‘The reform of the law relating to secondary offenders is long overdue.’
Please explain and discuss.
Written by Chloe Finan (March 2007)
Essay Plan
Introduction
- What are Secondary Offences?
- Accessories and Abettors Act 1861
- Consultation Paper No. 131, Assisting and Encouraging Crime
Main Essay
Reform of Outdated Language
- Section 8 of the Accessories and Abettors Act 1861
- Attorney - General’s Reference (No.1 of 1975)
difficult for juries today to understand
- Consultation Paper No. 131, Assisting and Encouraging Crime
juries would easily be able to understand
- Aid, Abet, Counsel and Procure – outdated? But consistent?
- Reform conclusion
Inchoate Offences
- Bourne (1952)
- Cogan and Leak (1976)
- Millward (1994)
- Consultation Paper No. 131, Assisting and Encouraging Crime
Punishment of Secondary Offenders
- Accessories and Abettors Act 1861
- Consultation Paper No. 131, Assisting and Encouraging Crime
- Magistrates Court Act (1980)
Conclusion
- Areas within the law that require reform -
- Language: No
Not cover the full meanings of these words set in Accessories and Abettors Act 1861
- Inchoate offences: Yes
Bourne (1952), Cogan and Leak (1976), Millward (1994)
- Punishment of secondary offenders: No
Section 44 of the Magistrates Court Act (1980)
Essay
Introduction
This essay relates to the reform of the law relating to secondary offences. I will be explaining the question of if reform of the law is over due relating to secondary offences by looking at both sides of the argument and looking at the current case law on this area.
Secondary offences are those who ‘aid, abet, counsel or procure’ the commission of an offence. This is set out in Section 8 of the Accessories and Abettors Act 1861. This is the main source of law in this area, although case law has altered the law and presented clarification in this area. There are criticisms of the law regarding secondary participation which is stated in Consultation Paper No. 131, Assisting and Encouraging Crime of 1993. This was written 14 years ago, which suggests that reform of law in this area is long overdue. However, it has yet to be changed – which can suggest that the arguments against reforming the law are stronger than those in favour of reform.
Reform of Outdated Language
It could be suggested that the Actus Reus of secondary participation, as stated in Section 8 of the Accessories and Abettors Act 1861 is out of date and difficult to understand. Section 8 of the Accessories and Abettors Act 1861 states that, “Whosoever shall aid, abet, counsel or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender.” This suggests that whether a defendant has aided, abetted, counselled or procured an offence is a decision for juries based upon the facts of the case.
In Attorney General’s Reference (No.1 of 1975) (1975) Lord Widgery stated:
“We approach section 8 of the 1861 Act on the basis that the words should be given their ordinary meaning, if possible.” This makes clear the point that the terms in the statute should be given their natural meaning so the jury is deciding based upon the ordinary meanings of the words, rather than applying any complex legal definitions, which could confuse the jury.
It is important to note that each of these four words (aid, abet, counsel or procure) has a separate meaning as stated in Attorney General’s Reference (No.1 of 1975) (1975). The Law Commission’s Consultation Paper No. 131, Assisting and Encouraging Crime suggests that these four words should be covered by the words of ‘assisting’ and ‘encouraging’. But this will not cover the full meanings of these words as set out in the Accessories and Abettors Act 1861. Looking at this further, the word ‘aid’ is defined as ‘to help or assist’ and ‘abet’ is defined as ‘to assist or encourage’. Both of these would therefore be covered by the term of ‘assisting’ and ‘encouraging’. However, the word ‘counsel’ means ‘to give advice or guidance’ and procure was defined as ‘to produce by endeavour’ in the Attorney General’s Reference (No.1 of 1975) (1975). This suggests to me that these two words would not be covered by the new terms, and therefore present confusion on the law on this area.
