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

Written by Abby Taylor (March 2007).

Introduction

In the Accessories and Abettors Act 1861 secondary offenders are defined as those who are involved in the commission of offences by aiding, abetting, counselling or procuring the offence in question. It was within this Act that the law on secondary offenders was set out and still remains the main source of law relating to this area; however it has been developed and refined through a number of cases.

There are many criticisms of the law set out by the Accessories and Abettors Act 1861 and subsequent cases, which have resulted in calls for reform. One in particular was the Law Commissions Consultation Paper No. 131 Assisting and Encouraging a Crime of 1993, which is now over fourteen years old suggesting that reforms within this area of law are long overdue. So far, however, the current law not only appears to have been appropriate but successful as well.

Out of Date Language

It is stated in Section 8 of the Accessories and Abettors Act 1861 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, shall be liable to be tried, indicted and punished as a principle offender.’

It is for juries to establish whether a defendant has aided, abetted, counselled or procured the commission of an offence based upon the facts of the case. In the case of 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 established that the terms should be given their natural meaning, and so the jury are deciding based upon ordinary meanings of words, rather than any complex definition, which, ion fact could make these words easier for the jury to apply.

One argument for reform in this area is that the language in the Accessories and Abettors Act 1861, and particularly the terms ‘aid, abet, counsel and procure’ are now outdated and difficult for juries to understand. It is suggested that because of this the language used within the Act should be reformed and updated. This is argued in the Law Commission’s Consultation Paper No.131, Assisting and Encouraging Crime of 1993 which involves abolishing the old-fashioned words and replacing them with modern terms ‘assisting’ and ‘encouraging’. The immediate distinct advantage of these words is the fact that they would be easier for the juries to understand and apply.

One problem with this is that if two words could do the job of four then government would not have wasted their time using four in the first place. The terms ‘aid, abet, counsel and procure’ all have distinct and different meanings, and therefore replacing them with ‘assisting and encouraging’ will not cover all of the meanings originally included by the terms in the Accessories and Abettors Act 1861. The word ‘aid’ is defined as ‘ to help or assist’ and ‘abet’ is defined as ‘to assist or encourage’ and so in the scheme of things these would both be covered by the new terms of ‘assisting and encouraging’. However counsel means ‘to give advice’ and procure is defined as ‘to produce by endeavour’ in the Attorney-General’s Reference (no. 1 of 1975) (1975), and these would not be covered by the new terms

In this case the defendant had secretly laced a friend’s drink with alcohol, knowing that the friend would be driving home. The friend drove with an excess 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, counselling and procuring the offence when there was no shared intention between them, and the defendant did not accompany the friend or in any other way positively encourage the friend to drive.

In deciding this 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 some contact so that each knows what is passing through the mind of the other’ This clearly indicates that the offences of ‘aiding’ and ‘abetting’ cannot be committed without a shared intention or any positive encouragement, and in respect to this I would argue that since ‘assisting’ and ‘encouraging’ only really cover these terms, they cannot be committed without shared intention or positive encouragement. 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 shared intention, but would not be able to ‘assist’ or ‘encourage’ an offence in such a way. This demonstrates that the introduction of the new terms ‘assist’ and ‘encourage’ would not be sufficient to deal with the range of situations that the existing terms cover.

A final point in relation to the out dated language within this area of law is that if changes were made in order to update and modernise the terms used within the Accessories and Abettors Act 1861 the new terms could soon be outdated. This in order to continue using the current terms in relation to the law on secondary offenders it could be necessary to introduce reforms updating the language frequently, which would be time-consuming and unnecessary. As a result the current language used within the Accessories and Abettors Act 1861 is effective and appropriate and any reforms of it are certainly long overdue.

