Participation

Degrees of Participation

Criminal law may penalise not only those who have perpetrated the crime but also others who partake in the same events and who assist or aid the person who committed the crime, whether before or afterwards.

The common law distinguishes between different types of participation in the crime. The principal in the first degree is the person who committed the offence. The principal in the second degree is the person who aided and abetted (i.e. assisted in the commission of) the offence at the time it was committed.

The accessory before the fact is a person who assisted before the commission of the crime. An accessory after the fact was a person who knowingly assisted the person who committed the crime after it has been committed.

Persons may be guilty of offences in which they are involved or complicit. In addition to the principal/ perpetrator of the crime being criminally liable, a person who is involved,  either before, during or after the commission of the offence, may be liable as an accessory or an accomplice..

Principal

Generally, criminal law is personal. Unlike the law of civil liability where a person can be liable vicariously for the acts and torts of another,  a person or company is not generally liable for the criminal actions of another. However, this position is often specifically provided for in relation to regulatory offences, so that the company itself, in addition to its directors and controllers may be convicted of the offence.

The person who commits the crime is described as the principal. A crime may be simultaneously committed as a principal by a number of persons.  Each may be charged as principal.

The principal need not have physically committed the crime.

A person may effectively do something by procuring circumstances by which it inevitably happens. For example, a person who procures another to do something may be principal. The agent who physically does the relevant act, may also be guilty or may be entirely innocent in the particular circumstances. For example, the agent may be a child or a person lacking mental capacity.

Joint Enterprise

Where a number of persons act together to achieve a common objective, the principle of common design may apply. Each person who is a party to a common unlawful design or purpose is fully liable for acts done by others in furtherance of that purpose.

If, for example, a number of persons participate in a bank robbery and a violent crime is committed, each participant may be guilty of that crime, for example, the murder of a bank guard. There may be a thin line between a person liable as a participant in the common design and liable for the crime itself.

Generally, when persons who partake in a joint enterprise, each is liable for acts done in pursuance of that enterprise. This may include unusual consequences if they arise from the joint enterprise. However, an act going beyond what is impliedly agreed as part of the common purpose would not make fellow participants liable for this uncontemplated or unauthorised act.

Common Design

A common design need not be planned. It may arise spontaneously by concerted action, such as when a number of persons spontaneously participate in a joint attack. Once again, mere presence is insufficient. There must be some participation or proof that the person was party to the common design.

The basis of common design is an express or implied agreement or understanding. It is unnecessary to prove who did what,  provided that the circumstances in their entirety, are such that there was a common designThe precise details of how it is to be carried into effect and what steps are to be taken will not generally matter. Foresight that a particular act may be done, is usually enough.

The person concerned must generally have the requisite guilty knowledge. He must have at least the degree of intention or recklessness that would be required for a person to commit the principal offence.

Procurement & Counselling

Procurement involves taking steps to bring the desired result into effect. A person who hires another to undertake a crime may be guilty of procurement. There need not be a formal agreement. It does not require conspiracy or agreement between the principal offender and the person who procured the crime.

Procurement or counselling a crime generally involves assistance and advice prior to the commission of the offence.  A minimal amount of assistance may be sufficient for the person concerned to be found guilty. It is sufficient that the person who commits the crime has some contact with the person counselling and assisting and that that the former acted in the scope of that counsel or assistance. An obvious case of procurement is where a person hires another to murder or commit a crime on his behalf.

There must be proof that the principal offence was committed. This is unlike the case with the separate incomplete/inchoate offences of attempt, conspiracy, and incitement to commit offences. In those cases, a person may be guilty even though the crime itself was not committed. A person may be charged with incitement or conspiracy to commit murder,  if he hires a person to kill another, regardless of whether the crime takes place.

A person may counsel or procure a crime, although absent when it is physically committed. A person who procures the crime may be the principal in the case of an innocent agent. The person concerned causes the crime to be committed.

Procurement implies an attempt to secure an outcome or result. It implies a causal link. If, for example, an order is revoked, a person may not procure the offence, but he or she may be liable as having counselled it.

