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

By Shelley Spyrides

Introduction
In this essay I will be explaining what a secondary offender is, what the Law is relating to secondary offenders and then I will be looking at areas for reform and the advantages and disadvantages the Law holds on secondary offenders at the moment. I will be doing this using a variety of cases to elaborate in key areas.

Secondary offenders
The person who directly and immediately causes the actus reus of the offence is the 'perpetrator' or 'principle', while those who assist or contribute to the actus reus are 'secondary parties', or 'accessories'. The Law for indictable offences (including murder, manslaughter, rape etc.) is set out in s.8 of the Accessories and Abettors Act 1861, as amended. This provides that 'whosoever shall aid, abet, counsel or procure the commission of any indictable offence
is liable to be tried, indicted and punished as a principle offender'. S.44 of Magistrates' Court Act 1980 provides the same for summary offences (including assault and battery).
The significance of this provision lies in the discretion given to a judge to sentence the accomplice according to the degree of blame for which he or she deserves to be punished. For example, villains who make a living from organised crime are notoriously difficult to convict. They may provide the money and brains behind criminal operations but rarely expose themselves to the risk of being caught. Often, a so-called 'Mr Big' will use a combination of cunning and intimidation to ensure that it is a 'fall guy' who takes the blame should any planned crime go wrong. However, when the opportunity does actually arise to convict such a villain it is essential that a judge has the power to sentence them accordingly for their part in counselling the offences. It is for this reason that such an accessory may receive a sentence which is greater than that given to the actual principle offender.
When it comes to, secondary offender's and there actus reus they will be charged with aiding , abetting, counselling or procuring the particular offence, and is liable if it can be proved that he participated in any one of four ways. The Court of Appeal has heard that the words should simply bear their ordinary meaning. In Attorney Generals Reference (No.1 of 1975) (1975), Lord Widgery CJ said:

"We approach s.8 of the 1861 Act on the basis that the words should be given their ordinary meaning, if possible. We approach the section on the basis also if that four ordinary 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."

There is considerable overlap between them and it is quite possible for D to participate in several different ways.

When it comes to looking at secondary offenders we can see that there sort of has to be a meeting of minds between them and the principle offender. For D to abet and counsel another person, it seems that there must be some common understanding between them. For aiding and procuring, D may participate without the other even knowing what D is doing, or even against the others wishes- especially where procuring is concerned. In Attorney Generals Reference (No.1 of 1975) (1975) where D surreptitiously laced a friends drinks with double measures of spirits when he knew that his friend would shortly be driving his car home, and in consequence his friend drove with an excess quantity of alcohol in his body and was convicted of the offence under the Road Traffic Act 1972. D was charged with procuring the offence. D's addition of alcohol to E's drink was the direct cause of the offence, and would, the Court of Appeal thought, amount to procuring. Lord Widgery CJ said:

"It may very well be difficult to think of a case of aiding, abetting, or counselling when the parties have not et and have not discussed in some respects the terms of the offence which they have in mind. But we do not see why a similar principle should apply to procuring. To procure means to produce by endeavour. You procure a thing by settling out to see that it happens and taking the appropriate steps to produce that happening."

Aiding and abetting are often taken together. The threshold of involvement is very low, The Court of Appeal in Giannetto (1996) stated that 'any involvement from mere encouragement upwards would suffice' for conviction of abetting. The court commented that if E was to say to D ' I am going to kill your wife', then if D patted him on the back, nodded, or said 'Oh goody' then that would make D liable for abetting 'Because he is encouraging the murder'.
With the mens rea of secondary offenders the accessory must:
Have intended to assist, encourage, etc the commission of the offence; and
Have knowledge of the circumstances which constituted the offence.

D must have intended to participate in the commission of the offence. Any motives or desires that D may have had are, of course, irrelevant. It is therefore no defence that D is utterly indifferent as to whether the principle commits the offence or not. In National Coal Board v Gamble (1959), a colliery weighbridge operator, H, allowed a lorry driver to leave the colliery and drive onto a public road even though the lorry was over weight. The Coal board was found guilty (vicariously, that is, by assuming responsibility for the actions of its employee) of aiding and abetting the offence of driving an overloaded lorry onto the public roads, it was no defence that H was indifferent to the commission of the offence.
This gives accessorial liability a very wide scope. The problem was discussed in Gillick v West Norfolk and Wisbech AHA (1986), a civil case. G was seeking a declaration that it would be unlawful for a GP to give contraceptive advice to a girl under the age of 16, because this would amount to aiding and abetting the girl's boyfriend to have unlawful sexual intercourse. The House of Lords thought that the GP would not be acting illegally, provided what they did was 'necessary' for the girls physical, mental and emotional health. Lord Scarman said that the 'bona fide exercise by a doctor of his clinical judgement must be a complete negation of the guilty mind which is an essential ingredient of the criminal offence of aiding, abetting the commission of unlawful sexual intercourse'. Of course, Gillick is a civil case and anything said therein is not binding on courts dealing with criminal cases. However, Lord Scarman's statement received the approval of Lord Hutton in the Criminal case of English (1997).