Inchoate Offences

A further issue to be considered is the difficulties that may arise when the principle offender is acquitted, or not charged, yet the secondary offender is still found guilty. This is particularly evident in the case of Bourne (1952) in which a man forced his wife to commit buggery with a dog. Because of this, she would have been the principle offender and her husband the secondary offender. However, the wife was not charged with the offence and would have been able to use the defence of duress if she had been, but the husband’s conviction of aiding and abetting the offence was upheld. This can be seen as a potentially problematic decision since it allows the conviction of a secondary offender, without the actus reus of the principle being proved, complicating this area of law even further.

This situation is also demonstrated in the case of Cogan and Leak (1976) in which Leak forced his wife to have sex with Cogan against her will. Cogan’s conviction for rape was quashed due to a misdirection in relation to the mens rea, but Leak’s conviction for procuring the offence was upheld, despite the argument that if Cogan’s conviction was quashed it was questionable as to whether the offence of rape had still been committed. However, it was held that since the actus reus had been committed, and Leak had the appropriate mens rea for procuring the offence was guilty.

As a result, these cases demonstrate how the secondary offender can be convicted, even if the principle offender is acquitted or not charged; presenting difficulties since if the principle offence is not proven it is questionable, under the current law, whether someone can be guilty of aiding, abetting, counselling or procuring the offence.

One suggestion of the Law Commission’s Consultation Paper No. 131, Assisting and Encouraging Crime is making the offences inchoate, meaning they would not need to be complete offences, thus people could be liable for secondary offences, even if the substantive crime had not been committed. This would have obvious advantages in cases such as Bourne (1952) and Cogan and Leak (1976) since it would not be necessary to prove the actus reus of the principal offence had taken place in order for the secondary offender to be guilty. Thus the complications created by the decisions in Bourne (1952) and Cogan and Leak (1976) would be effectively removed by this reform, simplifying this area of law considerably, and so I consider this a valuable and long overdue reform.

Punishment of Secondary Offenders

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.” It can be argued that in some circumstances a secondary offender being tried, indicted and punished as a principal offender could be harsh and unjust, particularly if the secondary offender had made only a minimal contribution to the offence.

The Law Commission’s Consultation Paper No. 131, Assisting and Encouraging Crime suggests the abolition of the rule that an accessory ‘is liable to be tried, indicted and punished as a principal offender’ and that instead secondary offenders should be liable for the independent offence of ‘assisting crime’. This would have some advantages in dealing with the potential injustice of trying, indicting and punishing a secondary offender as a principal.

However, the existing law was considered appropriate just thirteen years before the Law Commission’s report, since section 44 of the Magistrates Court Act (1980) provides the same for summary offences. There are advantages to the rule that an accessory can be tried, indicted and punished as a principal offender, particularly when dealing with organised crime, in which the secondary offender may be the organising force behind a criminal operation and therefore should be punished appropriately for their role in the offence. The current law as stated by the Accessories and Abettors Act 1861 allows the judge the discretion to sentence the parties involved in the offence according to the degree to which they are to blame. Thus I consider the current rule is effective and as such reforms in this area are not long overdue, or even necessary.

In conclusion, I consider that the language used within the Accessories and Abettors Act 1861, although outdated and potentially difficult to understand is not in need of reform, since it appropriately outlines the different types of secondary offence, and at present there is no acceptable suggestion for replacement terms that would encompass all necessary forms of secondary offence. Also, the rule that an accessory ‘is liable to be tried, indicted and punished as a principal offender’ is valuable in giving judges the discretion to base sentences on the proportion of blame attached to each offender involved in the crime, and not in need of reform.

I do feel the reforms suggested by the Law Commission in relation to making secondary offences inchoate offences are long overdue, since the case of Bourne (1952) complicated this area many years ago, and introducing the proposed reform would help to deal with this complication and simplify the law for use in future cases.

Overall, I feel the Law Commission’s proposals for reform in the Consultation Paper No. 131, Assisting and Encouraging Crime are not long overdue, since the current law on secondary offenders is both appropriate and effective, although making secondary offences inchoate could be a useful and appropriate reform.

By Abby Taylor