The reform of the law relating to secondary offenders is long overdue. Please explain and discuss

By James Lawrence (A2 Law Student).

A secondary offender is a person who aids, abets, counsels or procures the commission of a crime. This definition was first laid down in the Accessories and Abettors Act 1861 and it distinguishes them from principal offenders who actually commit the actus reus necessary for the crime.  Secondary offenders are generally people who are involved in a crime but do not actually commit the mens rea necessary for the offence themselves, nor do they have sufficient liability to make them guilty of joint enterprise with the principal offender.

For example someone who drives a getaway car for a group of men robbing a bank would be a secondary offender because he aided in the robbing of the bank even though he did not commit the actus reus for robbery himself. 

To be a secondary offender a person must either aid, abet, counsel or procure the commission of a crime. To aid someone has to give support or assistance to the principal offender. This help would normally be given at the scene of the crime although this is not always the case.

Abetting a crime is to ëencourage, incite or instigateí it This means to give encouragement to the principal offender, normally at the time the crime takes place. This could mean simply cheering loudly at an illegal prize fight or encouraging someone who is committing an assault.

Aiding and abetting do require the secondary offender to have more than a passive presence at the scene of the crime. For example in Bland 1988 the defendant allowed a drug dealer to use his property to store drugs despite the fact he had no knowledge that it was being used for that purpose. His conviction was quashed because the court in that case decided a more active involvement was required than simply living with and having some knowledge of the dealerís activities.

To counsel is like abetting in that it means to give encouragement or advice to a principal offender but this takes place before the crime is committed. This can be seen in the case of Calhaem 1985 where the female defendant wished to have another woman killed. She hired a private detective called Zajac to murder her who claimed he only intended to pretend to attempt the murder but then claim it was unsuccessful. However, when he visited her house with this plan he panicked and killed her after she screamed. The judge held that the defendantís words persuaded Zajac to commit the crime and so she was guilty of counselling him and therefore was a secondary offender.

The final way of becoming liable as a secondary offender is by procuring. This is achieved by ësetting out to see that a crime happens and taking the appropriate steps to produce that happening. This definition was given in the AGís reference No 1 of 1975 when procuring as a way of being liable as a secondary offender was created.

It was created to cover situations where there is no ëmeeting of the mindsí between the primary and secondary offenders. In other words, even if the secondary offender did not enter into an agreement with the principal offender but still caused them to commit a crime they would still be liable as a secondary offender. Procuring usually takes place before the offence is committed. 

A secondary offender can be charged with all for types of secondary participation but can still be found guilty if only one of them is satisfied. If the secondary offender wishes to withdraw from the crime without incurring liability they can according to Saunders and Archer 1573 but they must actively show that their part in the crime is ending. They must also, in some cases need to at least try and stop the principal offender from going ahead with the crime on his own. This could mean persuading them to give back a weapon or return a stolen item.

If the defendant changes his mind when the crime is being committed he will find it much harder to avoid liability as was shown in Becerra and Cooper 1975. In this case both defendants and another man broke into a house where an elderly lady was present, in the hope of robbing her. Becerra attacked the woman and used a knife to cut the telephone wires. Cooper took the knife and went towards the kitchen to find the money. They were then interrupted by the tenant and Becerra called to the others and yelled ëLetís goí before escaping out of a window. Cooper was unable to escape however and the tenant was fatally stabbed in the resulting struggle. Becerra tried to claim that he had withdrawn himself from the situation and he was no longer liable for the result of the robbery. The Court of Appeal did not believe this excused him from liability and his conviction was upheld. However, as shown in Mitchell and King 1999, if the crime is spontaneous such as a fight outside a pub the potential secondary offender can walk away without necessarily having to prove his involvement is at an end because unlike a pre-planned crime the potential secondary offender may not have considered his actions before he entered the fight and so cannot be said to have the same liability as someone who planned to join the fight and realised the likely outcome. 

To prove the mens rea of secondary liability the defendant must have had knowledge of the type of crime to be committed and had the intention to aid, abet, counsel or procure.

The limits of this definition were shown in Bainbridge 1960 where the defendant bought oxygen cutting equipment which he claimed he thought would be used for some kind of illegal activity like breaking up stolen goods. However, it was actually used to break into a bank vault and Bainbridge was charged with aiding the burglary by providing the cutting equipment. His claim that he did not realise exactly what the equipment would be used for was rejected by the Court of Appeal who decided that while it was not enough to show that the defendant knew that some sort of crime was planned, it was not necessary to show that he knew the exact time and place of the intended crime. That, coupled with the fact that the jurors did not believe Bainbridgeís story led to his conviction being upheld.

An area of law that is unclear about secondary liability is recklessness. One of problems is whether the accessoryís knowledge that a crime is probable is enough to make him liable. The Divisional Court appeared to make the position clear in Blakely, Sutton v DPP 1991 when they stated that ëobjective or inadvertent recklessness is not sufficient to constitute liabilityí but there was less certainty over whether subjective recklessness (Cunningham) would be enough. They did suggest that the word ërecklessí should not be used when deciding the mens rea of secondary offenders.

