Secondary Liability: charging decisions on principals and accessories

Contents

• Introduction
• The parties to an offence
• R v Jogee
• Principles of secondary liability
• Qualifications on the scope of secondary liability
• Three types of offence involving multiple parties
• Prosecuting offences on the basis of secondary liability
• The evidential stage
• The public interest stage
• Selecting charges: principal, secondary and inchoate liability
• Charging group assaults
• Charging murder or manslaughter in group assaults without a weapon
• Recording the basis for charging decisions
• Serious Crime Act 2007 offences
• Charging common law offences or Serious Crime Act 2007 offences
• Charging an offence under s46 Serious Crime Act 2007
• Participating in the activities of an Organised Crime Group
• Charging Conspiracy

Introduction

The guidance sets out how charging decisions are to be approached in cases involving persons who assist or encourage another to commit a crime. These persons are known as accessories or secondary parties.

In particular, it addresses:

• The law on secondary liability following the decision in R v Jogee; Ruddock v The Queen [2016] UKSC 8; UKPC 7.
• The abolition of “parasitic accessory liability” as a basis for criminal liability.
• The liability of an accessory based on conditional intent.
• The evidential value of association and presence.
• The evidential value of an accessory’s knowledge of weapons.
• How to select charges that involve principal, secondary and inchoate liability.
• The approach to charging group assaults, including cases of murder and manslaughter.
• Charging offences under the Serious Crime Act 2007.
• Recording the basis for charging decisions.

Insofar as this guidance attempts to set out the law on secondary liability, what it sets out is the Crown Prosecution Service's understanding, which does not have the force of law.

The parties to an offence

Where two or more persons are involved in an offence, the parties to the offence may be principals (D1) or secondary parties (accessories ) (D2). Each offence will have at least one principal, although it is not always possible or necessary to identify the principal(s).

A principal is one who carries out the substantive offence i.e. performs or causes the actus reus of the offence with the required mens rea. If two or more persons do so, they are joint principals.

A secondary party is one who aids, abets, counsels or procures (commonly referred to as assists or encourages) D1 to commit the substantive offence, without being a principal offender. However, a secondary party can be prosecuted and punished as if he were a principal offender: s8 Accessories and Abettors Act 1861.

Secondary liability principles can be applied to most offences. The principles remain the same, whichever offence they are applied to. The principles are commonly used in offences of violence, theft, fraud and public order.

R v Jogee

In the case of R v Jogee; Ruddock v The Queen [2016] UKSC 8; UKPC 7 the Supreme Court and the Privy Council addressed the controversial doctrine of “parasitic accessory liability” (PAL). Where PAL applied, if two people (D1 and D2) set out to commit crime A, and in the course of that venture D1 commits crime B, D2 would be guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as he did.

The doctrine was crystallised in R v Powell; R v English [1999] 1 AC 1, which adopted the reasoning in R v Chan Wing-Siu [1985] AC 168. The Court in R v Jogee held that Chan Wing-Siu took a wrong turn and was in error, as it equated foresight that D1 might commit crime B with intent to assist D1’s commission of crime B. The correct approach is to treat such foresight as evidence of intent to assist D1 in crime B. Although foresight may sometimes be powerful evidence of intent, it is not conclusive of it [66 & 87].

Following R v Jogee, PAL no longer applies as a basis for criminal liability. In circumstances where PAL previously applied, the principles applicable to all cases of secondary liability will now apply: see the section below on “Principles of secondary liability” and, in particular, paragraphs 92-94 of R v Jogee, which cover cases of conditional intent.

Requests for copy papers for appeal following R v Jogee

Prosecutors may receive requests for copies of prosecution papers by persons considering seeking exceptional leave to appeal out of time on the basis of the decision in R v Jogee.

When considering such requests, prosecutors should have regard to the relevant principles and case law set out on the Casework Hub.

Principles of secondary liability

The Court in R v Jogee set out the essential principles applicable to all cases of secondary liability.

Prosecutors should be fully familiar with the ruling in R v Jogee, in particular with the principles set out at paragraphs 8-12, 14-16 and 88-99. The key points to note are set out below, including some points not addressed in Jogee but which remain relevant. The sub-headings are provided for ease of reference and are not part of the ruling.

Identification of the principal and secondary parties

• Where it is not possible to prove whether a particular defendant is a principal or accessory, it is sufficient to prove that the particular defendant participated in the crime as one or the other. [88]
• However, note that where two people are jointly indicted for the commission of a crime and the evidence does not point to one rather than the other, and there is no evidence that they were acting in concert, the jury ought to acquit both: R v Lane and Lane (1986) 82 Cr. App. R. 5; R v Aston and Mason (1992) 94 Cr. App. R. 180. See also R v Lewis and Marshall-Gunn [2017] EWCA Crim 1734, in which the prosecution case was put on the basis that the defendants were joint principals but not on the footing of it being a joint enterprise involving encouragement or assistance by one or the other. Exceptions are the relevant provisions in the Domestic Violence, Crime and Victims Act 2004, which create offences of causing or allowing the death or serious injury of a child under the age of 16 or of a vulnerable adult.

Actus reus

• D2 must encourage or assist the commission of the offence by D1 [8].

Association and presence

• Association between D2 and D1 and D2’s presence at the scene may or may not involve assistance or encouragement. Numbers often matter, as most people are bolder when supported or fortified by others [11]. See the section below on “Participation” for a fuller discussion of association and presence.

Causation

• It is not necessary to prove that the encouragement or assistance had a positive effect on D1’s conduct or on the outcome. For example, if a number of persons encourage D1, the encouragement of a single one of them could not be shown to have made a difference; or D1 may ignore the encouragement. [12]
• However, where D2 procures the commission of an offence, there must be a causal link between D2’s contribution and D1’s offending: Attorney-General’s Reference (No. 1 of 1975)  [1975] Q.B. 773; R v Calhaem [1985] QB 808.

