≥The Reform of the Law Relating to Secondary Offenders is Long Overdue≤- Please Explain and Discuss

Written by Paul Powlesland

Introduction

There are few major areas of criminal law (the Offences Against the Person Act (1861)) being one of the few exceptions) that are governed by a statute as archaic as the Accessories and Abettors Act (1861). This one hundred and forty year-old statute is still the major authority in the area of secondary offenders and as such there are many archaisms in the law that have led many people to call for reform in this area of law. The biggest and most recent call for the reform of the law relating to secondary offenders has been by the Law Commission in their Consultation Paper No. 131, entitled Assisting and Encouraging Crime. I shall examine their proposals for reform and explain why they could be termed ≥long overdue≤.

One of the biggest reforms proposed in the Consultation Paper is to abolish all the current crimes specified in the Accessories and Abettors Act (1861) (i.e. aiding, abetting, counselling and procuring) and also the common law offence of incitement. In their place two new offences, one of assisting crime and the other of encouraging crime, would be created. This would be a much needed reform in this area for two reasons. Firstly, the terminology in the old act leaves a lot to be desired, for although the terms åaidπ, åabetπ, åcounselπ and åprocureπ may have been linguistically common in 1861 they are nowadays outdated, archaic and not easily understood by many jurors and defendants alike. This is so even though AGπs Reference (No 1 of 1975) (1975)[1], decided that these words should ≥be given their ordinary meaning≤. The problem of outdated terminology is also present with regards to åincitementπ, which is also not a very modern or particularly understandable term. Therefore, to sweep all these old, outdated terms away and replace them with the modern terms of åassistingπ and åencouragingπ, which everyone, including the lay person, could understand would be an excellent reform. It would also make the English Legal System more accessible, as these two words mean exactly what they say, insofar as everyone would know what the offence of assisting or encouraging crime would entail, whereas the offences of aiding, abetting, counselling and procuring would need further explanation. The second positive point of this aspect of the reform is that it would consolidate and codify this area of the law. This is because, at the moment the position in this area is far from ideal, as the law is currently a mixture of both statute and common law. This is so for the offences of aiding, abetting, counselling and procuring (which are governed by the Accessories and Abettors Act (1861) and various case law). It is also true for the offence of incitement (for example incitement is generally a common law offence, but the offences of incitement to murder and inciting racial hatred are to be found in statute). If there were to be two new offences of assisting and encouraging crime, then the mass of confusing common and statute law would be replaced by one statute, so everyone would know what the law was and, equally importantly, where to find it.

Just one example of the consolidation that would occur if these reforms were enacted, concerns s4 of the definition of assisting crime in Consultation Paper No. 131, which states that:

≥äprovided the defendant knows or believes sufficient facts to show that [an offence] is taking place or will take place, he need not know the time, place or other details of the offence.≤

If enacted, this would make the important case of Bainbridge (1960)[2] redundant. In Bainbridge, the defendant had brought oxygen-cutting equipment six weeks before it was used to rob a Midlands bank. Although the defendant had believed that some illegal activity was going on, he claimed that he did not know the type of crime it was to be. The Court of Appeal decided that the defendant:

≥need not know of the precise crime that is to be committed, provided that he possesses, not mere suspicion, but knowledge that a crime of the type in question was intended.≤[3]

As can be seen, the proposed reforms would cover the åBainbridge Scenarioπ where a defendant does not know the exact crime to be committed and it would therefore help consolidate case law into statute law. There are many other examples of common law that would be consolidated by this proposed reform and, as such, it could be said to be a reform that is long overdue.

The other major reform proposed in Consultation Paper No. 131 is that both the offences of assisting and encouraging crime would become inchoate offences. The justification for this reform in the consultation paper was thus:

≥äunder the present lawä the requirement that the principal crime should actually be committed adds nothing to the analysis of secondary liability and does not serve as any sort of principled limitation on that liability. Rather, it serves as an additional condition for liability that may, however, enable some ≥assisters≤ to escape conviction, possible in a quite erratic and unmeritorious fashion.≤[4]