It is not possible to incur secondary liability through negligence as was shown in Callow v Tillstone 1900. In this case a vet examined a carcass of meat and claimed that it was fit for human consumption when it was not the owner then sold this meat and was convicted. The vetís convict ion as an accessory was quashed, as he had not intended to become an accomplice and this is necessary, even in a strict liability offence.

The defendant charged with secondary liability must also have the intention to do the acts that assisted or encouraged the carrying out of the offence. This was shown in National Coal Board v Gamble 1959 where the defendant who was driving a lorry was informed that he was nearly four tons overweight. The company who informed him of this decided to let him carry on anyway and allowed him to leave. They were then found guilty under the Motor Vehicles (Construction and Use) Regulations 1955 and were convicted as a secondary offender. 

There are certain areas in the law relating to secondary offenders that are unclear and need examining and possible reforming. If the principal offender in a case is acquitted it is possible to hold the accomplice liable for the crime as long as the actus reus is completed and the secondary offender has the necessary mens rea of participation in the crime. This situation was brought about partially because of the courts desire to convict the defendants in Bourne 1952 and Cogan and Leak 1976. In Bourne 1952 a man forced his wife to have sexual intercourse with a dog. Because the actus reus of the crime was held to exist and the husband had the mens rea to commit the illegal act whereas the wife certainly did not, the wife was acquitted of the crime and the secondary offender who forced her to commit it was convicted instead.

Cogan and Leak is another case which shows a secondary offender convicted after the principal is acquitted. A man, angry at his wife, forced her to have sex wife both him and his drinking partner, Cogan. After this Cogan was charged with rape and Leak with procuring the offence but Coganís conviction was quashed when he argued that, following the House of Lordsí decision in Morgan 1976, he had believed that the wife had consented and the belief did not have to be a reasonable one. Leak however was not acquitted even though he argued that, if the principal offender had been acquitted the crime of rape could not be held to have taken place. The Court of Appeal rejected this view, calling it ëan affront to justice and to the common sense of ordinary folkí. However in Thornton v Mitchell 1940 where a bus conductor giving inadequate signals to the driver was convicted of causing a fatal injury to a pedestrian even though the driver had been committed was quashed, the conductorís conviction was then also quashed because it was held that after the principal offender ñ the driver, was acquitted the actus reus of careless driving no longer existed so there was no crime for  the conductor to aid and abet.

If the secondary offender is liable for a different offence to that of the principal it is possible for them both to be convicted provided both offence share the same actus reus. However this was not the case in Dunbar 1988 where a woman who was drunk claimed she wanted to see her lover dead. Subsequently the co-defendants broke into her loverís flat and killed the lover where Dunbar argued that she had only wanted  the woman to be slightly injured in the course of the burglary. The judge told the jury that she could not be found guilty of manslaughter because she had only contemplated the woman getting injured rather than her being killed.

Another problem area in secondary offender law is where the principal offender is also a victim that the legislation was designed to protect like in Tyrell 1894. In this case an underage girl was acquitted to aiding and abetting a man to have incestuous sexual intercourse with her because the relevant statute was designed to protect her. Therefore it seemed unfair to the court that she should be charged under it. 

These problem areas are serious and need to be solved in some way so the Law Commission has on many occasions proposed changes to the law that would make it clearer and more effective. These include creating inchoate offences of assisting and encouraging crime which would mean that they are not dependant on the crime taking place and so would avoid a situation such as in Cogan and Leak 1976 where the defendant argued that because the principal had been acquitted the crime could no longer exist and they could no longer be charged with a crime that didnít exist.

The offence of assisting crime would have a wider liability as it includes giving advice on how to commit the crime and advice to avoid detection or arrest. It would also solve the question raised by Bainbridge 1960: Can someone be liable if they only realise that a crime will be committed as a result of their action even if they are unaware of the exact nature of the crime> The answer would be yes, clearing up that particular area of law.

The offence of encouraging crime would involve the offender encouraging, soliciting or demanding the principal to commit a crime when the secondary intends that it should be done. The secondary offender would still be liable if heís addressing a large group of people as long as he intends people to act upon his encouragement or command. This would solve the problem of how much constitutes an active presence necessary to incite. These two offences also do away with the more confusing system based of the four types of secondary liability: aiding, abetting, counselling and procuring. It would be much easier to understand although the Commission believed that it may be necessary to create a separate offence to cover procuring as the two new offences donít cover cases where there is no communication about the crime with the principal. 

From examining the current state of the law regarding secondary liability and looking at the method of reform put forward by the Law Commission I can conclude that reform is indeed necessary. As the law stands it is too confusing with four types of secondary liability when they could be covered by two. Under the system proposed by the Law Commission  the contradiction between Cogan and Leak 1976 and Thornton v Mitchell 1940 would be resolved as they would both be found guilty of assisting a crime. The new system would help sort out these problems and would make the system of secondary liability much fairer and easier to understand.