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

By Sarah Ahmed (A2 Law Student)

Before we can address this question we must first explain what a secondary offender is. In some cases there is more than one offender involved in the crime. If the two offenders are working together and take an equal part in the offence they are joint enterprises. We are not concerned with these in this essay. However if the offenders involved differ in participation the main offender is known as the principal, they are the one who will usually carry out the actus reus of the offence. The secondary offender, of which we are interested in, merely aids the principal in the offence. It is not always clear who the principle offender is. In some cases the apparent principal may not be aware they are committing a crime or they are too young to be convicted; doli incapax. If this is the case these are known as innocent agents and the secondary offender may become the principal. The secondary offender can also be known as an accomplice or accessory.

There are four different types of secondary offence. A defendant can be convicted of all offences or just one. A secondary offender is said to be one who aids, abets, counsels or procures, THE ACCESSORIES AND ABETTERS ACT 1861. When interpreting these words they are to be given there ordinary meaning, AGís Reference (No1 of 1975)1975.

TO AID: to give help, support or assistance. Aiding usually takes place at the scene and time of the crime. An example of this would be shouting ëfight, fightí at the scene of a fight thus egging on the principal.

TO ABET: this also takes place at the scene and time of the crime. It means to encourage, incite or instigate.

The terms to aid and abet imply positive action at the scene of the crime. A passive presence cannot incur liability. In the case of BLAND 1988 the defendant lived with a drug dealer and knew of his activities but did not have a positive involvement in his actions. Thus the defendants conviction of aiding and abetting was quashed as a passive knowledge was said not to be enough to incur liability. However in the case of WILCOX v JEFFEREY 1951 a more active involvement was found and thus the defendant was convicted of aiding and abetting a crime.

TO COUNSEL: this has a similar meaning to abetting but takes place prior to the actus reus of the crime. It means to give advice and encouragement. The case of CALHAEM 1985 gives an example of counselling. In this case the defendant, who was infatuated with her solicitor, hired a hit man, Zajac, to kill his girlfriend. Zajac said he did not intend to kill the girlfriend but pretend to do so. However due to certain circumstances he killed the girlfriend. Zajac was convicted of murder and Calhaem of being a secondary offender. Calhaem appealed on the grounds that her words or actions had not been a substantial cause of death. However it was ruled that there does not have to be a causal connection between the counselling and the actual crime.

TO PROCURE: to produce by endeavour. ëYou procure a thing by setting out to see that it happens and taking the appropriate steps to see that happening. This also takes place before the crime but unlike counselling, aiding and abetting there does not have to be a ëmeeting of mindsí; the secondary and principal offender do not have to have conferred about the crime. In most instances the principal does not know they are committing an offence. Procuring requires there to be a causal connection between the action of the secondary offender and the actus reus of the crime. Thus without the action of the secondary offender the actus reus of the main crime cannot happen. In the case of the AGís Reference (No1 of 1975) 1975 the defendant spiked the drinks of his friend knowing that they would be driving home later. While driving home the friend was charged with a drink driving offence under THE ROAD TRAFFIC ACT. The defendant was charged with procuring. The Court of Appeal decided that the defendant should be tried for two reasons; one he had acted secretly in lacing the drinks and thus the principal did not know they were going to commit crime and thus could do nothing to prevent it. Secondly the actus reus of the offence was a direct consequence of the secondary offenders actions this thus provides a causal connection.

Before looking into ways of reforming the law in the area of participation we must look at the law at present. Currently for one to have the actus reus for aiding, abetting, counselling or procuring they have to do something positive to assist at the time or before the time of the crime. As said previously a passive presence at the scene is not sufficient to incur liability, BLAND 1988. In CLARKSON 1971 the conviction for abetting a rape was quashed as the defendants had not participated in any way, they were merely passive at the scene of the crime.

