The reform of the law relating to secondary offenders is long overdue. Please explain and discuss.
Written by Shazneen Munshi (Nov 2005)
In this essay, I am going to explain why the reform of the law relating to secondary offenders is long overdue by analysing the arguments on both sides of the debate and exploring the present law in this area. Firstly, secondary offenders are those who are involved in the commission of offences by aiding, abetting, counseling or procuring the crime in question, as stated in section 8 of the Accessories and Abettors Act (1861). This archaic statute governs the law relating to secondary offenders and still remains as the main source of law (authority) in this area of criminal law, although it has been developed and refined through several cases. However, there are many criticisms of the law regarding accessories which have resulted in calls for reform, particularly by the Law Commission in their 1993 Consultation Paper No. 131, entitled Assisting and Encouraging Crime. Their radical proposals for a restructuring of the law on complicity are now over ten years old and therefore, suggest that reforms are long overdue. However, the existing law in this area has been generally successful so far and consequently, there are also arguments against the statement in question.
Reform of outdated language
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.’ Whether a defendant has aided, abetted, counseled 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.” Therefore, this case establishes the fact that the terms in the statute should be given their natural meaning and so, the jury is deciding based upon the ordinary meanings of the words, rather than applying any complex legal definitions. However, one of the main arguments in favour of reforming the present law relating to secondary offenders is that the language of the Accessories and Abettors Act 1861, especially the terms ‘aid’, ‘abet’, ‘counsel’ and ‘procure’, are now outdated and difficult for jurors to understand, even though they may have been linguistically common in 1861. Furthermore, the problem of archaic terminology also exists with regards to ‘incitement’ which can be deemed as particularly incomprehensible. Thus, it has been suggested in the Law Commission’s Consultation Paper No. 131, Assisting and Encouraging Crime that the old fashioned words should be abolished and replaced with the modern terms of ‘assisting’ and ‘encouraging’. This would create two new offences in the form of inchoate offences (incomplete offences) and would mean that they would not be dependant on the main crime having to take place. Subsequently, this reform would enable jurors to understand the terms in the statute clearly and allow them to apply the words in a more effective manner. Moreover, it can also be seen 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, counseling or procuring would require further explanation.
However, in the case of Attorney General’s Reference (No.1 of 1975) (1975), Lord Widgery added that:
“We approach the section on the basis also that if four words are employed here, ‘aid, abet, counsel or procure,’ the probability is that there is a difference between each of those four words and the other three, because, if there were no such difference, then Parliament would be wasting time in using four words where two or three would do.” This clearly demonstrates that Parliament must have intended the words ‘aid’, ‘abet’, ‘counsel’ and ‘procure’ to individually have their own distinct and different meanings, otherwise one or two of the terms would have been sufficient in the statute. Therefore, substituting the preceding words with ‘assisting’ and ‘encouraging’ may not encapsulate the original meanings included by the terms in the Accessories and Abettors Act 1861. This can be illustrated by the fact that even though the word ‘aid’ has been interpreted as ‘to give help, support or assistance’ and ‘abet’ is defined as ‘to encourage, incite or instigate’, the term ‘counsel’, however, means ‘to give advice or guidance’ and ‘procure’ was defined as ‘to produce endeavour’ in the Attorney General’s Reference (No.1 of 1975) (1975). So, the words ‘counsel’ and ‘procure’ would not be covered by the new proposed terms.
Furthermore, in the case of Attorney General’s Reference (No.1 of 1975) (1975), the defendant had surreptitiously spiked a friend’s drink with alcohol, knowing that the other would later be driving home. The friend drove with an excessive 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, counseling or procuring the crime in question when there was no shared intention between them (i.e. when the principal offender had no knowledge of the offence), and the defendant did not accompany the friend or in any other way positively encourage him to drive. In his judgement, 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.” Thus, this indicates that without a shared intention or any positive encouragement, the offences of ‘aiding’ and ‘abetting’ cannot be committed and it can also be seen that since ‘assisting’ and ‘encouraging’ only cover the preceding terms, they too cannot be perpetrated without shared intention or positive encouragement either. However, Lord Widgery also stated: “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.” Therefore, someone can ‘procure’ an offence without a shared intention, but would not be able to ‘assist’ or ‘encourage’ an offence in a similar way. Thus, this case illustrates that the introduction of the new terms of ‘assisting’ and ‘encouraging’ would not be adequate enough to deal with the range of situations the existing terms cover. In addition, a final argument in relation to reforming the old fashioned language regarding the law on complicity, is that if changes were made to update and modernize the words used within the Accessories and Abettors Act 1861, then the new terms could eventually become outdated too. Thus, in order to keep the law in relation to secondary offenders up-to-date with regards to language, it would be necessary to introduce reforms revising the terms frequently which would be a time consuming and unnecessary exercise. Hence, the current language used within the Accessories and Abettors Act 1861 is appropriate and effectively provides for a range of situations, and so it can be seen that reforms of the law relating to secondary offenders are certainly not long overdue.
