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LAWS08142-AUXILIARY OFFENCES, Study notes of Law

Southwestern Law SchoolLaw

LAWS08142-AUXILIARY OFFENCES SUMMARY NOTES

Typology: Study notes

2023/2024

Available from 06/25/2024

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AUXILIARY OFFENCES
Criminal liability is not limited to the commission of specific offences. A number of auxiliary
forms of liability also exist, which apply to criminal offences in general. In these lectures,
we consider two different forms of auxiliary liability. First, we consider the inchoate
offences, which criminalise inciting, conspiring and attempting to commit other crimes.
Second, we consider art and part liability, by which participants in a criminal venture can
become liable for an offence without actually committing it.
1. Inchoate Offences
‘Inchoate offences’ is the general term which is used to refer to three auxiliary offences:
incitement to commit an offence, conspiracy to commit an offence and attempt to commit
an offence. ‘Inchoate’ means imperfect or incomplete; what is ‘inchoate’ about these
offences is that they do not require the commission of the relevant complete offence. (It is
possible, however, to charge some of these offences – incitement and conspiracy – even
when the complete offence is carried out.)
Reading:
Gane, Stoddart and Chalmers (4th edn), ch 6 OR
Jones and Christie (5th edn), ch 6 and paras 7-37 to 7-61.
A. Incitement
It is an offence to incite another person to commit a criminal offence, intending that the
principal offence be committed. ‘Incitement’ is understood broadly and encompasses, for
example, requesting or encouraging another person to commit an offence. This offence has
rarely been discussed in the High Court; the leading case is Baxter v HM Adv 1998 JC 219.
B. Conspiracy
The basic concept of conspiracy is not difficult to grasp. A conspiracy is, or ought to be,
simply an agreement between two or more persons to commit a crime. What makes the
Scots law of conspiracy difficult to understand is the tendency towards complex
indictments. These will typically state that X and Y did conspire to do a certain act or
pursue a certain course of conduct, and in pursuit of that agreement did do a number of
other things.
(i) General definition
“A criminal conspiracy arises when two or more persons agree to render one
another assistance in doing an act, whether as an end or as a means to an end,
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AUXILIARY OFFENCES

Criminal liability is not limited to the commission of specific offences. A number of auxiliary forms of liability also exist, which apply to criminal offences in general. In these lectures, we consider two different forms of auxiliary liability. First, we consider the inchoate offences, which criminalise inciting, conspiring and attempting to commit other crimes. Second, we consider art and part liability, by which participants in a criminal venture can become liable for an offence without actually committing it.

1. Inchoate Offences ‘Inchoate offences’ is the general term which is used to refer to three auxiliary offences: incitement to commit an offence, conspiracy to commit an offence and attempt to commit an offence. ‘Inchoate’ means imperfect or incomplete; what is ‘inchoate’ about these offences is that they do not require the commission of the relevant complete offence. (It is possible, however, to charge some of these offences – incitement and conspiracy – even when the complete offence is carried out.) Reading: Gane, Stoddart and Chalmers (4th^ edn), ch 6 OR Jones and Christie (5th^ edn), ch 6 and paras 7-37 to 7-61. A. Incitement It is an offence to incite another person to commit a criminal offence, intending that the principal offence be committed. ‘Incitement’ is understood broadly and encompasses, for example, requesting or encouraging another person to commit an offence. This offence has rarely been discussed in the High Court; the leading case is Baxter v HM Adv 1998 JC 219. B. Conspiracy The basic concept of conspiracy is not difficult to grasp. A conspiracy is, or ought to be, simply an agreement between two or more persons to commit a crime. What makes the Scots law of conspiracy difficult to understand is the tendency towards complex indictments. These will typically state that X and Y did conspire to do a certain act or pursue a certain course of conduct, and in pursuit of that agreement did do a number of other things. (i) General definition “A criminal conspiracy arises when two or more persons agree to render one another assistance in doing an act, whether as an end or as a means to an end, 1