Agreement

• Secondary liability includes cases of an agreement between the principal and secondary party, but is not limited to them. It is not necessary to prove any agreement between D1 and D2 to commit an offence. Where, however, it exists, such agreement is by its nature a form of encouragement and in most cases will also involve acts of assistance. [17, 78]

Spontaneous multi-handed violence

• Liability of the secondary party does not depend on some sort of an agreement, express or tacit. Therefore, in cases of spontaneous multi-handed violence, if D2 joins a group which he realises is out to cause serious injury, and D1 acts with intent to cause GBH and death results, the jury may infer that D2 intended to encourage/assist the deliberate infliction of GBH and/or intended that that should happen if necessary; and D1 and D2 will be guilty of murder [95]. The giving of intentional support by words or deeds may include supportive presence. [78]

Mens rea - Intent

• D2 must intend to encourage or assist the commission of the crime, with knowledge of any existing facts necessary to give D1's conduct/intended conduct its criminal character. This applies also where the offence charged does not require a mens rea. [9, 16 & 99] For example, there is no requirement to prove a mens rea against D1 that D1 knew that the child was under 13 years old, under ss5-8 of the Sexual Offences Act 2003; but D2 must know that the child was under 13 years old.
• If D1's offence requires a particular intent, then D2 must intend to assist/encourage D1 to act with that intent. For example, if D2 encourages D1 to take V’s bike without permission and return it later, but D1 keeps it, although D1 will be guilty of theft, D2 is only guilty of unauthorised taking, as D2 did not encourage D1 to act with intent to permanently deprive. [10 & 90]
• Sometimes, the intent to assist/encourage D1 to act with a particular intent will be co-extensive on the facts with an intention by D2 that the offence will be committed, such as in a concerted physical attack: there may often be no distinction to draw between an intention by D2 to assist D1 to act with the intention of causing at least GBH and D2 having the intention himself that such harm be caused. But as a matter of law, it is enough that D2 intends to assist D1 to act with the requisite intent ie. D2 does not have to intend for the criminal consequence, in this case really serious harm, to occur. [10 & 90]
• D2 may intentionally assist or encourage D1 to commit one of a range of possible offences and it will be sufficient if D1's eventual offence is within that range: see DPP for Northern Ireland v Maxwell [1978] 1 W.L.R. 1350 HL, in which D2, a member of a terrorist organisation, was liable as an accessory for guiding the car taking a number of men to carry out a violent attack. Although he did not know the precise form of the attack they were to carry out (shooting, bombing etc), he intended to assist them to do so. [10;14-15; 90]. This principle will also appy if the assistance / encouragement is given some time before the crime is committed and at the time it is not clear what D1 may or may not decide to do. For example, D2 will be liable where he supplies a weapon or arms to D1, who has no lawful purpose in having it, intending to help D1 by giving him the means to commit a crime / one of a range of crimes, but having no further interest in what he does, or whether he uses the weapon / arms at all.
• Note that Jogee does not address procurement, which does require the secondary party to intend that the principal will commit the offence: Attorney-General’s Reference (No. 1 of 1975) [1975] Q.B. 773; Blakely v DPP [1991] R.T.R. 405.

Conditional intent

• D2’s intention to assist D1, and D2’s intention that the crime be committed, may be conditional, such as where a group of men confronting a rival group may hope the rivals slink away, but intend that if resistance is met, GBH at least should be done. [92]
• Intent, including conditional intent, may be proved by inference from other facts and circumstances. An example is where D2 and others intend to commit crime A, and the question is whether D2 shares a common intention or purpose, if things came to it, to commit crime B. In such a case, a jury would be asked to consider if D1’s act of committing crime B was within the scope of the joint venture, or whether D2 expressly or tacitly agreed to a plan which included D1 going as far as he did, and committing crime B, if the occasion arose. [93]

Foresight as evidence of conditional intent

• If the jury is satisfied that there was an agreed common purpose to commit crime A, and if it is satisfied also that D2 must have foreseen that, in the course of committing crime A, D1 might well commit crime B, it may in appropriate cases be justified in drawing the conclusion that D2 had the necessary conditional intent that crime B should be committed (or intent to encourage or assist crime B), if the occasion arose; or in other words that it was within the scope of the plan to which D2 gave his assent and intentional support. This will be a question of fact for the jury. [94]

Weapons

• D2’s intention to assist in a crime of violence is not determined only by whether he knows what kind of weapon D1 has in his possession. The tendency to focus on what D2 knew of what weapon D1 was carrying should give way to an examination of whether D2 intended to assist in the crime charged. If that crime is murder, then the question is whether he intended to assist the intentional infliction of grievous bodily harm at least, which question will often be answered by asking simply whether he himself intended grievous bodily harm at least. [98]
• Very often D2 may intend to assist in violence using whatever weapon may come to hand. In other cases he may think that D1 has an iron bar whereas he turns out to have a knife, but the difference may not at all affect his intention to assist, if necessary, in the causing of grievous bodily harm at least. [98] In other words, the fact that D1 uses a weapon that is more dangerous than any weapon D2 contemplated that he might use will not normally negate D2’s liability.
• Knowledge or ignorance that weapons generally, or a particular weapon, is carried by D1 will be evidence going to what the intention of D2 was, and may be irresistible evidence one way or the other, but it is evidence and no more. [98]

Note that the court in R v Johnson & Others [2016] EWCA Crim 1613, when analysing the scope of the decision in R v Jogee, confirmed that “knowledge of a weapon … remains highly material in relation to the inference of intention” [5; 82]. But, where the common purpose is to inflict really serious bodily harm, under the law as explained in Jogee, it would no longer be necessary to show D2’s knowledge of a particular weapon, such as a knife, and the possible use of it. [56iii; 81i; 82]

Manslaughter

• D2 will not be guilty of murder but will be guilty of manslaughter where:

• D2 is a party to a violent attack on another without an intent to assist in causing death or really serious harm, but the violence escalates and results in death.
• D2 participates by encouragement or assistance in any other unlawful act which all sober and reasonable people would realise carried the risk of some harm (not necessarily serious) to another, and death results. The test is objective. [96]

In R v Johnson & Others [2016] EWCA Crim 1613 the Court confirmed that “after Jogee … a conviction for manslaughter does not depend on knowledge of the weapon”. [5]

Transferred malice

• Jogee does not address transferred malice.
• The principle of transferred malice is often explained by reference to offences of violence: if D1 intends to kill or do really serious bodily harm to V1, but by mistake kills V2 instead, he is guilty of murder of V2.
• The doctrine applies to secondary parties: D2 intentionally assists or encourages D1 to murder V1 but D1, intending to kill V1, mistakenly kills V2 instead. D2 is guilty of the murder of V2.
• Transferred malice will not apply, however, where D1 deliberately selects a different victim from that foreseen or intended by D2. In such situations, consideration should be given to a charge under the Serious Crime Act 2007, or a charge of conspiracy.
• In R v Gnango [2011] UKSC 59 the Supreme Court used a combination of the common law principles of secondary liability and the common law doctrine of transferred malice when it ruled that: where D1 and D2 indulge in a gunfight in a public place, each intending to kill or cause serious injury to the other, but it is an innocent bystander V who is killed in the cross-fire, both D1 and D2 are liable for the unintended murder of V, regardless whether it is D1 or D2 who kills V. Both are liable, whether they are regarded as principals to the agreed joint activity of shooting with intent to kill or cause serious injury, or as an accessory to the act of firing the fatal shot [60-62].

Qualifications on the scope of secondary liability

Prior to R v Jogee, there were two main qualifications that limited the scope of secondary liability. D2 was not liable where:

1. D1's act is “fundamentally different” to that foreseen by D2; or
2. D2 withdraws from the joint venture before the offence is committed.

Overwhelming supervening act

• D2 will bear no criminal responsibility where there is an “overwhelming supervening act” by the perpetrator, which nobody in the defendant’s shoes could have contemplated might happen and is of such a character to relegate his acts to history. [97]
• Apart from cases of overwhelming supervening act, there will normally be no need to consider the concept of “fundamental departure”. What matters is whether D2 encouraged or assisted the crime; he need not encourage or assist a particular way of committing it, although he may sometimes do so. [98]

In R. v. Tas [2018] EWCA Crim 2603 the court held that the production of a knife by D1, which D2 did not know about, did not amount to an overwhelming supervening act; and D2 was liable for manslaughter.

Withdrawal

R v Jogee does not explicitly address the issue of withdrawal.

However, the decision makes clear that D2 will not be liable for the act of D1 “where anything said or done by D2 has faded to the point of mere background … by the time the offence was committed. Ultimately it is a question of fact and degree whether D2’s conduct was so distanced in time, place or circumstances from the conduct of D1 that it would not be realistic to regard D1’s offence as encouraged or assisted by it” [12].

Existing case law on withdrawal appears to be untouched by R v Jogee:

• D2 will not be liable for the act of D1 where D2 withdraws from the joint venture before the offence is committed.
• Whether D2 has withdrawn is a question of fact and degree, will depend on the circumstances of each case, and is one for the jury to decide.
• Factors that may be considered, for instance, are: the nature of the assistance and encouragement given by D2; how imminent the commission of the crime (for example, infliction of the fatal injury) is at the time of withdrawal; and the action that is said to constitute the withdrawal: R v O'Flaherty, Ryan and Toussaint [2004] 2 Cr. App. R. 20, CA.
• In R v Rajakumar [2013] EWCA Crim 1512 it was held that withdrawal is closely aligned with the question of whether crime B occurred in the furtherance of crime A.
• Some cases say that there is no difference as to the requirement for timely, effective unequivocal communication of withdrawal in cases of spontaneous violence: R v Robinson [2000] EWCA Crim 8; R v Mitchell and King [1999] Crim LR 496.
• However, R v Stringer [2011] EWCA Crim 1396 makes clear that there may be cases where it would be unjust to regard D1's act as done with D2's encouragement or assistance, particularly in a spontaneous outbreak of violence: where D2 starts to join in chasing V with hostile intent, but quickly thinks better of it and stops, it would be unjust for D2 to be automatically guilty of whatever violence was inflicted on V by others who continued to chase V [52-53]. R v Rajakumar states that what may suffice to constitute a withdrawal in spontaneous and unplanned group violence may not necessarily suffice in pre-planned group violence.

Example

D1, D2 and D3 travel together to a city centre with the intention to pickpocket or rob people in a busy street. On the way, D3 decides to leave D1 and D2, goes his own way and does not meet up with them again. A few hours later, D1 and D2 commit theft and robbery offences in the city centre. Any original encouragement D3 gave D1 and D2 is regarded as having been spent and D3 is therefore not liable.

Note that where a defendant is not liable as a secondary party due to withdrawal or any original encouragement being regarded as having been spent, he may nevertheless be liable for an inchoate offence, such as conspiracy, attempt or an offence under Part 2 of the Serious Crime Act 2007: see below.

Three types of offence involving multiple parties

There are three ways in which an offence involving multiple parties will usually operate, although the scenarios may in some cases overlap:

(1) Where two or more people join in committing a single crime, in circumstances where they are, in effect, all joint principals

The principals of secondary liability do not apply in this scenario, as none of the persons are accessories.

