ëIt may be thought, however, that the general notion of secondary participation is sound, and probably necessary. . .we cannot do without it; and perhaps the way ahead is to consider how its unsatisfactory features can be eliminated.í
Explain by reference to the existing law whether you agree that the principles governing the liability of those who aid, abet, counsel or procure the commission of criminal offences are essential but not yet satisfactory.
Written by Rachel Foreman
Secondary Offenders are more commonly known as accomplices or accessories. A secondary offender can be described as someone who aids, abets, counsels or procures a principal offender, as pointed out in the Accessories and Abettors Act 1861 i.e. when two or more people are involved in a crime but one only helps the other in some way rather than physically participating in the actual crime. A test to discover whether an offender is a principal or a secondary offender is to decide whether the defendantís actions were the immediate cause of the Actus Reus or whether he/she is merely helping the cause along.
The current law on secondary offenders can be found in the Criminal Law Act 1967 s8 Accessories and Abettors Act 1861. This statute states that ëwhosoever shall aid, abet, counsel and procure the commission of any indictable offenceÖshall be liable to be tried, indicted and punished as a principal offender.í (S44 Magistrates Courts Act 1980 ensures that the same approach is taken with regard to summary offences.)
The present law on secondary offenders also provides that the prosecution must prove both the Actus Reus and Mens Rea before the defendant can be found guilty. When proving the Actus Reus of a crime the prosecution have to prove that the alleged secondary has done something positive to assist or encourage the committing of the offence. It is also worth mentioning that an active presence at the crime rather than a passive one is needed to constitute liability. In Clarkson 1971, the conviction of two soldiers for abetting a rape was quashed because they had not participated in any way; they had merely been present at the time the crime took place. With regard to Actus Reus, case law suggests that a secondary offender can withdraw from a crime without incurring liability. However for a defendant not to incur liability a mere show of repentance is not sufficient, offenders must however take positive steps to indicate their assistance is at an end. It was stated in Whitehouse 1941 that they will need to: ëfurther aid and assistance of those who withdraw.í However in some cases the accomplice may have to do more than take positive steps to indicate the end of their involvement, but may also have to go further and neutralize the affect of any aid he has given, for example this may include taking back a car that has been stolen. In Becerra and cooper 1975, the defendant broke into a house of an elderly woman and attacked her. Becerra was not physically involved in the attack but used a knife to cut the telephone wires Cooper later took control of this knife; the men were then disturbed by the arrival of another tenant. Becerra then called to the others ëcome on, letís go!í and he and a third man escaped through a window. Cooper was unable to get away, and in the struggle, the tenant was fatally stabbed. Becerra tried to argue that his withdrawal from the scene of the crime meant that he was not liable for murder. On appeal however the conviction was upheld because Becerra had not taken positive steps to neutralize his participation in the crime, for example recovering the knife or fixing the phone wire.
As stated above, the prosecution must also prove Mens Rea for any liability to exist. In secondary offences the prosecution must prove two things. First of all that the accomplice had knowledge of the type of crime that was to be committed. Finally they must also prove that he/she had the intention to aid, abet, counsel or procure the secondary offender. Though the offender must have knowledge of the offence, this knowledge doesnít need to be precise. In Bainbridge 1960 it was decided that the defendant had ëknowledge that a crime of the type in question was intended.í In the case of Bainbridge, he used a false name to purchase oxygen-cutting equipment. This said equipment was later used by principal offenders to cut through the windows, the doors and the safe of a bank. Bainbridge was charged with being an accessory to the burglary but tried to argue that he did not know the purpose for which the equipment was to be used, he claimed he only suspected something illegal was going on. The Court Of Appeal held that while it was not enough merely to show that the defendant knew that some sort of illegal activity was planned, it was not necessary to show that he knew the exact time and place of the intended crime. The conviction was therefore upheld.
Maybe most importantly is that the prosecution must prove that the offender either aided, abetted, counselled or procured the principal offender, each one has a separate and different meaning. This is essential in the law as it stands as no liability can be proven without prove of the above taking place. For someone ëto aidí a crime they must give support or assistance, and normally this will happen when the crime is taking place, though is not always the case. However if someone encouraged or incited a crime this would be known as abetting. The term ëaiding and abettingí both imply some sort of action on the part of the secondary offender. In Bland 1988, it was made clear that an active involvement was needed for a conviction to be upheld; the conviction of Bland was quashed due to only a passive involvement being proved by the prosecution. An example where a conviction for aiding and abetting was upheld would include the case of Wilcox v Jeffrey 1951. In this case the Divisional Court found an active involvement. The defendant was the owner of a jazz magazine. He attended a concert at which a re-nound jazz musician played which was in direct violation of an alienís order which prevented him from playing in the UK. There was no evidence that the owner had actively participated at the concert, but he had attended and had later written an article for his magazine describing the performance. The court decided that the defendantís actions were enough to constitute aiding and abetting the contravention of the order.
