The reform of the law relating to secondary offenders is long overdue.

Please explain and discuss.

Written by Lisa Incledon - 9th November 2004

Secondary offenders are those who are involved in the commission of offences, by aiding, abetting, counselling or procuring the offence in question. The law on secondary offenders was set out in the Accessories and Abettors Act 1861 and today this still remains the main source of law relating to secondary offenders, although it has been developed and refined through a number of cases. There are criticisms of the law set out by the Accessories and Abettors Act 1861 and subsequent cases, which have resulted in calls for reform, particularly in the Law Commission’s Consultation Paper No. 131, Assisting and Encouraging Crime of 1993, which is now over ten years old, suggesting that reforms in this area of law are long overdue. However, the current law appears to have been both appropriate and generally successful so far, and as such there are also arguments against the idea that reform of the law relating to secondary offenders is long overdue.

Reform of Outdated Language

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.”

Whether a defendant has aided, abetted, counselled or procured an offence is a decision for juries 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.”

Thus 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 legal definitions, which could make these words easier for juries to apply. However one argument in favour of reforming the law relating to secondary offenders is that the language of the Accessories and Abettors Act, and particularly the terms ‘aid’, ‘abet’, ‘counsel’ and ‘procure’, are now outdated and difficult for juries today to understand, and so it is suggested that the language used within the Act should be reformed and updated in order to make it more easily understood.

A suggested reform for this area is given 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 the modern terms ‘assisting’ and ‘encouraging’. These terms would have advantages, since juries would easily be able to understand them and apply them to cases.

However, in the case of Attorney - General’s Reference (No. 1 of 1975) (1975), Lord Widgery also stated: “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 indicates that the words ‘aid’, ‘abet’, ‘counsel’ and ‘procure’ 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 thus both would be covered by the new terms ‘assisting’ and ‘encouraging’. However counsel means ‘to give advice or guidance’ and procure was 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 Attorney – General’s Reference (No.1 of 1975) (1975), the defendant had surreptitiously laced a friend’s drink with alcohol, knowing 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 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 I would argue that since ‘assisting’ and ‘encouraging’ only really cover these terms, they cannot be committed 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.”

Thus someone can ‘procure’ an offence without a 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 outdated language 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 become outdated. Thus in order to continue using 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.

Thus the current language used within the Accessories and Abettors Act 1861 is effective and appropriate and any reforms of it are certainly not long overdue.

Inchoate Offences

Another issue to be considered is the difficulties that arise when the principal 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. Thus, she would have been the principal offender and her husband the secondary offender. However the wife was not charged 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 principal being proved, complicating this area of law. This situation is also demonstrated by the case of Cogan and Leak (1976) in which Leak forced his wife to have sexual intercourse 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 he was guilty.

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

The Law Commission’s Consultation Paper No. 131, Assisting and Encouraging Crime suggests 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.

Lisa Incledon

Bibliography

Storey T. and Lidbury A. ‘Criminal Law’ – Willan Publishing (2004)

Roe D. ‘Criminal Law’ – Hodder and Stoughton (1999)

Elliot C. and Quinn F. ‘Criminal Law’ – Pearson (2004)

Herring J. ‘Criminal Law Text, Cases and Materials’ – Oxford University Press (2004)

Allen M. ‘Elliott and Wood’s Cases and Materials on Criminal Law’ – Sweet and Maxwell (2001)

Attorney - General’s Reference (No.1 of 1975) (1975)

Bourne (1952)

 Cogan and Leak (1976)