In the case of Attorney General’s Reference (No.1 of 1975) (1975), the defendant had surreptitiously laced a friend’s drink with alcohol, knowing the friend would be driving home. The friend drove with an excess quantity of alcohol in his blood and was convicted under section 6(1) of the Road Traffic Act 1972. The Court of Appeal had to decide whether the defendant could be charged with aiding, abetting, counselling and procuring the offence when there was no shared intention between them, and the defendant did not accompany the friend or in any other way positively encourage the friend to drive.
In deciding this, Lord Widgery stated: “Aiding and abetting almost inevitably involves a situation in which the secondary party and the main offender are together at some stage discussing the plans which they may be making in respect of the alleged offence, and are in contact so that each knows what is passing through the mind of the other.”
This suggests to me that the offences of ‘aiding’ and ‘abetting’ cannot be committed without a shared intention or any encouragement, and I would therefore argue that ‘assisting’ and ‘encouraging’ only really cover these terms, they cannot be committed without shared intention or encouragement.
However, it can be suggested that updating these terms would make the English Legal System more accessible to the general public as everyone would be able to recognize what the offence of assisting or encouraging crime entails, whereas offences of aiding, abetting, counselling or procuring would require further explanation.
Lord Widgery also stated in the case of Attorney General’s Reference (No.1 of 1975) (1975), “You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening. We think that there are plenty of instances in which a person may be said to procure the commission of a crime by another even though there is no source of conspiracy between the two, even though there is no attempt at agreement or discussion as to the form the offence should take. In our judgement the offence described in this reference is such a case.”
This suggests that someone can ‘procure’ an offence without a shared intention, but would not be able to ‘assist’ or ‘encourage’ an offence in such a way, meaning the suggest words of ‘assisting’ and ‘encouraging’ for reform would not be sufficient to deal with the range of situations that the existing terms cover.
In relation to the outdated language is that if changes were made in order to update and modernise the terms used within the Accessories and Abettors Act 1861 the new terms could soon become outdated. This would mean that in order to continue using current terms in relation to the law on secondary offenders, it could be necessary to introduce reforms updating the language frequently, which would be time-consuming and unnecessary. The current language used within the Accessories and Abettors Act 1861 is effective, shown through the current legal system on secondary offenders and any reforms of it, I suggest are not necessary.
Inchoate Offences
An issue to consider is the effect of the proposed reform on inchoate offences. There are difficulties that arise when the principal offender is not charged, but the secondary offender is found guilty. This is shown in the case of Bourne (1952) in which a man forced his wife to have sexual intercourse with a dog. She would have been the principal offender and her husband the secondary offender, but the wife was not charged. She would have been able to use the defence of duress if she had been, but the husband’s conviction of aiding and abetting the offence was upheld. This can be seen as a potentially problematic decision since it allows the conviction of a secondary offender, without the Actus Reus of the principal being proved, complicating this area of law.
This was also seen in the case of Cogan and Leak (1976). In this case, Leak forced his wife to have sexual intercourse with Cogan against her will. Cogan’s conviction for rape was quashed due to a misdirection in relation to the Mens Rea, but Leak’s conviction for procuring the offence was upheld, despite the argument that if Cogan’s conviction was quashed it was questionable as to whether the offence of rape had still been committed. It was held that since the Actus Reus had been committed, Leak had the appropriate mens rea for procuring the offence and therefore he was guilty.
The same principle was applied in Millward (1994) where the defendant instructed his employee to drive a vehicle on a road and knew that the vehicle was in a dangerous condition, but the employee was not aware of this. The employee was charged with causing death by reckless driving and the defendant of aiding, abetting, counselling and procuring his employee to commit the offence of causing death by reckless driving. On appeal, the employee’s conviction was quashed, but the defendant’s conviction for procuring the Actus Reus was upheld as he had the mens rea necessary to be an accomplice. Although he tried to argue that the acquittal of the principal offender meant that the Actus Reus of the offence had not been committed. The Court of Appeal decided that the Actus Reus did still exist and that the offence of procuring “does not require a joint intention between the accessory and the principal, thus allowing the accessory to be convicted even where the principal is acquitted”.
