Lesser Included Offences, Alternative Offences and Accessorial Liability

Published date01 December 2016
Date01 December 2016
AuthorDennis J Baker
Subject MatterArticles
CLJ675817 446..464 Article
The Journal of Criminal Law
2016, Vol. 80(6) 446–464
Lesser Included Offences,
ª The Author(s) 2016
Reprints and permissions:
Alternative Offences and
DOI: 10.1177/0022018316675817
Accessorial Liability
Dennis J Baker
University of Surrey, UK
In this essay I shall examine when an alternative offence and also a lesser-included offence is
available for an accessory. Particular reference will be made to the offences of manslaughter
and murder. It shall be argued that the decision in R v Jogee and Ruddock v The Queen is wrong as
far as it holds that an accessory can be liable for manslaughter when the principal has been
convicted of murder, because it is necessary to prove that the accessory intended the principal
to perpetrate the actus reus of the relevant offence with the requisite mens rea for that offence.
In such a scenario the accessory does not intentionally assist or encourage the more serious
offence (murder), so she cannot be derivatively liable for it, and the principal does not per-
petrate the less serious offence (manslaughter), so there is no offence of manslaughter for the
accessory’s liability to derive from. The accessory only attempts to assist or encourage the
principal to engage in conduct that has the potential to form the conduct element of con-
structive manslaughter. Such a conviction would rest on a presumption of participation in a
result crime, when no result was in fact caused by the non-perpetrated crime (manslaughter),
but instead the result was caused by an alternative more serious crime (murder), which was in
fact perpetrated. If the principal had done the actus reus that the accessory intended (i.e.
unlawfully inflict actual bodily harm), the victim most likely would not have been killed and it is
pure speculation to suggest that the victim could have been killed by actual bodily harm as
opposed to the act of grievous bodily harm or an act of intentional killing, which in fact killed
the victim. It shall be argued that in such cases it is best to prosecute the putative assister or
encourager under ss 44 or 45 of the Serious Crime Act 2007, for attempting to assist or
encourage a potential aggravated assault.
R v Jogee, complicity, alternative offences, murder/manslaughter, semi-innocent agents,
fundamental different act rule
Corresponding author:
Dennis J Baker, School of Law, University of Surrey, Faculty of Arts and Social Sciences Austin Pearce Building, Guildford, Surrey
Email: dennis.baker@surrey.ac.uk