To prove the mens rea of the secondary offender two things have to be considered. Firstly did the secondary offender have knowledge of the type of crime to be committed. The initial case was JOHNSON v YOUDEN AND OTHERS 1950, in this case it was ruled that ëthe accomplice must know at least the essential matters which constitute the offenceí. The case of BAINBRIDGE 1960 later clarified this saying only a vague knowledge is required for one to have the mens rea. Second to this the accomplice has to have the intention to aid, abet, counsel or procure. The accomplices actions set out to cause certain consequences and the accomplice intends for these consequences to occur. In NATIONAL COAL BOARD v GAMBLE 1959 the Coal board was held liable for aiding and abetting due to the actions of one of their employees as the intention to assist the principal offender was apparent. The facts of the case were as follows; the employee of the Coal board operated a weighbridge and knowing that a lorry was almost four tons overweight still gave the driver, who decided to take the risk, a ticket to leave the premises. The drivers employers were later found guilty of contravening the MOTOR VEHICLES (CONSTRUCTION AND USE) REGULATIONS 1955 and the coal board was convicted as a secondary offender.

Where mens rea for the secondary offence is concerned recklessness will not create liability. In BLAKELY, SUTTON v DPP 1991 Caldwell recklessness was rejected by the Divisional Court. Two women spiked the drink of one of the womenís lovers to stop him returning home to his wife. They had intended to tell him so he would not be able to leave and thus had not intended for the defendant to drive under the influence of alcohol. They were unable to and thus the defendant drove home. They were convicted on the grounds that they should have contemplated the defendantís actions as probable. The Caldwell test had been used and the conviction was later quashed as it was said that this type of recklessness was insufficient to incur liability. It is not clearly decided as to whether Cunningham recklessness would suffice. However it was said to avoid the issue of recklessness when deciphering the mens rea of the secondary offender.

In the instance of strict liability offences where the mens rea of the principal does not have to be proven, it does for the secondary offender. Negligence as in the case of CALLOW v TILLSTONE 1900 is not sufficient to create liability. In this case a vet was negligent in his examination of a piece of meat and said it was fit to sell. Later the owner was convicted of the strict liability offence of selling unfit food. The vet was convicted as a secondary offender but the conviction was quashed as he did not have the intention to be an accomplice to the offence.

ENCOURAGING A CRIME: this arises when the secondary solicits, commands or encourages the principal to take certain actions which will result in a crime and having the intention for those acts to be done. The help that the secondary is offering should be brought to the attention of the principal in order to incur liability but the principal does not have to act upon the help. The secondary does not have to know the principal but has to have the intention that their communication will be acted upon by whoeverís attention it should come to.

The Law Commission also believed there might be need for another new offence to cover the act of procuring, in cases where there is no contact or communication between the secondary and the principal.

In my opinion I feel perhaps these proposals for change are a little drastic. It remains to be seen whether these proposals will be acted upon and I feel perhaps it is not likely as such a drastic change may not be welcomed. There are positive and negative points to these proposals. The idea in theory is a good one and could possibly prevent further injustices. The law would be more clear cut and liability would be wider, however it is questionable as to whether that is a positive point. The aspect of making the offences inchoate would be a positive point as often the secondary is acquitted as the principal cannot be found guilty of the offence or they do not fully commit the offence. This is particular in cases of rape. For example in COGAN AND LEAK 1976 Leak forced his wife to have sex with him and then his friend, Cogan, while the husband watched. Cogan was charged with rape and Leak as a secondary, as at the time it was not illegal for a man to rape his wife. Coganís conviction was quashed on appeal as he claimed he beloved the wife had consented. Thus the question arose did the crime of rape actually occur and if it didnít then could Leak be liable as a secondary. The new proposal for the law would prevent outcomes like this.

However with the creation of new laws and the abolition of certain case law there would be no precedent and the courts would thus be blind in making decisions and the issue of interpreting new statute would be a problem.

I feel that although there are both positive and negative points to these proposals for reform it is not likely that they would be installed. The law in this area has been governed by common law for too long for a change this drastic to be welcomed openly. Perhaps if the idea was integrated slowly it would be more favoured. However on the other hand a clean change of the law may be what is needed.