These three cases of Bourne (1952), Cogan and Leak (1976) and Millward (1994) show how the secondary offender can be convicted, even where the principle offender is acquitted. This presents difficulties if the principle offender is found guilty; which raises the question if someone can be guilty of aiding, abetting, counselling or procuring the offence.
The Law Commission’s Consultation Paper No. 131, Assisting and Encouraging Crime suggests making the offences inchoate, meaning they would not need to be complete offences, which could make people liable for secondary offences, even if the substantive crime had not been committed.
This would have advantages some cases since it would not be necessary to prove the Actus Reus of the principal offence had taken place in order for the secondary offender to be guilty. This would cancel out the complications created by the decisions in the above cases, which in my opinion would be a valuable reform.
Punishment of Secondary Offenders
Section 8 of the Accessories and Abettors Act 1861 states: “Whosoever shall aid, abet, counsel or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender.” It can be argued that in some circumstances a secondary offender being tried, indicted and punished as a principal offender could be unjust.
The Law Commission’s Consultation Paper No. 131, Assisting and Encouraging Crime suggests the abolition of the rule that an accessory ‘is liable to be tried, indicted and punished as a principal offender’ and that instead secondary offenders should be liable for the independent offence of ‘assisting crime’. This would have some advantages in dealing with the potential injustice of trying, indicting and punishing a secondary offender as a principal.
However, Section 44 of the Magistrates Court Act (1980) takes the same approach with regard to summary offences as the Law Commission’s report; the existing law was deemed appropriate. There are advantages to the rule that an accomplice can be tried, indicted and punished as a principal offender, especially with regards to organised crime, in which the secondary offender may be the main force driving a criminal operation and therefore, should be punished aptly for their role in the offence.
As stated in the Accessories and Abettors Act 1861, the present law allows the judge some discretion in sentencing the parties involved according to their degree of blameworthiness. Therefore, the current rule is indeed effective as it ensures that offenders are punished appropriately and gives the judge a degree of flexibility in sentencing, so I consider that reforms in this area are not required.
Conclusion
As seen throughout this essay, I feel there areas within the law that require reform. Overall, I think that the suggestion of reforming the language of secondary offenders as not required. This is each of the four words (aid, abet, counsel or procure) has a separate meaning as stated in Attorney General’s Reference (No.1 of 1975) (1975). The Law Commission’s Consultation Paper No. 131, Assisting and Encouraging Crime suggests that these four words should be covered by the words of ‘assisting’ and ‘encouraging’. But I believe that this will not cover the full meanings of these words as set out in the Accessories and Abettors Act 1861.
In relation to Inchoate offences, the three cases of Bourne (1952), Cogan and Leak (1976) and Millward (1994) show how the secondary offender can be convicted, even where the principle offender is acquitted, showing difficulties within the law.
The Law Commission’s Consultation Paper No. 131, Assisting and Encouraging Crime suggests making the offences inchoate, meaning they would not need to be complete offences, which could make people liable for secondary offences, even if the substantive crime had not been committed. This would have advantages some cases since it would not be necessary to prove the Actus Reus of the principal offence had taken place in order for the secondary offender to be guilty. This would cancel out the complications created by the decisions in the above cases, which in my opinion would be a valuable reform.
Lastly, in relation to punishment of secondary offenders, Section 44 of the Magistrates Court Act (1980) takes the same approach with regard to summary offences as the Law Commission’s report; the existing law was deemed appropriate. The current rule is indeed effective as it ensures that offenders are punished appropriately and gives the judge a degree of flexibility in sentencing and therefore I consider that reforms in this area are not required.
Overall, I feel that the only area of reform needed is in relation to inchoate offences, as this currently poses a difficulty of understanding within the law.
Bibliography
[1] Criminal Law for A2 by Jacqueline Martin
[2] Criminal Law (3rd Edition) by Diana Roe
[3] Short listed Essays – www.peterjepson.com