In this essay I shall try to reconcile three themes: (1) the requirements set by the Supreme Court and the
Board of the Judicial Committee of the Privy Council reinterpreting the mental element in complicity as
requiring nothing less than intention;1 (2) the issues raised by what I shall call the ‘alternative offence’
rule; and (3) the issues raised by the ‘fundamental different act (offence?)’ rule. The latter has been used
as a maxim of evidence for inferring intention in common purpose complicity scenarios, but in light of
the Supreme Court and the Board holding that the mental element in complicity is intention, it is
important to consider whether the maxim has a wider application. It is a useful standard for excluding
liability for the accessory for acts of the principal that were not intended and that were not the actus reus
of a lesser-included offence, but can it also exclude potential liability arising from fundamentally
different act situations where there is technically a shared intention as to the fault and actus reus
elements of the anticipated target crime?
In the latter situation the maxim is problematic because it has been used to exclude liability for acts that
form the actus reus (i.e. an act of grievous bodily harm (g.b.h.)) of the jointly intended collateral offence
(for example, constructive murder), that are fundamentally different acts (means) for inflicting g.b.h. For
example, an act of stabbing is fundamentally different from punching a person with a bare fist—but both
actions/means could be used to inflict g.b.h. Any application of the fundamental different act rule has to be
reconciled with the mental element in complicity, which requires intention on the accessory’s part, because
the Supreme Court and Board have held that the rule still has a role to play.2 In recent decades the rule has
worked more as an evidential maxim and has been used to exclude an inference of fault for complicity in
joint enterprise scenarios when a principal completely departed from what was intended by the parties to
the underlying joint enterprise and perpetrated a collateral offence that was neither intended nor foreseen3
by the accessory.4 There is no doubt that it is an evidential tool for inferring that the collateral offence
perpetrated by the principal was not one that the accessory intended the principal to perpetrate, because it
was different from what the accessory intended as a potential collateral offence.
The ‘fundamental different act’ maxim and the intention requirement will be difficult to reconcile
where the result5 of the different acts are intended by all parties to be the same (for example, all parties
intend the result of g.b.h., but not the consequence of death), but the principal departs from the common
intention and perpetrates an act of g.b.h. that is inherently more likely to cause the victim’s death (i.e.
stabbing V in the throat instead of kneecapping her) and that act has the unintended consequence of
causing the victim’s death.6 Technically, in such cases, all parties should be liable for murder because
the principal has perpetrated the actus reus (the principal has inflicted g.b.h. which has caused V’s death)
of the offence of (constructive) murder with the requisite fault (intending to inflict g.b.h.) and the
accessories have assisted and encouraged intending the principal to inflict g.b.h. The only difference
in such cases is that the principal has used inherently lethal actions/means to inflict the g.b.h., but the
principal has perpetrated the actus reus for murder with the requisite fault and that is what the acces-
sories technically intended. One way to resolve the conflict would be to abrogate the offence of
1. R v Jogee and Ruddock v The Queen [2016] 2 WLR 681 at 704–705. The Supreme Court of the United States also has held that
mental element in complicity is intention and nothing less. Rosemond v U.S. (2014) 134 S.Ct. 1240.
2. R v Jogee and Ruddock v The Queen, above n. 1 at 707F–G.
3. The recklessness fault element applied in R v Bryce [2004] 2 Cr App R 592 at 611 per Potter LJ; R v Powell [1999] 1 AC 1, was
abrogated by R v Jogee and Ruddock v The Queen, above n. 1.
4. D.J. Baker, Reinterpreting Criminal Complicity and Inchoate Participation Offences (Routledge: Oxford, 2016) 49–55, 69–85.
5. von Wright writes: ‘The connection between an action and its result is intrinsic, logical and not causal (extrinsic). If the result
does not materialize, the action simply has not been performed. The result is an essential ‘part’ of the action. It is a bad mistake
to think of the act(ion) itself as a cause of its result.’ G.H. von Wright, Explanation and Understanding (Routledge: Oxford,
2011) 67–68.
6. Cf. R v Gamble [1989] N.I. 268. On when intending the actus reus of a constructive crime is and is not sufficient, see Brown v
State (1887) 11 NE 447 (1887); Thomas v Commonwealth (1905) 27 Ky L Rep 794, R v Gaylor (1857) 7 Cox, CC 253.

The Journal of Criminal Law 80(6)
constructive murder, but that is unlikely to happen for some time.7 Nonetheless, the fundamental
different act rule can still be invoked in such cases.8 In this sense, it is used as a doctrinal constraint
on liability rather than merely as an evidential maxim for inferring intention.
The fundamental different act rule and the alternative offence rule need careful consideration,
because in R v Jogee and Ruddock v The Queen,9 the Supreme Court and the Board held that for
centuries the English law of complicity required nothing less than intention. Lord Toulson and Lord
Hughes held that the ancient and modern authorities right up until the decision in Chan Wing-Siu v The
Queen,10 showed that the mental element in complicity was intention. It also has been held that there is
no such thing as joint enterprise complicity, because the actus reus in all complicity has to be either an
act of encouragement or an act of assistance and that this is expressly stated in s. 8 of the Accessories and
Abettors Act 1861, which was merely declaratory of the common law.11
Following R v Jogee the mens rea for complicity liability is intention. D must intend to assist or encourage
P with the ulterior intention that P use his or her assistance (or be encouraged by his or her encouragement) to
perpetrate the anticipated target crime. Foresight is evidence for inferring intention and nothing more.
Foresight of virtual certainty is required for inferring intention,12 but evidence of any degree of foresight
might be relevant for ascertaining foresight of contingencies in the context of conditional intention. Hence, it
does not matter that D only foresaw that there was a 10% chance that D and P might be interrupted by a
security guard whilst jointly perpetrating a burglary, as long as D foresaw the virtually certain response from
P upon that contingency arising (a security guard approaching them) was that P would use lethal force.
Section 8 of the Act of...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT