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“Wrong place at the wrong time” –  but when is “mere presence “ enough?

21/09/2023

Can “doing nothing” still amount to “something” in a criminal trial?

The net for potential accessories present at the scene of a crime is cast far wider than is often first appreciated. That is particularly so where a permissible inference of encouragement applies.

[1] Assistance or Encouragement:

In terms of acts, the modern approach to secondary liability requires some degree of assistance or encouragement by a defendant to incur liability. A defendant’s presence would need to be capable of providing this.

[2] Mental Ingredients:

In order to assist or encourage, a defendant would also need to know the “essential” matters of the primary offence. Presence without any actual knowledge of the essential matters that constitute the underlying offence would not incur any liability.  

Furthermore another essential pre-requisite is intention. As it was stated in Jogee [2016] UKSC 8 [cf-para9]:

“…the mental element in assisting or encouraging is an intention to assist or encourage the commission of the crime and this requires knowledge of any of existing facts necessary for it to be criminal…If the crime requires a particular intent, D2 must intend to assist or encourage D1 to act with such intent…”

[3] Encouragement:

However, for an individual who asserts to have been “merely present” and has “done nothing”, it is less well understood just how liability can operate as a permissible inference. In certain circumstances such presence can provide inferential support of encouragement.

[4] “Mere” Accidental Presence Alone:

The presence of a defendant’s who literally just “happened to be there” by “pure accident”, wholly unconnected to the commission of the offence in any manner, is unlikely to hold any actual evidential value. As a result, there will not be any permissible inference.

[5] Voluntary Presence: Wilful Communication:

However, where a defendant may know of the principal’s offence, and his presence can be said to have been voluntary, a value may begin to emerge, depending on the circumstances.

That value could be the potential inference of “encouragement” to a principal.

In addition to the knowledge elements, in order for such voluntary presence to bite, the prosecution must have evidence to prove that defendant i) intended to encourage and ii) wilfully did encourage that particular offence.

The Privy Council in Robinson v The Queen [2011] UKPC3 made it plain that – as a bare minimum- there must be some evidence of communication showing a willingness to actively assist:

“ Mere approval of (i.e ”assent to” or “concurrence in”) by a bystander who gives no assistance does not without more amount to aiding…[and] that the communication of willingness to give active assistance is a minimum requirement…”

In R v Stringer [2011] EWCA Crim 1396, where the appellant had submitted he was a mere spectator to a murder, the Court of Appeal referred to a 2007 report “Participating in Crime” from the Law Commission [Law Com 305] at para.2.33;

 “…in a case of encouragement , as contrasted with assistance, the encouragement must have the capacity to act on P’s mind…”.

The Court of Appeal noted that “encouragement by its nature involves some form of transmission of the encouragement by words or conduct, whether directly or through an intermediary”.  For example, it would be “unreal” to incur liability, where D and P being were both present at the same football match, and where D shouted words in a large crowd some distance away from an incident on the pitch involving P.

[6] Voluntary Presence: A Purposive Link:

It also seems that the circumstances must be sufficient to be capable of inferring a “purposive link” to the commission of the offence.

In Clarkson (1971) 55 Cr. App. R 445, Ct-MAC, a group of soldiers were voluntary present at the door of a room in a barracks in Germany where a fellow soldier was in the process of raping another. The soldiers were “purposively present” without offering any degree of opposition, in the sense that their continued presence had a purpose linked to the commission of the offence; effectively they were willing “voyeurs” making a contribution of encouragement to the act.

A more recent example might be the range of circumstances in R v Andrus Giedraitis 2016 EWCA Crim 1887, where a death had occurred within a building as a result of an arson by the principal.  The Court of Appeal found there to be sufficient evidence to infer encouragement by the appellant where he had:

i)   Been ‘present” in company with the principle beforehand and afterwards.
ii)  Returned to the scene of several occasions, even after the fire had been lit, together with the principal.
iii) Not sought to raise the alarm at any stage.

In such circumstances, it will purely be a question for the jury as to whether they find that it does or it does not, as a matter of fact, amount to encouragement [subject to the qualification that if no fair minded jury could properly reach that conclusion, the judge should withdraw the case].

[7] Doing “nothing”: when can that still be “something”?

In the vast majority of circumstances, merely being present and witnessing a crime being committed does not mean an individual has an obligation to alert the authorities.  Failing to act or prevent an offence from continuing does not necessarily incur liability. There is no general duty to act as a “good Samaritan”.

There are some exceptions such as where a parent owes a specific duty of car to their chid, or a police officer towards a person in his custody.

However, the prosecution may still seek to rely upon any “inaction” as providing an inference of encouragement and even wider knowledge.

In Willett [2010] EWCA Crim 1620, the driver of a vehicle had committed murder by driving over the victim blocking its route. Mere presence in a vehicle by the passenger was, without more, not a sufficient basis for encouragement.

In Coney (1882) 8.Q.B.D 534, the voluntary presence of spectators at an illegal prize fight was found to be capable of providing an inference of encouragement in the illegal activity, although not automatically or conclusively so-that was a matter for the jury.

[8] Exercise of Control:

Once again the particular factual circumstances may mean that liability can be incurred. Where for example the evidence shows that a defendant has the ability to control or influence those committing the principal offence, and chooses not to exercise that control.

Examples are the unfortunate landlord in Tuck v Robson [1970] 1 W. L. R 741 who failed to prevent his customers from drinking after hours, or the transport boss in J.F Alford Transport Ltd [1997] 2 Cr.App.R 326 who failed to prevent a tachograph fraud executed by his drivers.

Conclusion:

The specific prevailing circumstances will dictate whether an inference of encouragement is permissible.

“Mere presence” may be enough to generate such an inference for the jury to at least consider where there is evidence that:

i)   D2 knew the essential elements of D1’s underlying offence and
ii)  He intended that D1 carry out that offence with the requisite intent.
iii) His wilful encouragement was actively communicated to D1 and
iv) his presence had a “purposive” connection to the offending.

Equally, a failure to intervene or to alert the authorities may generate an inference of encouragement where it can be shown that D2 had an ability to exercise control over the situation, and deliberately chose not to.

Jim Tilbury
Mountford Chambers
London
EC1N 6RY
21/9/23

After 2 trials and 9 months of evidence in Operation Arbus [March –July 2022 and January –May 2023] Jim Tilbury, leading Sebastian Winnett, secured unanimous acquittals for their client, who faced counts of  kidnap, blackmail and false imprisonment. The prosecution alleged that the defendant had assisted in guarding a victim at a safe house in Herts following a professionally planned kidnap by a London OCG who had travelled to Cardiff. The defence involved careful analysis of criminal liability at the scene for a secondary party.

Jim and Sebastian were instructed by Matt Bliss [Director Stryders Solicitors]

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