However, in addition to the main advantage of enabling the jury to understand the terms in the statute more clearly, the reform of replacing the original, archaic terms with ‘assisting’ and ‘encouraging’, would also consolidate and codify this area of law. This is because the law is currently a mixture of both statute and common law and this position exists for the offences of aiding, abetting, counseling and procuring which are governed by the Accessories and Abettors Act 1861 as well as various case law. Therefore, if there were to be two new offences of assisting and encouraging crime, then the mass confusion surrounding the combination of common and statute law would be replaced by one new statute, so the law would be easily accessible to everyone as they would know what it was and where to find it. An example of the consolidation that would occur if these reforms were enacted concerns s4.99 (4) of the definition of assisting crime in Consultation Paper No. 131, which states that:
“provided the defendant knows or believes sufficient facts to show that such a breach is taking place or will take place, he need not know the time, place or other details of the offence.” So, if enacted, this would make the important case of Bainbridge (1960) redundant. The defendant was convicted of being an accessory to a burglary and had used a false name and address to purchase oxyacetylene-cutting equipment six weeks before it was to be used by the principal offenders to rob a midlands bank. Although the defendant had believed that he suspected that some illegal activity was going on, he claimed that did not know the purpose for which the equipment was being used. The Court of Appeal upheld his conviction, with Lord Parker C.J. stating 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.” Subsequently, the proposed reforms would cover the ‘Bainbridge’ type situation where a defendant does not know the exact crime to be committed and it would therefore help consolidate case law into statute law. Thus, the reform of creating two new offences, one of assisting crime and the other of encouraging crime, which would replace the crimes specified in the Accessories and Abettors Act 1861 and the common law offence of incitement, could be said to be a reform that is long overdue.
Inchoate offences
Another major issue to be considered is that of the problems that arise when the principal offender is acquitted, or not even charged, yet it is still possible for the secondary offender to be found liable if the actus reus of the main offence has been committed and the secondary offender has the mens rea for participation. The courts are then prepared to combine the two elements and convict the accomplice. This principle is particularly evident in the case of Bourne (1952) in which a man forced in wife to commit buggery with a dog. Thus, she would have been the principal offender and her husband the secondary offender. However, the wife was not charged and had she been brought to court, she was likely to have been acquitted on the basis of the defence of marital coercion or duress. Nevertheless, the husband’s conviction for aiding and abetting the offence was upheld since the actus reus of the offence had been committed. Therefore, this can be seen as a potentially problematic decision as it allows the conviction of a secondary offender, without the actus reus of the principal having to be proved, complicating this area of law. Similarly, this scenario was also demonstrated by the case of Cogan and Leak (1976) in which Leak forced his wife into submitting to sexual intercourse with Cogan against her will. Cogan’s conviction for rape was quashed due to a misdirection in relation to mens rea, but Leak’s conviction for procuring rape was upheld, despite the fact he argued that if the principal offender’s conviction was quashed, then it was questionable as to whether the crime of rape still existed. However, the Court of Appeal held that since the actus reus had been committed, and Leak possessed the appropriate mens rea for procuring the offence, he was guilty. Finally, 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, counseling 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”. Therefore, these cases illustrate the fact that the secondary offender can be convicted, even when the principal offender is acquitted or not charged which presents difficulties since if the principal offence is not proven, it is questionable under the current law whether someone can be guilty of aiding, abetting, counseling or procuring the offence. Consequently, another reform proposed in the Law Commission’s Consultation Paper No. 131, Assisting and Encouraging Crime is that two new offences of ‘assisting’ and ‘encouraging’ crime should be created in the form of inchoate offences (incomplete offences) which would not be dependant on the main crime having to take place. Thus, people could be liable for secondary offences, even if the substantive crime had not been committed. This reform would have evident advantages in case such as Bourne (1952), Cogan and Leak (1972) and Millward (1994), as it would not be necessary to prove that the actus reus of the secondary offender had been committed in order for the secondary offender to be convicted. Thus, the complications that emerged in the decisions in the above cases would effectively be removed by this reform, simplifying the law on complicity considerably, and so this can be considered as a long overdue reform.