Making assisting and encouraging crime inchoate offences would be a much needed reform, as the question of whether a secondary offender can be prosecuted if the principal offender is acquitted has long been a problem area in this area of law. In the case of Bourne (1952)[5], which has long been the soapbox issue of many a feminist lawyer, a man forced his wife to have sexual intercourse with a dog. Although this is illegal, the wife was not charged and so the court had to decide whether the secondary offender could be tried if the principal was not. The court held that as the actus reus of the crime was held to exist, however, the court was able to convict the husband for aiding and abetting the illegal act. In Cogan and Leak (1976)[6], Leak forced his wife to have sex with Cogan against her will and so Cogan was charged with rape and Leak was charged with procuring the offence. However, Cogan successfully appealed against his conviction and so Leak also appealed, arguing that as the principalπs conviction no longer existed, then he could not be found guilty of procuring the offence. However, the Court of Appeal decided that as long as the actus reus for the offence existed, it did not matter whether the principalπs conviction existed. These decisions were followed by that of Millward (1994)[7], in which it was decided 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.≤[8]

Although, in effect, the law (regarding secondary liability if the principal offender is acquitted) following the implementation of the reforms would be roughly the same as it is now (i.e. that the secondary offender can still be found guilty if the principal is acquitted), the reform would be a useful one that would be long overdue. This is because, making the offences of assisting and encouraging crime inchoate offences would, like so much else in these reforms, simplify a, currently complicated, area of law. Therefore, even though the law would be materially the same, making the offences of assisting and encouraging crime inchoate offences would be a much needed and long overdue reform of the law regarding secondary offenders.

The final reform that is proposed by the Law Commission is with regards to accomplices withdrawing without incurring liability. As a result of the decision in Whitehouse (1941)[9], the law currently states that ion order for an accomplice to withdraw without incurring liability, they must:

≥serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw.≤[10]

This decision was confirmed in the cases of Becerra and Cooper (1975)[11] and Baker (1994), in which the convictions of the defendants were upheld, as it was decided that they had failed to serve unequivocal notice that their part in the crime was at an end.

Consultation Paper No.131 recognises that some provision would still have to be made for the accomplice who claims to have withdrawn from a common design, but proposes that:

≥ä a defence should only be available if the assister takes all reasonable steps to prevent the commission of the crime towards which he has assisted.≤[12]

I believe that this proposed reform would have two effects. Firstly I believe it would make it harder for defendants to claim that they withdrew from the common design, when compared to the current law (shown in Whitehouse (1944)). I believe that this would be a needed reform, as it would stop too many secondary offenders ågetting away with itπ by arguing that they withdrew from the common design. Secondly, I believe it would consolidate and simplify this area of law, by combining much case law into one paragraph in a statute, which, again, would make it a much needed and overdue reform in this area of law.

Conclusion

In conclusion, I believe the statement in this essay to be true, as the reform of the law relating to secondary offenders IS long overdue. This reform of the law is not so much relating to the actual law itself, as much of the law relating to secondary offenders is suitable and, mostly, not liable to criticism. However, what does need reforming is the way the law is currently to be found, as it is currently to be found in a confusing mixture of statutes and common law.

However, while many areas of law have areas that need reforming, the proposals to do so are often of a åpie in the skyπ nature. This is not so regarding secondary offenders, as there are firm proposals for reform (in the form of the Law Commissionπs Consultation Paper No. 131- Assisting and Encouraging Crime≤) which are åon the tableπ so to speak. If enacted, these proposals would reform this area of law in the place it most needs it, by sweeping away all the old case and statute law and replacing it with two, easily defined crimes, in a single statute.

As the reform of the law relating to secondary offenders is long overdue and there are proposals for reform available, why have these reforms not been enacted? The simple answer lies in a lack of parliamentary time and, more likely, will for implementing detailed reform of the criminal law. Consultation Paper No. 131 which constitutes the main proposal for reform in this area was produced in 1989 as a part of the Draft Criminal Code and, like reform relating to secondary offenders, has never been implemented. In 1993, the Chairman of the Law Commission, Mr Justice Brooke declared that the failure by parliament to implement any of the reforms was ≥a disgrace≤; a sentiment that I believe could also be applied to the failure of parliament to implement any of the much needed reform of the law in relation to secondary offenders.

Overall therefore, the reform of the law relating to secondary offenders IS long overdue. However, despite the fact that firm proposals for this reform have been put forward by the Law Commission, it seems unlikely that parliament will enact them any time in the near future.

[3] Criminal Law. D Roe. Hodder & Stoughton. 2002.

[4] Paragraph 4.25. Consultation Paper No. 131- Assisting and Encouraging Crime. The Law Commission. 1989.

[8] Criminal Law. D Roe. Hodder & Stoughton. 2002.

[12] Paragraph 4.135. Consultation Paper No. 131- Assisting and Encouraging Crime. The Law Commission. 1989.