The Criminal Law Act 1997 provides that any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as a principal offender.

Counselling refers to encouragement and advice and is wider than procurement. It often involves arranging and soliciting the crime itself. In each case, it is necessary that the crime is committed and that the person who counselled or procured it played some role in its causation.

The link between the offence and the procurement or counselling need not be direct. An offence is required to have happened,  but it need not necessarily have been caused by the procurement or counselling. It is sufficient if another crime is committed, which is such that it is likely to flow follow from the counselling.

Aiding and Abetting

The Criminal Law Act 1997 provides that any person who aids, abets, counsels, or procures the commission of a crime may be indicted, tried, and punished in the same way as the principal offender. Aiding and abetting a crime generally requires that the relevant person be present when the crime is committed. Generally, the person aiding and abetting gives assistance and encouragement to the main offender during the commission.

A person may be convicted of a secondary offence even if the principal offender is untraceable, unknown, or even acquitted. Where a person is charged with an arrestable offence (i.e. an offence carrying a potential penalty of more than 5 years), the Criminal Law Act 1997 provides that he may be alternatively convicted of impeding the arrest of a principal offender if there is not sufficient evidence to convict him of the principal offence.

Action and Assistance

In order to be convicted as a secondary participant, proof of assistance is required. Some element of assistance or encouragement will often be present. The mere failure to act by itself would not generally incur liability. The presence of the person concerned must be shown to encourage the crime. Mere presence by itself is not enough.

A failure to act may constitute participation where the person is under a duty to act or in a position of authority. For example, a member of An Garda Siochana or a parent or others in a position of responsibility may have a duty to act to protect another in the circumstances.

As with principal crimes and offences, liability as a participator requires a so-called guilty mind (mens rea) in many cases. Generally, it must be shown that the person accused has intentionally participated or offered his participation. The person must generally have had knowledge of foresight of the offence.

Knowledge and Intent

The degree of knowledge required is not clearly defined and there are conflicting legal authorities. Generally, the person must know the nature of the offence without necessarily having to know the details or the means by which it is to be carried out. Other cases put forward tests that are in broader terms.  For example, being present when a violent act is undertaken, given encouragement and holding a weapon may be usually sufficient participation.

Generally, the assistance or encouragement must be given intentionally. A person who innocently comes upon a crime, would not be thereby guilty of participation. There are different views on the extent of knowledge of the intent of the principal offender that the participant must have. In Ireland, it is necessary that the defendant intentionally give assistance to a crime which he knows or anticipates or a crime of a similar nature.

A person may be convicted of giving assistance after a crime has been committed. If a person believes that another has committed an arrestable offence (maximum penalty at least 5 years) an act dome with the intention of preventing his arrest, is itself an offence. This was formerly known being an accessory after the fact, at common law.

Companies

Companies are capable, in principle, of committing some types of criminal offences. The statute providing for regulatory offences commonly provides that the offence may be committed by a company and also by officers who assist or partake in the commission of the offence concerned.

Companies may be convicted of many regulatory offences. Generally, these are so-called strict liability offences where liability arises because the offence has been committed and the particular state of mind or intention is irrelevant.

The courts have recognised, in recent years, the possibility that a company may be attributed  the intent and state of mind of its controllers and directors. Generally, the intention of managers and senior personnel are regarded as the controlling mind of the company.

It is possible, in principle, for companies to be convicted of manslaughter. Generally, the requisite guilty knowledge, gross negligence, or recklessness must be found at a sufficiently high level of management before the company entity itself can be prosecuted.

Withdrawal

It is possible to withdraw from aiding and abetting, procuring or counselling. However, it must be sufficiently unequivocal. Mere inaction is not enoughto undo what has been done. It is likely to be possible at an early preparatory stage, rather than just before the crime. A tangible withdrawal is required.

Where a person has committed an arrestable offence, any other person who, knowing or believing him or her to be guilty of the offence or of some other arrestable offence, does without reasonable excuse any act with intent to impede his or her apprehension or prosecution shall be guilty of an offence.