which would be criminal if done by a single individual” (Lord Justice-Clerk Grant, HM Adv v Wilson, Latta and Rooney , unreported (1968)) “[The crime of conspiracy] is constituted by the agreement of two or more persons to further or achieve a criminal purpose. A criminal purpose is one which if attempted or achieved by action on the part of an individual would itself constitute a crime by the law of Scotland. It is the criminality of the purpose and not the result which may or may not flow from the execution of the purpose which makes the crime a criminal conspiracy.” (Opinion of the Court, Maxwell and Others v HM Adv 1980 JC 40) As these quotations suggest, the key elements of conspiracy are agreement and a criminal purpose. No action in furtherance of the agreement or purpose need be proved. In practice, however, the actions of the accused will often provide the evidential basis for finding that an agreement existed. See e.g. Coleman v HM Adv 1999 SCCR 87. (ii) Acts done in pursuance of the conspiracy As noted above, the general practice in conspiracy charges is to allege both a conspiracy and acts carried out in furtherance of that conspiracy. Confusingly, such acts are often themselves independently criminal. What verdicts are open to juries in these cases? See e.g.: HM Adv v Wilson, Latta and Rooney (above) HM Adv v Milnes and Others , unreported (1971) Sayers v HM Advocate 1981 SCCR 312 (iii) The requirement for more than one party What effect does this requirement have if only one of the alleged parties to the conspiracy is charged? Or if the other alleged parties are acquitted? See e.g. *Howitt v HM Adv 2000 JC 284. C. Attempt Statute confirms that attempting to commit any criminal offence is itself an offence: Criminal Procedure (Scotland) Act 1995, s 294. The actual definition of criminal attempts, however, is still governed by the common law. (i) Actus reus The central question here is how close an accused must come to committing a crime before he / she may be said to have attempted it. At what point does one cross the line from merely intending to commit a crime to actually trying to commit it? Whilst there is 2

offence is committed. Where an offence is committed, however, one is guilty art and part of the offence itself. Hence, this is sometimes described as a form of derivative liability, or ‘guilt without commission’. Reading: Gane, Stoddart and Chalmers (4th^ edn), ch 5 OR Jones and Christie (5th^ edn), paras 7-03 to 7-36. A. The common purpose The basic principles of art and part liability are laid down in the judge’s directions in * HM Adv v Lappen 1956 SLT 109. The basis of liability is a common purpose to commit a crime. Proof of such a purpose is therefore crucial. See e.g.: *HM Adv v Kerr (1871) 2 Couper 334 HM Adv v Welsh and McLachlan (1897) 5 SLT 137 HM Adv v Johnstone and Stewart 1926 JC 89. B. Contribution to the common purpose Generally, it does not matter precisely what contribution one makes towards the common purpose. All parties are equally responsible for the intended offence, regardless of their particular contribution. One must, however, make some contribution, however minimal. For example, merely being present at the scene of a crime, or turning up there, is not sufficient.

  • HM Adv v Kerr (above) McLaughlan v HM Adv 1991 SLT 660 Kabalu v HM Adv 1999 SCCR 348 It is also helpful to distinguish two kinds of contribution that an accused might make to a common purpose. The first is where the accused is merely an accessory to acts carried out by a principal offender. The second is where the accused are all, in reality, principal offenders. This distinction may be important where the accused is charged along with others who are acquitted. See e.g.: Young v HM Adv 1932 JC 63 Capuano v HM Adv 1984 SCCR 415 *Howitt v HM Adv 2000 JC 284 In modern times, art and part guilt does not attach to contributions made after the principal offence has occurred. However, this may amount to another offence, e.g. attempting to defeat the ends of justice. 4

C. Going beyond the common purpose Cases of art and part liability are not always as simple as each party to the offence doing what was agreed to. Courts often encounter cases where one person has done something going beyond the scope of the common purpose: e.g. killing in the course of a robbery, or use of a weapon that was not agreed upon. Under what conditions can the other parties to the common purpose be liable for such actions art and part? O'Connell v HM Adv 1987 SCCR 459 Carrick v HM Adv 1990 SCCR 287 Codona v HM Adv 1996 SLT 1100 *McKinnon v HM Adv 2003 JC 29 D. Dissociation from the common purpose Can a person, who is originally a party to a common purpose, dissociate him- or herself from that common purpose so as to avoid conviction? *MacNeil v HM Adv 1986 SCCR 288 E. Art and part guilt of statutory offences S 293 of the Criminal Procedure (Scotland) Act 1995 provides that one may be convicted of any statutory offence, notwithstanding that one is only guilty of that offence art and part. But what happens where the statute apparently limits the range of persons who can be convicted of the offence, and the accused is not in that category of persons? See e.g.: Vaughan v HM Adv 1979 SLT 49 Reid v HM Adv 1999 SCCR 19 5