Examples

1. D1 and D2 agree to commit a robbery. Each plays a part in carrying out the actus reus: together they attack and take money off security men making a cash delivery. Both are liable for robbery as joint principals.
2. D1 and D2 go on a shoplifting spree together, both taking goods out of shops without payment. They are joint principals.
3. D1 and D2 break into a house together and they both help themselves to items of the owner's property. D1 and D2 are both guilty of burglary as joint principal offenders.

In these cases each player has performed all the elements of the offence (robbery or theft) in his own right. Little difficulty arises in respect of the liability of D1 and D2 in such cases.

(2) Where D2 assists or encourages D1 to commit a single crime

In this scenario, D1, with the mens rea, carries out the actus reus alone. D2 is an accessory (assists or encourages the offence). D2 does not need to be present at the scene of the offence. Both are liable for the offence. D1 is liable as a principal. D2’s liability as a secondary party is based on the principles set out above.

Examples

1. D1 and D2 commit a burglary. D1 alone enters as a trespasser and steals from the premises. D2 assists or encourages D1 by driving D1 to and from the scene and/or acting as a look-out, knowing that D1 is going to commit burglary. Both are liable for the burglary, D1 as the principal, D2 as an accessory.
2. D1 and D2 commit ABH. D1 and D2 approach V. D1 punches V, causing injuries that amount to ABH. D2 shouts encouragement to D1 during the assault. D1 is liable as a principal; D2 is liable as an accessory, for encouraging D1.
3. D2 provides D1 with a weapon so that D1 can use it in a robbery. D2 is not present when D1 commits the robbery. D1 is liable as a principal; D2 is liable as an accessory.

(3) Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a second crime (crime B)

In this scenario, D2 may act as a principal or an accessory to crime A. D2 may also be liable for crime B, as an accessory. D2’s liability will depend on proving D2 encouraged or assisted D1 to commit crime B and D2’s intent (which may be conditional) to encourage or assist crime B, should the need arise. D2’s foresight that D1 might well commit crime B may be evidence of this intent, but it is not conclusive of it: see paragraphs 66, 87 and 94 of R v Jogee.

Examples

1. D1 and D2 carry out a burglary (offence A). D1 acts as principal, entering the premises and stealing. D2 assists or encourages D1 by acting as a lookout. However, In the course of the burglary, D1 kills householder V, with intent to kill or do really serious harm. D1 is liable for murder of V as a principal. D2 may also be liable for murder, as a secondary party, if D2 intended or conditionally intended that crime B should be committed, if the occasion arose.
2. As in example 1 above, except that D2 only intends or conditionally intends that some (less than really serious bodily) harm be caused to V, if the occasion arose. D1 is liable for murder of V. D2 is liable for manslaughter.

Prosecuting offences on the basis of secondary liability

Prosecutors may only start a prosecution if a case satisfies the Full Code Test set out in the Code for Crown Prosecutors. This test has two stages: the first is the requirement of evidential sufficiency and the second involves consideration of the public interest.

The evidential stage

The evidential stage of the Full Code Test applies in the same way to cases involving secondary liability as it does to all other cases.

When assessing the sufficiency of evidence in a case involving multiple offenders a prosecutor is likely to ask a number of the following questions:

1. Is there evidence that the defendants acted as joint principals?
2. If not, did D2 assist or encourage D1 to commit an offence, with intent to assist or encourage D1, acting with whatever mental element the offence requires of D1?
3. Or, did D2 assist or encourage D1 to commit offence A, with the intent or conditional intent that offence B should be committed, if the occasion arose?
4. Does D have a viable claim to have withdrawn from the joint venture? Note that if D2’s conduct was so distanced in time, place or circumstances from the conduct of D1, it may not be realistic to regard D1’s offence as encouraged or assisted by it.
5. Was D1's action an overwhelming supervening act which nobody in D2’s position could have contemplated? If so, D2 will have no criminal liability.

Prosecutors should exercise particular care when assessing the questions above in cases that involve:

1. A spontaneous outbreak of multi-handed violence; and
2. Children, young people and persons with learning disabilities, autism (including Asperger syndrome) and mental health issues.

In such situations and in respect of such suspects, it remains permissible to consider what the suspect foresaw and to use that as one part of the evidence in considering whether the evidence of intentional assistance or encouragement is made out (see the section on Conditional intent cases below). However, that inference must be approached with particular care because of the real possibility that the spontaneous situation, or the age, nature or condition of the person, might mean that they did not have such foresight, which will contribute to the decision about their intention. A fast moving situation, the lesser developed thinking or experience of a child or young person, the impaired or different thinking of a person with a learning disability, autism / Asperger syndrome or mental health issue - may mean a suspect is less able to appreciate what may follow.

Further, it may be determined that the evidence that these persons intended to assist or encourage D1 to commit a particular crime may not be sufficiently strong and reliable to make D2 liable, once careful thought has been given to the situation in which they found themselves, or to their mental capacity due to age or condition.

Prosecutors should consider the available evidence concerning the situation or the suspect, identifying and seeking further evidence where necessary, asking themselves how that evidence should be taken into account in reaching safe inferences about the suspects intention.

For further information on autism, see the CPS Autism Checklist for Prosecutors on the Knowledge Hub and The National Autistic Society publication Autism: a guide for police officers and staff.

Conditional intent cases

A conditional intent case is one in which D2 conditionally intends to assist or encourage an offence that will or might well be committed, if it is necessary, or if the occasion arises. For example, bank robbers who attack a bank when one or more of them is armed may hope it will not be necessary to use the guns, but it may be inferred that all were intending that if they met resistence the weapons should be used with intent to do GBH at least [R v Jogee 92-94].

Note that conditional intent can apply both where there is no prior joint criminal adventure and where there is a prior joint criminal adventure (crime A) and the conditional intent relates to another offence (crime B).

R v Jogee clarifies that although foresight should not be equated with intent, it can be treated as evidence of intent.

Therefore, in conditional intent cases (such as where D2 conditionally intends that crime B should be committed, if the occasion arises), D2’s intent may be inferred from the facts and circumstances of the case, including evidence that D2 foresaw that D1 may well commit crime B.

R v Jogee further clarifies that whether D2 had the necessary conditional intent is a question of fact for the jury [94].

The Court in R v Anwar [2016] EWCA Crim 551 made the following observations in respect of the evidential requirements post Jogee:

• Although R v Jogee “changed the articulation of the mens rea”, “the same facts which would previously have been used to support the inference of mens rea before the decision in Jogee will equally be used now” [22].
• “We find it difficult to foresee circumstances in which there might have been a case to answer under the law before Jogee but, because of the way in which the law is now articulated, there no longer is” [20].

This rationale may be applied when making charging decisions in conditional intent cases: the same facts which would previously have been used to support the inference of mens rea, and therefore a charging decision, before the decision in Jogee can equally be used now; these facts may include evidence of foresight, from which intention may be inferred.

However, in some cases proving the requisite intent of D2 may be problematic, such as where D2 foresaw only a slight possibility that D1 might commit crime B. In such cases, prosecutors should carefully consider whether the evidence of foresight, together with the other evidence in the case, is sufficient to prove intent and charge D2 with the offence in question, or whether to charge a lesser offence or no offence at all. If D2 is charged with the main offence, it may be appropriate to add an alternative lesser charge to the indictment, such as manslaughter as an alternative to murder. This will allow the jury to decide whether D2 is criminally liable for the more serious offence, or a lesser offence only. See the section on “Selecting charges”.

In cases where the prosecution rely on evidence of the foresight of D2 to prove D2’s intent, CPS advocates should resist any submissions of no case to answer based on an argument that proof of intention based on foresight is insufficient. This issue is a question of fact for the jury and reliance may be placed on R v Jogee [94] and R v Anwar [20, 22].

Participation

The live issue in a secondary liability case is often whether D2 has participated in the venture. This will involve proving that D2 by words or conduct assisted or encouraged D1, with the requisite intention. Liability does not depend on D2 being present at the scene of the offence.

The Court in R v Jogee addressed the two recurrent situations which can cause difficulty when assessing whether D2 has participated in an offence: presence at the scene of the offence and association between D2 and D1. In light of some public misunderstanding, it reiterated that guilt by association or guilt by simple presence has no proper part in the common law [77].

Accordingly, the following evidence alone will not satisfy the evidential stage:

• Mere accidental presence at the scene of an offence.
• Association with the principal offender(s).
• Association with or membership of a group or gang.

However, the Court made clear that association and presence may sometimes involve assistance or encouragement by D2; it will depend on an analysis of the facts of the case:

"Both association and presence are likely to be very relevant evidence on the question whether assistance or encouragement was provided. Numbers often matter. Most people are bolder when supported or fortified by others than they are when alone. And something done by a group is often a good deal more effective than the same thing done by an individual alone. A great many crimes, especially of actual or threatened violence, are, whether planned or spontaneous, in fact encouraged or assisted by supporters present with the principal lending force to what he does. Nevertheless, neither association nor presence is necessarily proof of assistance or encouragement; it depends on the facts." [11]

When considering the use of evidence relating to gang affiliation and activities, prosecutors should refer to the legal guidance on Gangs (not yet published) for a summary of the relevant case law. Given the negative connotations of the term “gang”, prosecutors should be cautious about referring to a group as a “gang”, and should only do so if there is an evidential basis to support the assertion.

Prosecutors should note that in Myers v R [2016] AC 314 Lord Hughes emphasised the importance of distinguishing between explanatory evidence and evidence of propensity when considering whether to introduce evidence relating to gangs:

"Claims by prosecutors that the evidence is necessary to understanding of the case, or, as is sometimes asserted, to discourage the jury from wondering about the context in which the events discussed occurred, need to be scrutinised with care. It is only where the evidence truly adds something, beyond mere propensity, which may assist the jury to resolve one or more issues in the case, or is the unavoidable incident of admissible material, as distinct from interesting background or context, that the justification exists for overriding the normal Makin prohibition on proof of bad behaviour." [52]

Examples of presence at the scene

Examples where D's presence may amount to assistance or encouragement are:

1. D1 rapes V. D2 and D3 hear V screaming and enter the room where the rape is taking place. They do not provide direct physical assistance, for example by holding down V; nor do they provide verbal encouragement. However, they remain in the room, witnessing the rape, offering no opposition to it, where they have the power to do so, or at least to express dissent. Depending on all the circumstances of the case, D2 and D3s presence may be evidence that each of them separately encouraged the rape, and intended to do so. Note that it must be proved that D2/D3 intended to encourage; if D2/D3 merely observes the scene in the capacity of a voyeur, they might not intend to encourage D1, even though they may in fact encourage D1. See R v Clarkson and Others (1971) 55 Cr. App. R. 445.
2. Two group / gang members meet in an alley for a pre-arranged fight. Depending on all the circumstances of the case, the presence of those who attend the fight is capable of being encouragement to the participants in the fight. It must be proved in relation to each D separately that they encouraged the participants, and intended to give encouragement.

Examples of association

Examples where D2's association or links with D1 or a group or gang can form part of the evidence in a case are:

1. D2's prior involvement in / awareness of communications with other participants (e.g. postings on Facebook) may demonstrate that he was not a mere disinterested bystander, accidentally at the scene of the offence, and that by his presence he intended to assist or encourage D1's commission of the offence.
2. D2's association with D1 and his knowledge of D1's propensity to violent criminal behaviour may be evidence that D2 had the necessary intent or conditional intent that, in the course of a burglary, V should be assaulted by D1, if D1 were apprehended.
3. D2's association with a group / gang and his knowledge of group / gang members' tendency to commit really serious harm / to carry or use weapons may be evidence from which it can be inferred that D2 knew the group / gang member(s) were predisposed to serious violence / carrying potentially lethal weapons. D2’s knowledge will be evidence as to what the intention or conditional intention of D2 was ie intent to kill / do really serious harm.