Punishment of secondary offenders
Furthermore, 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.” Therefore, it can be seen that the law takes a very strict attitude towards accomplices and in some circumstances trying, indicting and punishing a secondary offender as a principal offender may be harsh and unjust, particularly if the secondary offender had only made a minimal contribution to the offence. So, the Law Commission’s Consultation Paper No. 131, Assisting and Encouraging Crime proposes the abolition of the rule that an accessory ‘is liable to be tried, indicted and punished as a principal offender’. Instead, secondary offenders become liable for an independent offence of ‘assisting crime’. Thus, this reform would be advantageous as it would deal with the potential injustice of trying, indicting and punishing a secondary offender as a principal.
However, fourteen years before the Law Commission’s report, the existing law was deemed appropriate since section 44 of the Magistrates Court Act (1980) takes the same approach with regard to summary offences. Moreover, 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. In addition, 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 blamworthiness. 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, and so I consider that reforms in this area are not long overdue.
Conclusion
In conclusion, in relation to the statement in question, ‘The reform of the law relating to secondary offenders is long overdue’, I would argue that although the language used within the Accessories and Abettors Act 1861 is indeed archaic and potentially difficult to understand, it is not in need of reform since it outlines the different types of secondary offence and presently there are no appropriate proposals for replacing the original terms in the statute as the introduction of the new terms of ‘assisting’ and ‘encouraging’ would not be sufficient enough to deal with the range of situations the existing words encompass. In addition, the rule that an accessory ‘is liable to be tried, indicted and punished as a principal offender’ is effective as it allows judges the discretion to base sentences on the proportion of blame attached to each offender involved in the crime and therefore, is not in need of reform. However, replacing the original, archaic terms with ‘assisting’ and ‘encouraging’ in the form of one new statute, would consolidate and codify this area of law on complicity as it is currently a mixture of both statute and common law. Thus, this proposal could be said to be a reform that is long overdue as it would clarify the confusion surrounding the present state of the law and would cover the ‘Bainbridge (1960)’ type situation where a defendant does not know the exact crime to be committed. So, the law would be easily accessible to everyone as they would know what it was and where to find it. Furthermore, I do believe that the reforms suggested by the Law Commission in their Consultation Paper No. 131, Assisting and Encouraging Crime, in relation to making secondary offences inchoate offences are long overdue, since the judgements in Bourne (1952), Cogan and Leak (1976) and Millward (1994) complicated this area of law many years ago and thus, introducing the proposed reforms would considerably simplify the law on accessories for use in future cases. Finally, I consider that the Law Commission’s proposals for reform in the Consultation Paper No. 131, Assisting and Encouraging Crime are not long overdue as the present law in relation to secondary offenders is both effective and appropriate overall, although making secondary offences inchoate may be a valuable reform.
Bibliography
‘Criminal Law 3rd Edition’ by Diana Roe (2005) – Hodder and Stoughton
‘Criminal Law, Text, Cases and Materials’ by Jonathan Herring (2004) – Oxford University Press
‘Criminal Law Third Edition’ by Tony Storey and Alan Lidbury (2004) – Willan Publishing
Reform of Secondary Offenders Legislation-Lisa Incledon
‘Elliot and Wood’s Cases and Materials on Criminal Law Eighth Edition’ by Michael J Allen (2001) - Sweet and Maxwell
Section 8 of the Accessories and Abettors Act 1861
Consultation Paper No. 131, Assisting and Encouraging Crime
Attorney General’s Reference (No.1 of 1975) (1975)
section 6(1) of the Road Traffic Act 1972
Bainbridge (1960)
Bourne (1952)
Cogan and Leak (1976)
Millward (1994)