ìExplain whether you agree that the principles governing the liability of those who aid, abet, counsel or procure the commission of a criminal offence are essential but not yet satisfactory.î

Written by Emma McAvoy - Essay Plan

 In this essay I will explain the main points of the law on secondary offenders such as the actus reus and mens rea and describe why it is necessary. I will then outline and discuss any problems in the area showing any possible solutions to make the law more satisfactory.

  The law regarding secondary offenders was originally in the Accessories and Abettors Act (1861) but was amended by the Criminal Law Act 1967. Section 8 of the Accessories and Abettors Act (1861) says that anyone aiding, abetting, counselling or procuring the commission of an indictable offence shall be tried and punished as a principal offender.

  This is fair and just as it may be the case that (especially with the offence of procuring) the principal is less guilty than the secondary offender. An example of this was seen in the Attorney Generalís Reference No.1 (1975) when a man spiked his friendís drink with the knowledge that they would drive home later.

  The friend was charged with a drink driving offence when he had not known of the excess alcohol. The defendant originally was not convicted of any offence. However, the Court of Appeal agreed that the secrecy leading the friend to inevitably commit an offence and the excess alcohol in the friendís blood created the causal link to the defendant being a secondary offender.

  It would seem wrong that the principal offender in this case was the friend because he was innocent compared to the defendant, as he did not have any knowledge of committing an offence. This could lead to a question as to whether the rules should be changed in cases of procuring.

  This would not be necessary in the case of aiding, abetting and counselling as the offenders have knowledge that they are assisting a crime and some kind of intention to do so.

    There are examples of cases where the secondary offender is as much to blame as the principal such as the case of Tuck v Robson (1970) when the defendant owned a pub and allowed some customers to continue drinking after closing time. The Police visited and charged some of them for this offence ñ the defendant was charged with aiding and abetting the crime for failing to prevent the offence occurring when it was within his power to do so.

  Also in Calhaem (1985) a woman wanted to have the girlfriend of her ìcrushî murdered ñ she hired a private detective to do this. He went to the womanís house but killed her because she screamed. He claimed that he did not intend to commit the crime and was going to say that he had tried and failed to do so.

  He was convicted and the defendant was charged as a secondary offender by counselling the commission of the offence. In both of these cases it would seem completely unjust if the defendants were not charged with an offence as well as the principal offenders because they had knowledge and intention to assist the crime.

  This shows the necessity for these laws regarding secondary offenders, without them people who had knowingly committed offences would be left unpunished. 

Problems Regarding Actus Reus 

  These laws could be criticised however, for the obvious lack of duty and responsibility shown to other people with no charge. In the case of Clarkson (1971) two soldiers were acquitted of abetting a rape because they had not actually participated in any way.

  The actus reus for participation is a positive act to assist the crime ñ a passive presence as in this case is not enough to establish liability. It could be perceived as morally wrong to stand and do nothing as such a crime occurs and there could be an argument that the defendants should face some discipline for allowing it.

  From the defendants view however, it would be unfair to take this approach, as they did not actually break the law at any point.

  There was some uncertainty regarding withdrawal of an accessory ñ the first authority of Saunders and Archer (1573) said an accomplice could withdraw without being liable for further acts done by other parties. It was said that they need to take positive steps to be certain that their assistance is no longer provided.

  Whitehouse (1941) states that they must give clear notice to show the other party that they will be acting without any aid and assistance from those withdrawing. They also need to stop the effect of aid already given and will have a harder time avoiding liability if this change happens at the scene of the crime.

  This is shown in Beccerra and Cooper (1975) when the two defendants and another man broke into an old ladyís house to steal some money kept there. Beccerra did not attack the woman but cut the phone line with a knife. Cooper later took the knife to look for the money but a tenant interrupted them after hearing a noise. Beccerra said ì letís goî and exited with the other man. Cooper stabbed and killed the tenant during a struggle.

  Beccerra said he was not guilty of murder because he had withdrawn but his conviction was upheld following the statement in Whitehouse. This was followed in Baker (1994) when a man said he did not want to take part in any more violence after a fatal stabbing. His conviction was also upheld.