The public interest stage

Where there is sufficient evidence to prosecute, prosecutors must go on to consider whether a prosecution is required in the public interest.

The Code sets out the approach that should be taken when considering the public interest. This approach applies to all cases involving secondary liability.

The more serious the offence, the more likely it is that a prosecution is required.

Under paragraph 4.12(b) and (c) of the Code, when deciding the level of seriousness of the offence committed, prosecutors should consider the suspect's culpability and the harm caused to the victim. Prosecutors should take into account views expressed by the victim about the impact the offence has had. In appropriate cases this may also include the victim's family.

The greater the suspect's level of culpability, the more likely it is that a prosecution is required. In determining the level of culpability, the following factors may be of particular relevance in cases of secondary liability:

• The suspect's level of involvement.
• The extent to which the offending was premeditated and/or planned (or was it, for instance, a spontaneous outbreak of violence).
• The suspect's age: significant weight must be attached to the age of the suspect if they are a child or young person under 18. The best interests and welfare of the child or young person must be considered including whether a prosecution is likely to have an adverse impact on his or her future prospects that is disproportionate to the seriousness or persistence of the offending. Prosecutors must have regard to the principal aim of the youth justice system which is to prevent offending by children and young people. As a starting point, the younger the suspect, the less likely it is that a prosecution is required.
• The suspect’s maturity: young adults will continue to mature into their mid-twenties. The maturity of the child or young person should be considered, as well as their chronological age.
• Whether the suspect is, or was at the time of the offence, suffering from any significant mental or physical ill health or disability.

Further legal guidance is available in relation to Youth offenders and Mentally disordered defendants.

Selecting charges: principal, secondary and inchoate liability

The selection of charges will involve consideration of the public interest in pursuing a particular charge, an alternative charge, or no charge at all.

In all cases prosecutors should select charges which:

• Reflect the seriousness and extent of the offending supported by the evidence.
• Give the court adequate powers to sentence and impose appropriate post-conviction orders.
• Enable the case to be presented in a clear and simple way.

Prosecutors need not always choose or continue with the most serious charge where there is a choice.

Prosecutors should never go ahead with more charges than are necessary just to encourage a defendant to plead guilty to a few. In the same way, they should never go ahead with a more serious charge just to encourage a defendant to plead guilty to a less serious one.

These principles are of particular relevance to cases of secondary liability, as prosecutors may have the option of charging several different offences, and of charging a suspect as a principal, as an accessory or with an inchoate offence.

To ensure that charges reflect the culpability of D, prosecutors should specifically consider the following factors when making charging decisions in cases involving multiple offenders:

• Is there evidence that D acted as principal? If so, the suspect should be charged as a principal.
• Where the evidence does not point to D acting as a principal, is there evidence that D acted as an accessory? That is, did D assist or encourage the commission of the offence in some way? R v Jogee points out that such participation may take many forms and it may include providing support by contributing to the force of numbers in a hostile confrontation [89]. If there is evidence that D assisted or encouraged the offence, with the required intent, D should be charged as an accessory. Note that where it is not possible to charge a substantive offence, a Serious Crime Act offence or other inchoate offence should be considered (see the sections on Serious Crime Act 2007 offences and on Charging conspiracies).
• Where D's role as an accessory is minor or peripheral and the offence in question is a minor offence, consider whether it is in the public interest to charge D at all. In particular, where a court is likely to impose only a nominal penalty on conviction a prosecution will often not be in the public interest: see the guidance on Minor offences.
• Where D's role as an accessory is minor or peripheral but the offence is a serious one, consider whether a less serious charge than that charged against the principal is more appropriate. For instance, where the offence attracts a mandatory or automatic or minimum sentence, the charge may be considered disproportionate to the culpability of D. In the vast majority of cases there is likely to be an appropriate lesser charge available. However, in the unlikely event that no lesser charge is available, prosecutors must weigh carefully the merits of proceeding with a charge for the serious offence, or not proceeding at all. The decision as to where the public interest lies will depend on the facts of each case.
• If it is unclear whether D acted as principal or accessory but the evidence demonstrates that it was in one capacity or the other, the prosecution case may be advanced on an alternative principal / accessory basis, and D may be charged as a principal, under s8 of the Accessories and Abettors Act 1861. The exact role of D may properly emerge during the trial process, and the judge may sentence on this basis. Prosecutors should ensure that an indictment contains alternative offences which carry penalties appropriate for the seriousness of the conduct of those involved: see R v Greatrex [1999] 1 Cr. App. R. 126. This will enable a jury to convict D of a lesser offence, such as violent disorder for example, where it is not satisfied that D is criminally liable for the more serious offence.
• Where alternative verdicts are open to a jury pursuant to ss6(2) and (3) Criminal Law Act 1967, alternative charges need not necessarily be preferred. Prosecutors should decide on the facts of a particular case whether the inclusion of an alternative count on the indictment will be helpful or a distraction to the jury.

Prosecutors must take account of any relevant change in circumstances as the case progresses after charge. For example, if D's role in the offence becomes clearer at a later stage, it may be appropriate to amend the charge or indictment accordingly.

Charging group assaults

Where a death or serious assault occurs at the hands of a group or gang, prosecutors should seek to determine the exact role played by each suspect and select charges that differentiate the roles.

However, prosecutors should be mindful, when selecting charges, not to overly complicate the presentation of a case. This includes a consideration of the directions of law that the indictment will require as a result.

In homicide cases, it is not always possible to identify who are the killer(s) or principal offender(s) and who are the secondary parties. R v Jogee confirms that it is not necessary to prove whether a defendant is a principal or an accessory [88] (provided he is one or the other), and in a multi-handed assault it will often be the case that no-one can say whose hand did the act which proved fatal. What is necessary is that someone (identified or not) is shown to have committed murder or manslaughter.

