UNIVERSITY OF CAMBRIDGE
FACULTY OF LAW
CRIMINAL LAW LECTURES
LENT TERM 2021-22
Professor Antje du Bois-Pedain
COMPREHENSIVE LECTURE HANDOUT:
PARTICIPATION IN CRIME
(ALL LECTURES)
NOTE:
This document contains all lecture handouts for the sub-topic Participation in
Crime, which is a 5-lecture-hour unit.
The release pattern for this unit is: Three lectures in the week starting 31
January, followed by two lectures in the week starting 7 February.
Below I list the page numbers for the lecture handouts for each lecture, along
with the date where the lecture recording will be released.
Participation in Crime (another word for this is Complicity) is a complex topic, and
one of the larger ones on the syllabus (as you can tell from the fact that it is allocated
5 lecture hours rather than 4 by the lecture team). If for any reason you do not
already watch the recordings on the day when they get released, but later, please
make sure that you spread your watching of these lectures over at least 3 different
days. Information needs time to settle and rushing through the material means it can
easily get too much.
LECTURE 1 (released on Tuesday 1 February 2022): pp. 2-8
LECTURE 2 (released on Wednesday 2 February 2022): pp. 9-15
LECTURE 3 (released on Thursday 3 February 2022): pp. 16-26
Please note that this recording is slightly over 1 hour long (1 h and 5 minutes, to be
exact). I indicate on the handout when you might usefully take a break when listening
to this recording.
LECTURE 4 (released on Tuesday 8 February 2022): pp. 27-32
LECTURE 5 (released on Thursday 10 February 2022): pp. 33-37
, LECTURE 1:
INTRODUCTION TO PARTICIPATION IN CRIME
A. Criminal liability in multi-party settings
Take the following case:
A and B beat up V together. B pins V’s body against the wall while A pushes his fist
into V’s face, causing some bruising.
They do so because earlier that day, C promised them good money for beating up V,
against whom C has a grudge.
They knew where to find V because one of their friends, F, whom they had told that
they were looking for V, phoned A to tell him that V was down at the pub, where F had
just arrived as well.
You already have the legal tools available to analyse A’s liability. Clearly, by hitting V on the
nose with his fist, A has committed battery. The actus reus of battery is the infliction of
violence upon another person, the mens rea is to do so with intent or recklessly. Here, A has
inflicted violence upon V’s body with intent. Depending on whether A’s blow with his fist
caused any bruising, A may also have committed the more serious offence of assault
occasioning actual bodily harm (s 47 OAPA 1861) against V.
You will also be hopeful about your ability to analyse B’s liability. Like A, B has committed
battery. By pinning V to the wall, B has clearly also inflicted violence upon V, again with
intent to do so. But you may be less certain about whether B has also committed an assault
occasioning actual bodily harm. The bruising to V’s face, after all, was not directly caused by B
pinning V to the wall but by A pushing his fist into V’s face. So you may need further
arguments to hold B liable for an assault occasioning actual bodily harm, too.
What about C? Can we analyse C’s conduct as constituting a battery? It seems not. He hasn’t
laid a finger on V. To hold C criminally liable for what happened to V, we need some more
legal tools. The offence of battery on its own is not going to do the trick.
The same is true for F. We certainly cannot say straightforwardly that F committed a battery of
V, since he didn’t use any violence against V.
The law of secondary liability (for which equivalent terms are: secondary participation,
accessorial liability, or complicity) was developed to solve these difficulties.
B. Who are the parties to a crime?
The law on participation in crime distinguishes between primary and secondary parties to a
crime. The primary parties – or principals – are those participants who satisfy all the
definitional elements of the crime. Another expression for principal is the perpetrator.
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,The secondary parties are the parties who are not principals. Other words used for secondary
parties are accessories or (less frequently) accomplices. The legal rules which govern the
liability of secondary parties can, for this reason, be referred to as rules on “secondary
participation”, “secondary liability”, “accessorial liability” or (especially in the US)
“complicity”. All these expressions mean the same thing: the rules that govern how someone
who is not a principal can be held responsible for the commission of the principal’s crime.
In these lectures, I will often refer to the principal simply by calling him P and to secondary
parties by calling them S (especially when summarising the facts of decided cases).