  Then, in Mitchell and King (1999) it was implied that spontaneous, unforeseen violence would end in easier withdrawal than if it was planned beforehand. 

Problems with the Mens Rea of Participation 

To have the mens rea for participation there must be knowledge of the crime and intention to aid, abet, counsel or procure the principal. This knowledge was shown in Johnson v Youden and Others (1950) which stated that knowledge of the matters of the crime was needed and Bainbridge (1960) which said that the defendant did not have to know the exact time and place of the intended crime.

  It is however, unknown whether recklessness can be enough for this knowledge. In Blakely and Sutton v DPP (1991) it was clearly stated that objective (Caldwell) recklessness would not be sufficient to cause liability. Despite this it was unclear on the matter of subjective or Cunninghamís recklessness in this situation.

  Two women had spiked the drink of the first womanís lover so he would not go home to his wife. They intended to inform him but did not get an opportunity before he left. He was convicted of drink driving and they were charged as accessories.

  However they had not intended for him to drive and commit an offence and their convictions were quashed because the court referred to the objective test.

  Regarding the intention to aid, abet, counsel or procure the case of The National Coal Board v Gamble showed that the company had clear intention to assist the principal (an employee) and was therefore a secondary offender.

  In Garret v Arthur Churchill Glass Ltd (1970) the intention was less clear though. The defendant was only an agent as the goods were owned by another party but the conviction was still upheld. 

Problems With Acquitting the Principal

 If the principal offender is acquitted a secondary offender can still be liable if the actus reus has occurred and they had the mens rea for participation.

  In Bourne (1952) the principal offender was acquitted but as the actus reus existed the defendant was convicted for aiding and abetting the illegitimate act.

  In Cogan and Leak (1976) the principal offender was again acquitted following Morgan (1976) but Leak was charged with procuring the offence because he had intended for the offence to take place, which it did. (actus reus)

  However if the actus reus did not exist as in Millward (1994) there was no crime to aid and abet, so the secondary offender cannot be convicted ñ this was also shown in Thornton and Mitchell (1940).

Differences in Liability of Offenders 

If the secondary offender has committed a different offence to the principal they may still be liable if the offences have the same actus reus.

  However, this was not then followed in Dunbar (1988). The defendant had apparently known that there was a possibility her co-defendants could break into her loverís house and cause him some harm although she did not foresee death or bodily harm as a result.

  She was acquitted of manslaughter as she had only thought some lesser harm would occur. The crime she had planned was different to the one actually committed. 

Problems if the Victim is the Principal Offender  

In Tyrell (1894) it was stated that the accessory canít be aiding and abetting an offence if it was created to protect them. An under-age girl was accused of aiding and abetting a man to have incestuous sex with her. Her conviction was quashed however, because the relevant act was meant to protect girls in similar situations. It was felt to be unjust to prosecute her for this reason.

  This could be criticised in that the girl and others who have committed offences designed to protect them, have nonetheless still committed an offence and are not being disciplined for doing so. This may be seen as a ìloopholeî in the law.  

Reform of Secondary Offenders  

There is a proposal to create two new offences for assisting a crime and encouraging a crime. They are to be inchoate offences.

  A person would be guilty of assisting if they had knowledge that another party will perform an act leading to commission of a crime and assists in any way, including advice on how to go about it or avoid arrest. They will also be liable if he assists a principal or that he intends to commit one out of several offences.

  A person would encourage a crime if he solicits, commands or encourages the principal to do an act involving commission of an offence and intends for this to occur. The principal must know of the help but does not need to be influenced by it.

  These modifications would involve abolition of the incitement offence and of aiding, abetting and counselling. There may be another offence to replace procuring where there is no planning or contact between the principal and the accomplice. 

 In conclusion it seems that the offences for assisting a crime are necessary parts of the law, but need to be modified and reconsidered to be more effective ñ the reform proposals could be a way of acting upon this need and solving some of the problems discussed. This agrees with the view expressed in the question.