In law the definition of counselling is given as, to give advice and encouragement usually before the crime takes place. An example of this is Calhaem 1985, in this case the defendant was infatuated with her solicitor and wished to remove his girlfriend from the scene. She hired a private detective to murder her; the detective claimed he had no intention of committing the crime. He alleged that he visited the girlfriendís home and panicked and killed her after she screamed. Despite this the private detective was convicted of murder and Calhaem was found guilty of being a secondary offender. The courts turned down appeal. Finally to procure a crime means taking positive steps to procure certain events happening. In the case of Attorney General Reference [No 1 of 1975] the Defendant had spiked the drinks of a friend with spirits. The friend was charged and found guilty of drink driving and D was charged as an aider, abettor, counsellor and procurer. At the trial, the Judge decided there was no case to answer for the secondary offender. Consequently there was disquiet about the decision and thus an Attorney General Reference arose. The Court of Appeal decided that a person acting in such a way should face trial. It being advised that the words... aid, abet, counsel or procure, should be given their ordinary meaning. For example, Procure meaning - 'to produce by endeavour'. Lord Widgery said:"You procure a thing by setting out to see that it happens and taking the appropriate steps to produce this happening"
At this point it is also worth mentioning that in some cases the principal offender can be unaware that a crime is being committed and that any wrongdoing is taking place, that same can be apparent if the principal offender is Doli Incapax (too young to be apprehended). In such cases the perpetrator of the crime is known as an innocent agent and the person instigating the crime is known as the principal. An example of an innocent agent is in the unnamed case in 1665, where a daughter was instructed by her mother to give her father a potion to cure his cold. When in fact it was poison with which his wife intended to kill him. Here the wife was held to be the principal offender and the daughter was the innocent agent.
Some people would argue that the above law on secondary offenders is essential but not yet satisfactory. Many reforms have been suggested and The Law Commission had studied the area of secondary offenders. One of the areas, which has been highlighted as a problem area includes whether an accomplice can still be held liable if the principal offender is acquitted. This is possible if the actus reus of the main offence has been committed and the secondary offender had the mens rea for the offence. This problem has arouse several times in court before and the courts have gone to great lengths to make sure the guilty parties have been charged. In the case of Bourne 1952, a man forced his wife to have sexual intercourse with a dog. Though the wives actions were illegal she was not charged with the offence. Instead her husband was charged with aiding and abetting the act. It was possible for the husband to be charged even though he hadnít committed the actual crime because the actus reus of the crime was held to exist and the secondary offender had created the mens rea. Another problem area is when the principal offender is a victim. It was established in the case of Tyrell 1894, that the alleged accomplice cannot be found guilt of aiding and abetting if the offence in question was actually created to protect him or another. In this case an under aged girl was charged with aiding and abetting a man to have incestuous sexual intercourse with her but was acquitted. The court felt it to be wrong that she should face criminal proceedings when the act had been designed to protect young women in similar circumstances.
The Law Commission has studied the law relating to accessories. Their most recent proposals were made in the consultation paper NO. 131 entitled assisting and encouraging crime. In this paper it was suggested that two new offences should be created, one of assisting crime and the second on encouraging crime and to make them inchoate offences. This would mean the courts would not be dependant on the main crime having to take place. A person would be guilty of assisting crime if he knows or believes that another party is doing an act, which will involve the commission of a crime and he does any act to assist this. It also includes that assistance includes the giving of advice about how to commit the offence and advice on how to avoid detection or arrest.(Bainbridge)
The offence of encouraging crime will arise where the offender solicits, commands or encourages the principal to do acts, which would involve the commission of an offence by the principal. It is also not necessary that the offenders should know the identity of the principal. If made these changes would mean the abolition of aiding, abetting and counselling and also the abolition of the common law offence of incitement.
IN conclusion the principals of secondary offenders is essential and the current law works, however implementing the suggested reform would mean changing it or the better. With reference to the quote ëit may be though, however, that the general notion of secondary participation is sound, and probably necessary. . .we cannot do without it; and perhaps the way ahead is to consider how its unsatisfactory features can be eliminated.í I agree fully with the above quote and feel that case law suggests reform is necessary.