Spelling alert! The principal (or principal offender) I have been talking about is spelled with
“al” at the end. It has nothing to do with the more familiar word, principle, with the “le”
spelling at the end. Principal with an al-spelling means “main”. It can be used as a noun or as
an adjective (as in: the principal; the principal offender). This principal (with the “al” spelling)
is the main perpetrator of the crime.
C. Who is a Principal?
The person who satisfies all the definitional elements of an offence is referred to as the
“principal” or “perpetrator” (these terms are used interchangeably).
English law uses the notion of “joint principals” or “co-perpetrators” very sparingly:
a) In respect of those who commit an offence together, each meeting the definitional
requirements of the offence:
Macklin and Murphy (1838) 2 Lew. C.C. 225, 168 E.R. 1136
Facts: DD attacked a policeman with various weapons, killing him.
b) This includes those who each carry out the actus reus in part with full mens rea:
Bingley (1821) Russ. & Ry. 446, 168 E.R. 890
Facts: DD each carried out a separate part of the forgery of bank notes.
“The essential ingredient for joint principal offending is a contribution to the cause of the actus
reus. If this is absent, the fact that there is a common purpose or a joint enterprise cannot
transform the offending into joint principal liability.” (Lord Kerr in Gnango [2011] UKSC 59,
at [129]).
D. What is secondary liability?
Secondary liability is a distinct way of attributing responsibility for actions and outcomes
to persons. Principals are held responsible for what they themselves do and cause. Secondary
parties are held responsible for what they get or help other people (the principals) to do and
cause.
Secondary liability is a different strand of responsibility-attribution compared to principal
liability. It is needed because the secondary party’s actions do not meet the definitional
requirements of the principal’s offence.
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, Think of the criminal law as something where you have to have principles of responsibility-
attribution to persons because you want to hold people responsibility for the outcomes of their
actions. Last term we looked at two imported modes of responsibility-attribution already:
causation, and omissions-based liability. These two modes of responsibility-ascription applied
to the central agent, the main perpetrator who we now think of as a principal offender.
When we analysed causation, we wanted to see that the person was an operative and substantial
cause of what had happened, and we learned that our starting point for who we would point the
finger at, would always be the person closest to the harm, the most recent actor, because the
law tends not to go back to earlier actors when the most recent actor, through his free,
deliberate and informed actions, brings about the harm.
We also learned that this tendency of not going back to earlier actors when there was a more
recent actor is not a strict legal rule but more like an important consideration. But even though
it is not a strict rule, it is at the heart of why we operate with secondary liability in so many
cases. The rules of secondary liability apply to certain kinds of earlier actors because they fit
the earlier actor’s conduct more precisely than a causation analysis does.
That said, there is a lot of discussion in the literature whether, if we were to accept very wide
definitions of causation, accomplice liability would become superfluous. I will go into this
question at the end of these lectures, after we have looked at the rules of secondary liability.
The important thing to remember is that (even if it could be shown that accessorial conduct is
causal in respect of the offence) we might still want to ascribe responsibility to those who are
not principals according to rules that define the relevant behaviour in distinct terms, and with
mens rea requirements that differ from those for a principal agent.
For instance, if, in relation to the example given at the start of this lecture, we ask the question,
‘Why do we want to hold C responsible for what happened here?’, we want to hold C
responsible for A and B’s crime, and that is the argument that we are trying to develop when
we hold people responsible for what has happened by way of secondary liability. And so, even
if we were to say causation is wide enough to cover C’s conduct as well, we might think that
what's important about what C has done is not this causal link as such, since at the end of the
day it was A and B who have beaten up V. This was their doing, and so if C is responsible for
V’s beating, he is responsible for that because he is in a certain way responsible for A and B’s
actions.
The principles of secondary liability have developed to capture that kind of responsibility on
the part of C.
E. Historical background
Historically, the common law thought that it made a difference whether someone was at the
scene of the crime or not. Hence it distinguished between “principals in the first and second
degree” (those who did the criminal act or helped its commission at the scene of the crime) and
“accessories before and after the fact”. These terms and concepts are only of historical interest
today. “Principals in the second degree” are nowadays accessories, as are “accessories before
the fact” (who are now simply called “accessories”), whereas those who assist only after the
crime has been completed are liable for different offences (not on the syllabus) and are no
longer referred to as accessories at all.
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