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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┬ámens 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...

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