In such cases, it is permissible to prosecute the participants to the offence as principals, without necessarily differentiating roles. However, alternative charges may be put on the indictment, to allow the jury to convict D of a lesser offence, where it is not satisfied that D was responsible for the more serious offence.

The following example demonstrates how charge selection may be approached in this type of case. The actual charges selected will depend on the particular evidence against each suspect.

Example

Group A chases group B, and someone in group A attacks and kills V, who is a member of group B. Some of group A carry and use knives, others inflict harm without the use of a weapon. It is not clear who inflicts the fatal injury, which is a stab wound to the heart. Not all of group A is present at the moment of the final fatal attack, and not all of those who are present at the final attack assault V.

Possible charges

• Murder: against some or all of group A, on the basis that those charged:
  • Killed with intent to kill or do GBH; or
  • Intentionally assisted or encouraged one or more of their group to intentionally kill or do GBH to any member of group B; or
  • Conditionally intended to assist or encourage one or more of their group to intentionally kill or do GBH to any member of group B, if it is necessary or should the occasion arise.
  Although proof of D2’s knowledge that one or more of the group carried knives will be evidence regarding D2’s intention, proof of such knowledge is not necessary in order to prove the requisite intent. In accordance with the 1861 Act they may all be charged as principals. In cases where a charge of murder is put on the basis of conditional intent, or where proving the requisite intent of D2 may be problematic, it may be appropriate to put an additional charge of manslaughter on the indictment. Note that in appropriate cases the judge is likely to leave manslaughter as an alternative verdict for the jury: if a jury is not satisfied that D is guilty of murder, it may find D guilty of manslaughter (s6(2) Criminal Law Act 1967).
• Manslaughter: in some group assaults resulting in the death of V, this may be an alternative charge to murder, on the basis that D is a party to a violent attack on another but without an intent to assist in causing death or really serious harm. Manslaughter may be charged, regardless whether D had knowledge that one or more of the group carried a weapon.
• Violent disorder: as an additional charge to murder or manslaughter, to allow the jury the opportunity to convict on a lesser offence, should they acquit of a homicide offence.
• Part 2 Serious Crime Act offences: as an alternative charge to murder, against those who texted or posted messages on social media sites, encouraging others to join in the proposed attack on Group B.
• Conspiracy to cause grievous bodily harm or conspiracy to murder: an additional charge against those who were involved in planning the attack beforehand.

Culpability will be further differentiated on sentence, when the judge will take into account the role played by D in relation to the offence(s) for which he is convicted.

Charging murder or manslaughter in group assaults without a weapon

Deaths caused by groups (or by individuals, whether identified or not, within a group) where no lethal weapon is carried or used require careful consideration of the mens rea of the individual participants.

Whereas there will often be no doubt that someone has committed a murder in cases where a lethal weapon is used, other cases are more problematic. The issue to be determined is whether at least one person acted with the mens rea for murder ie with an intention to kill or to do GBH. Fatal injuries may, in some cases, be evidence of such an intention. In other cases, death may have resulted where the intention of the participant(s) to the attack was no more than to cause some, but not serious, injury. In such circumstances, manslaughter, not murder, would be the correct charge.

In many cases of this kind, a central issue will be whether a particular D realised that the group were out to cause really serious injury, or might well do so if the occasion arose, and therefore the requisite intent for murder may be inferred (Jogge, 92-95); or did the D simply join in a violent attack, intending to cause only some harm, but the violence escalates and results in death? (Jogee, 96)

In such cases, when assessing the evidence, prosecutors should take the following approach:

1. Is there sufficient evidence that one of the assailants (although not identified) committed murder as a principal ie killed V with intent at least to cause serious bodily harm? If not, murder charges would not be appropriate.
2. If there is sufficient evidence that one of the assailants committed murder, consider, in relation to each D who participated in the incident the following questions:
   1. Murder
      • Was D the killer who acted with intent to kill or do GBH? or
      • Did D intend to encourage or assist the intentional infliction of serious bodily harm? or
      • Did D conditionally intend to encourage or assist the intentional infliction of serious bodily harm, if the occasion arose?
      If so, the appropriate charge is murder.
   2. Manslaughter
      • Did D intend to encourage or assist only the infliction of some harm (falling short of serious bodily harm)? or
      • Did D conditionally intend to encourage or assist only the infliction of some harm, if the occasion arose? or
      • Did D participate by encouragement or assistance in any other unlawful act which all sober and reasonable persons would realise carried the risk of some harm (not necessarily serious) to another?
      If so, the appropriate charge is manslaughter.

Lesser or alternative offences may also be charged.

Recording the basis for charging decisions

In multiple offender cases, the basis on which each defendant is charged for each offence should be clearly set out in the charging decision, recorded on the MG3 form. Where possible, the following information should be included:

• Whether the D is charged as a principal, an accessory, or as either a principal or an accessory.
• The role played by the D. For example: assisting or encouraging the offence; assisting the offence despite not being present at the scene; procuring the offence.

The same information should be recorded whenever charges are amended during proceedings.

The role of each D should also be made as clear as possible in the case summary or opening note.

Serious Crime Act 2007 offences

Part 2 Serious Crime Act 2007 (SCA) offences of encouraging or assisting crime (ss 44-46) abolished the common law offence of incitement.

Since SCA offences are inchoate in nature (the substantive offence does not need to occur), they can be used where it is not possible to charge someone as a secondary party. These include the following situations:

1. No substantive offence is committed. Secondary liability does not arise.

Example

D2 supplies a jemmy to D1, believing that D1 will use it to commit a burglary. If D1 does not in fact commit a burglary, D2 cannot be liable as a secondary party to the burglary. Nor can D2 be liable for conspiring with D1 to commit a burglary, unless there is an agreement to do so. D2 may nevertheless be charged under s45 SCA, for encouraging or assisting an offence.

