Secondary Liability
Criminal Law > Secondary Liability
What Is Secondary Liability?
Candidates often lose marks on SQE1 by applying the pre-2016 foresight test rather than the current Jogee framework — the shift from 'mere foresight' to 'intent to assist or encourage' is tested repeatedly, and facts that indicate foresight alone will not establish secondary liability under modern law. Under section 8 of the Accessories and Abettors Act 1861, a person who aids, abets, counsels, or procures the commission of an offence is liable to be tried, indicted, and punished as a principal offender. The secondary party (accessory) does not personally carry out the actus reus of the offence — they assist or encourage the principal who does.
The principal offender commits the substantive crime; the secondary party's liability is derivative — it depends on the principal having committed (or at least attempted) the offence.
Secondary liability often overlaps with inchoate offences, and SQE1 questions frequently test both concepts together.
Key Principles for SQE1
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Aiding: Giving help, support, or assistance to the principal (e.g., supplying a weapon, acting as a lookout).
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Abetting: Encouraging or inciting the principal at the time of the offence (e.g., shouting encouragement during an assault).
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Counselling: Advising, encouraging, or soliciting the principal before the offence is committed.
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Procuring: Bringing about or producing the offence — implies a causal link between the secondary party's actions and the offence. For the wider framework of how secondary parties relate to the core principles of Criminal Law, see the complete guide.
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Mens rea of the secondary party: The accessory must (i) intend to assist or encourage the conduct element of the offence, and (ii) know or believe that the principal will act with the mens rea required for the offence (R v Jogee [2016]).
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R v Jogee [2016] — the key shift: The Supreme Court departed from the previous joint enterprise doctrine and held that foresight of the principal's possible actions is evidence of intent, not a substitute for it. The accessory must intend to encourage or assist the offence, not merely foresee it as a possibility.
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Joint enterprise: Where two or more people participate in a common criminal purpose. After Jogee, the secondary party must intend to assist or encourage the principal's offence — mere foresight that the principal might commit a further offence is not enough.
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Withdrawal: A secondary party may avoid liability by effectively withdrawing from the common purpose before the offence is committed. Withdrawal must be timely and unequivocal — merely walking away may not suffice if the accessory has already provided substantial assistance.
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Innocent agency: Where the 'principal' is an innocent agent (e.g., a child or someone who lacks mens rea), the person who procures or controls the agent is treated as the principal offender.
Exam tip
In any group scenario question, ask: (1) Did the secondary party aid, abet, counsel, or procure? (2) Did they intend to assist or encourage (not merely foresee)? (3) Was there an effective withdrawal? The Jogee framework is your map through these questions.
How This Appears in SQE1 Questions
SQE1 questions typically describe a group scenario and ask which party is liable and on what basis. This is a classic SQE1 trap: examiners present facts suggesting foresight of the principal's conduct but requiring proof of intent to assist or encourage. The key trap is applying the pre-Jogee foresight test — since Jogee, the accessory must intend to assist or encourage, not merely foresee the principal's crime. Questions also test whether mere presence at the scene is enough (it is not, without encouragement or assistance) and whether an effective withdrawal has occurred.
Common Mistakes Students Make
- Applying the pre-Jogee foresight test — since 2016, the secondary party must intend to assist or encourage, not merely foresee the principal's offence
- Treating mere presence at the scene as sufficient for secondary liability — presence alone, without encouragement or assistance, is not enough
- Confusing aiding (assistance) with abetting (encouragement) — they are distinct forms of participation
- Assuming withdrawal is straightforward — it must be timely, unequivocal, and proportionate to the assistance already given
Quick Summary
- Secondary parties must have intended to assist or encourage (not merely foresee) the principal's offence.
- Mere presence is not enough without encouragement or assistance.
- R v Jogee [2016] is the landmark case that changed the law.
Want to test this now? Try a few SQE1-style questions below before moving on.
Test Yourself
Test yourself
Quick check questions based on this article.
Question 1
Scenario
Two friends, a man and a woman, plan to rob a convenience store together. They agree that the man will enter the store and demand money from the till while the woman waits outside in a car with the engine running, ready to drive them away. They agree that no weapons will be used and that the man will simply demand the money verbally. The man enters the store as planned. The shopkeeper refuses to hand over any money. The man, frustrated, picks up a glass bottle from a display and strikes the shopkeeper across the head with it. The shopkeeper suffers a deep laceration and a fractured skull. The man grabs cash from the till and runs to the car. The woman drives them both away. The woman tells the police she had no idea the man would use violence beyond verbal demands. She says she was 'horrified' when she saw the man running out of the store with blood on his hands but panicked and drove away. The man confirms that the plan was for a verbal demand only and that he acted on impulse when the shopkeeper refused. The shopkeeper requires surgery and spends two weeks in hospital.
What is the woman's criminal liability for the injury to the shopkeeper?
Question 2
Scenario
A woman and her partner plan to defraud a bank by submitting a fraudulent mortgage application. The woman prepares false payslips and bank statements. Her partner submits the application using the false documents. The mortgage is approved and funds of £250,000 are released. Before the application is submitted, the woman has second thoughts. She telephones her partner and says she no longer wants to proceed. Her partner tells her it is too late to back out and submits the application the following day. The woman does not contact the bank or take any steps to alert it to the fraud. Three months later, the woman's partner is unable to make mortgage repayments. The bank discovers the fraud and reports both parties to the police. The woman is charged as a secondary party to fraud by false representation under section 2 of the Fraud Act 2006. The woman's solicitor identifies a potential conflict of interest because the solicitor's firm also acts for the bank on unrelated commercial matters. The solicitor informs the woman and obtains her consent to continue acting after erecting an information barrier within the firm.
What is the most accurate assessment of the woman's liability as a secondary party to the fraud?
Question 3
Scenario
A teenager creates a detailed map of a school building, marking the locations of all CCTV cameras, emergency exits, and the headteacher's office where a safe containing cash is kept. The teenager gives the map to an older acquaintance, knowing the acquaintance intends to burgle the school. The acquaintance uses the map to enter the school at night through an unmarked side entrance, avoids the CCTV cameras, and steals £8,000 from the safe. The teenager does not accompany the acquaintance to the school. The teenager is 17 years old. Police recover the map from the acquaintance's home and trace it to the teenager through handwriting analysis. The teenager is charged as a secondary party to burglary.
Which of the following best describes the teenager's criminal liability?
Practice with full exam-style questions
Related Topics
- SQE1 Criminal Law: Complete Guide
- SQE1 Criminal Law: Actus Reus and Mens Rea
- SQE1 Criminal Law: Inchoate Offences
- SQE1 Criminal Law: Criminal Defences
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