a defence
  • R v Becerra and Cooper [1975] – a defendant was still guilty as a secondary party where he gave his knife to the principal and ran away. The principal then stabbed the victim to death. As the defendant had not served the principal with unequivocal notice, he had not effectively withdrawn his assistance
  • R v Whitefield [1983] – where a defendant only encourages a principal, he will have more time to withdraw his support for a principal’s defence. Communication may serve the required notice

Secondary party conviction after principal’s acquittal

A principal may well have a defence allowing acquittal. However, as the offence has still happened, derivate liability can follow, such that a secondary party may not hide behind that defence.

  • R v Bourne (1952) – a husband forced his wife to have sexual intercourse with a dog. She had a defence, but he was still convicted
  • R v Howe [1987] – a secondary party may be able to hide behind self-defence where circumstances change severely (the victim ferociously responds)
  • R v Cogan and Leake [1975] – only actus reus of rape, but secondary liability followed, perhaps wrong (but use Serious Crime Act 2007 now (below))
  • R v Thornton and Mitchell [1940] – if the principal has no actus reus, there can be no secondary liability. Where a secondary party gave negligent advice to a principal, but that principal did not drive negligently as a result, there was no offence on which to base the secondary liability of the negligent advice-giver

There has been no consensus on how to reform common law secondary liability.

Joint enterprise with additional offences at common law

Joint enterprise itself was defined as “mutual encouragement and assistance” in R v Stringer [2012]: where two defendants are joint principals. Where one joint principal commits another offence beyond that agreed upon, the secondary party may still be liable on the basis of foreseeability. The type of liability which may result in this situation is often referred to as parasitic liability.

  • R v Gnango [2011] – parasitic liability available where joint enterprise
  • R v Powell and Daniels [1997] – 3 defendants guilty of killing a drug dealer where either of them could have been the principal
  • R v Rahman [2008] – a secondary party does not need to know the exact intent of a principal to be guilty of an additional offence (including death or inflicting GBH)
  • R v A,B,C,D [2010] – murder must be foreseen for parasitic liability
  • R v Lewis [2010] – suggested that death need only be foreseen; doubted
  • R v Willett [2010] – a secondary party will not be parasitically liable where a spontaneous risk emerges and an offence is caused which the secondary party (ex joint principal) has no opportunity to support or accept the risk of

A defendant will not, however, be liable for his joint principal’s fundamentally different offence as a secondary party.

  • R v English [1997] – joint principals attacked a victim with wooden posts when one of the parties pulled out a knife and stabbed the victim. The defendant (secondary party) was not liable as stabbing is fundamentally different from the use of wooden posts (but apparently, guns and knives are not fundamentally different)
  • R v Gamble [1989] – a joint principal to a ‘kneecapping’ was guilty as a secondary party to a principal’s slitting of the victim’s throat, as guns and knives are both deadly (the crimes were contemplated but not fundamentally different)
  • R v Rahman [2008] – according to Lord Bingham, the question is whether the additional crime radically departed from the original crime, but too much was made of the weapon in Gamble as opposed to distinguishing on the basis of an intent to punish and not kill
  • R v Mendez [2010] – The ‘fundamental difference’ distinction is based on the breaking of a causal link

Ashworth suggests that the fundamental difference rule reduces the effectiveness of the GBH murder rule. Where manslaughter is foreseen, but murder is committed by a joint principal, R v Stewart and Schofield [1995] allows the secondary party to be convicted of manslaughter, against the rule that secondary liability must be derivative in nature. In R v Yemoh [2009], the same rule was upheld, where the manslaughter was not fundamentally different from the infliction of injury with knives.

Assisting and encouraging under the Serious Crime Act 2007

Sections 44-46 of the Serious Crime Act 2007 now provide an alternative way to charge secondary liability. This criminal liability is not dependent (derivate) upon a crime actually being committed by a principal and if based on encouragement or assistance which is not reasonable. The penalty is linked to the offence assisted or encouraged, but may be discretionarily reduces. Simester and Sullivan criticise the Act as going beyond the harm principle and being poorly written and over-complicated.

Section 44 – intentionally encouraging or assisting

  • Actus reus – some act capable of encouraging or assisting the commission of another offence, or failing or threatening not to discharge a duty
  • Mens rea – intention to encourage or assist (section 47 – an intention for the actus reus only unless the offence encouraged or assisted requires a particular fault)
  • R v Blackshaw [2011] – a defendant was convicted on the basis of intentionally encouraging or assisting where he wrote a Facebook post encouraging riot behaviour in London

Section 45 – intentionally encouraging or assisting, believing an will be committed

This offence is even broader than section 44, as it allows prosecution based on a mere belief that an offence will be committed. Even if an offence is impossible, a conviction is still possible.

Section 46 – intentionally encouraging or assisting, believing one or more offences will be committed

This section is broader still, but according to R v Sadie [2013], does not breach the principle of certainty within the European Convention on Human Rights. This is the statutory equivalent of the ‘DPP v Maxwell’ menu of offences in secondary liability at common law.

The 2007 Act is clearly very broad, but has not yet been significantly explored. There is no reason, it seems, why the act not not used to attract the same sentence as any common law secondary liability case.

Attempts under the Criminal Attempts Act 1981

Where a person intends to commit an indictable offence and has carried out some preparatory act, he may be convicted of attempt under s 1(1) of the Criminal Attempts Act 1981.

Preparatory act

  • R v Gullefer [1987] – a preparatory act ends where the actus reus of an offence begins
  • R v Tosti [1997] – attempted burglary to where cutting equipment stowed and lock on shed was being inspected
  • R v Geddes [1996] – trespassing with child abduction equipment in a school bathroom not an attempted false imprisonment

Mens rea

  • R v Pearman (1984) – cases decided prior to the Criminal Attempts Act (where attempts were based on common law) are still valid
  • R v Whybrow (1951) – the mens rea required for an attempt is ‘intent’. Any lesser mens rea is not enough. A person who intends GBH cannot be guilty of attempted murder
  • R v Walker & Hayles (1990) – foresight of high probability is enough. This case may not have surveyed R v Woollin [1999]


There have been a few cases which suggest that recklessness as to an offence can be enough to constitute an attempt.

  • R v Khan [1900] – recklessness as to non-consent was enough to constitute attempted rape
  • R v Pace [2014] – a knowledge or belief, and not just a suspicion, is required for proceeds of crime offences


  • Haughton v Smith [1975] – old law – cannot attempt an impossible crime (impossible to handle stolen goods where goods not stolen, but planted by police)
  • s 1(3) Criminal Attempts Act 1981 – can now attempt impossible crimes
  • R v Shivpuri [1987] – guilty of attempting to possess a controlled drug, where the substance was not a controlled drug
  • R v Pace [2014] – s 1(3) is not actually needed, as a belief in possibility is enough

Conspiracies under the Criminal Law Act 1977

Where is is not possible to convict a secondary party at common law, and a prosecutor does not wish to use the 2007 Act, s 1 of the Criminal Law Act 1977 allows a defendant to be guilty of conspiring to commit a certain offence where he both agrees with another person and intends that an offence will necessarily be committed as a result of that agreement.

  • Section 2 prevents a defendant from being charged with conspiring with his spouse or children under 10 years of age
  • R v Shillam [2013] – shared criminal purpose is required
  • R v Chrastny [1992] – the person with whom the defendant makes an agreement need not have met the defendant, but his existence must be known

The intention that an offence will necessarily follow must be mutual:

  • R v Anderson [1986] – an agreement to supply equipment will not amount to a mutual intention for a crime to be committed with that equipment
  • R v Goddard [2012] – need some intention to carry out the crime
  • R v Siracusa (1990) – organisers of crimes will have the required intention to be convicted of conspiracies, even ‘without getting their hands dirty’

A conspiracy cannot be committed recklessly. Although in DPP v Nock [1978], it was said that conspiracies cannot concern impossible crimes, this position was reversed in s 1(1)(b) of the 1977 Act.

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