2. D2 does an act capable of encouraging or assisting D1, but the act does not in fact provide encouragement or assistance: there is no connecting link between D2 and D1’s act.

(Note that although secondary liability may not require a causative link between D2's actions and the offence or D1's involvement, it does require that D2 assisted or encouraged D1.)

Example

D2 emails / tweets / posts an entry on Facebook encouraging others to commit an offence or a number of offences, such as public order offences. D1 does not read D2's communication but nevertheless commits the offence(s) that D2 encouraged. D2 performs the actus reus of a SCA offence by the act of posting / tweeting etc, regardless whether D1 receives the communication or acts upon it.

More detailed guidance on SCA offences can be found in the CPS legal guidance on Inchoate offences.

Charging common law offences or Serious Crime Act 2007 offences

Although the SCA offences are inchoate, their wording also allows them to be used where a substantive offence is committed. Therefore, there is a clear overlap between charging someone as a secondary participant and the SCA offences.

Prosecutors should be alert to cases that present the possibility of charging either as a secondary participant or a SCA offence.

Note that where an SCA offence is charged, the penalties are the same as that for the reference offences that D2 encourages or assists D1 to commit: s58 SCA.

The following should be noted in relation to the overlap between charging either as a secondary participant or a SCA offence:

• D2 gives assistance to D1, not knowing the precise offence that D1 will commit. For example, D2 drives D1 to a pub, not knowing which offence D1 is to commit, murder, robbery or an offence against the person. D1 murders V. D2 could be charged as an accessory (R v Jogee [14-15]; DPP for Northern Ireland v Maxwell), or with a s46 offence. However, the mens rea for the s46 offence is arguably stricter, and therefore more difficult to prove:
  • In R v Jogee the court clarified that it is enough that the offence committed by D1 is within the range of possible offences which D2 intentionally assisted or encouraged D1 to commit;
  • S46 SCA requires D2 to believe that one or more of a number of offences will be committed (although he has no belief as to which). See also s47 for the further mens rea required for a s46 offence.
• Where the evidence is inconclusive as to whether D2 acted as a principal or an accessory, but it must be one or the other, he may be charged as a principal (see above); however, he also may be charged with a SCA offence: s56 allows a charge where it is proved D2 committed the inchoate offence or the anticipated offence, but it is not proved which. In these circumstances, D2 should be charged as a principal, as D2 will then be liable to conviction and sentence as a principal or as an accessory, depending on the evidence that emerges during trial.
• By virtue of section 118(1) of the Criminal Justice Act 2003 a statement made by a party to a common enterprise is admissible against another party to the enterprise as evidence of any matter stated. Such evidence may be lost if a SCA offence is charged.

There may however be circumstances where it is not possible to charge a substantive offence on the evidence available. For example, where D2 has a viable claim that he is not liable as a secondary offender due to:

• An overwhelming supervening act by the principal; or
• D2’s withdrawal from the joint venture before the offence was committed; or D2’s encouragement or assistance faded to the point of mere background by the time D1 committed the offence.

In such cases a prosecutor should assess how the defence is likely to affect the prospects of conviction. In many instances, it will be proper to charge D2 as an accessory and for these live issues to be decided by the jury. In some cases however, prosecutors may conclude that the evidence sufficiently supports D2's defence, and therefore charging a SCA offence will be more appropriate (liability for the SCA offence will not be affected by the lapse in time; and in cases involving an overwhelming supervening act, D2 may still be liable for encouraging or assisting a different offence to the one committed by D1).

Charging an offence under s46 Serious Crime Act 2007

An offence under s46 SCA can be charged where D does an act capable of encouraging or assisting the commission of one or more of a number of offences, believing that one or more of those offences will be committed but he has no belief as to which.

In R v Sadique [2013] EWCA Crim 1150 the court held that the count on which the defendant was convicted was not bad for duplicity nor defective for uncertainty, but was appropriately charged and fell within the proper ambit of the s46 offence. The particulars of the count alleged:

Omar Sadique ... between the 1st day of January 2009 and 8th day of June 2010, supplied various chemicals to others, such supply being capable of assisting two or more offences of supplying/being concerned in the supply of controlled drugs of both class A and B, believing that such offences would be committed and that such supply would assist in the commission of one or more of those offences.

The indictment also included three alternative counts, alleging offences of assisting in the supply of: class A drugs only; class A or B drugs; and class B drugs only. The court commented that the trial judge's directions to the jury, which asked them to consider each count in turn, and allowed them to convict on only one count, represented sensible management designed to achieve a fair trial.

It is therefore not necessary to include separate s46 counts on the indictment for each offence identified. However, alternative counts may be included, as in the instant case.

Participating in the activities of an Organised Crime Group

Section 45 of the Serious Crime Act 2015 creates an offence of Participating in the activities of an Organised Crime Group. The CPS legal guidance on prosecuting offences under this Act can be accessed here.

Charging Conspiracy

In cases where there is no substantive offence, or where there is insufficient evidence that D participates in the substantive offence, but there is evidence from which an agreement to commit an offence can be inferred, a charge of conspiracy may be appropriate.

The essential element of the offence of conspiracy is an agreement by two or more persons to carry out a criminal act. Even if nothing is done in furtherance of the agreement, the offence of conspiracy is complete.

Statutory conspiracies are charged under section 1(1) of the Criminal Law Act 1977, and are triable only on indictment.

Where a conspiracy is charged, evidence in furtherance of the agreement / common enterprise may be admissible against another party to the enterprise: section 118(1) of the Criminal Justice Act 2003.

Further guidance on conspiracies is available in the CPS legal guidance on Inchoate offences.