D must have knowledge of the circumstances that constitute the offence. In Johnson v Youden and others (1950), Lord Goddard CJ said:

"Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the Law is no defence."

The 'essential matters' will be the circumstances and consequences of the actus reus. If D is not aware of these he cannot be liable. In Ferguson v Weaving (1951), D was the landlady of a large pub. One night, customers were found drinking after time; an offence under s.4 of the Licensing Act 1921. Crucially, there was no evidence that D actually knew that her customers were drinking after hours. A charge of counselling and procuring was dismissed and the King's bench Divisional court confirmed that decision.

If D is accused of aiding, abetting etc, then there must be proof that he was aware that a crime of a particular type may be committed. D does not need to know the exact details but he must be aware of more than that illegality is planned. In Bainbridge (1960), D had purchased some oxygen-cutting equipment for E, which E used six weeks later by breaking into a Midlands bank at Stoke Newington, North London. The equipment was left behind and it was subsequently traced back to D. He was convicted of aiding and abetting burglary and the court of Criminal Appeal dismissed his appeal. Lord Parker CJ laid down the following propositions:

D need not have knowledge of 'the precise crime' or the 'particular crime';
However, D must know 'the type of crime that was in fact committed';
But it is not enough that D merely knows that 'some illegal venture is inte.ded'

Applying these principles, it was sufficient that D knew that the equipment was going to be used for stealing money from a bank. It was not necessary that he knew in advance that it was going to the Midland bank, or the date on which the raid was to take place. But it would not suffice for a conviction if he knew the equipment was to be used to dispose of stolen property.
In DPP for Northern Ireland v Maxwell (1978), D was a member of the UVF, a protestant terrorist organisation. One night he guided other members of the UVF to a Catholic pub, where one of them threw a bomb. D was convicted of attempting to an Act to cause an explosion and possession of a bomb. He appealed on the basis that he was unaware of the precise nature of the attack but the House of Lords upheld his conviction. The Lords took the opportunity to confirm- and extended - the Bainbridge principle. Both Lord Fraser and Lord Scarman said that D was guilty if he knew that any one of a 'range' of crimes might be committed. This extends Bainbridge, which only referred to crimes of certain 'type' . Lord Scarman said (emphasis added):

A man will not be convicted of aiding and abetting any offence his principle may commit, but only one which is within his contemplation. He may have in contemplation only one offence, or several; and the several which he contemplates he may see as alternatives. An accessory who leaves it to his principle to choose is liable, provided always the choice is made from the range of offences from which the accessory contemplates the choice will be made.

I have now explained what a secondary party is and used a number of past cases to show how people are convicted in the place of a secondary party. From looking at these past cases we can see how the Law is set out for secondary offenders e.g. Attorney General reference (No 1 of 1975) (1975), decided that the words used in The Accessories and Abettors Act 1861 should be given their ordinary meanings to decide the outcome of the case.

Reform relating to secondary offenders

The Law Commission has studied the law relating to accessories on several occasions. In 1993, the Law commission published a report (Consultation Paper no 131), Assisting and Encouraging crime. It involves a radical reform of the existing Law. As well as abolishing all of the familiar- but arguably too-old fashioned- words in the Accessories and Abettors Act 1861, the report recommends the abolition of the rule that an accessory ' is liable to be tried, indicted and punished as a principle offender.' Instead, accessories become liable for an independent offence of 'assisting crime'. This would mean that they are not dependent on the main crime having to take place. The proposals may be summarised thus:
Aiding, abetting, counselling and procuring all abolished;
New offence of assisting crime created;
Actus reus: D commits this if he or she 'does any act', which 'includes giving the principle advice' as to how to commit the offence or to 'avoid detention or apprehension before or during the commission of the offence';
Mens rea: D must 'know or believe' that the principle will commit a criminal offence with the mens rea required for that offence; D must also 'know or believe' that his acts assist or will assist the principle in committing it.

This proposed reform is now eleven years old, but is nowhere near implementation.
The first point I can raise is that I feel the reform for Law on secondary offenders is long overdue and some much needed proposals have been put forward, however I feel that the Law and cases in this country can change very rapidly and by the time the Law Commission's proposed reforms come into practice they could soon be old and out of date once again as they were decided on in 1993. So they will need to be looked at and amended if need be which would save a lot of time in the long run.
As you can see one of the biggest reforms proposed in the consultation paper No 131 is to abolish the current crimes specified in the Accessories and Abettors Act 1861 e.g. aiding, abetting etc. This would be a much needed reform as not only is the Act one hundred and forty three years old, it contains terminology which is not in fact modern any more and isn't normally used in everyday vocabulary. Whether a defendant is found guilty or not depends on what the jury decides and it is not fair for someone to be convicted just because the terminology being used in the court room is not being understood by the jurors. The words to aid, to abet, to counsel and to procure may have been commonly used in 1861 when this act was passed but are not so common now, they are outdated and not easily understood. So by replacing these words with 'assisting' and 'encouraging', would be a great area for reform as even lay people understand these terms and will actually be of relevance to them when stated in a case. This will also save time in explaining what is meant by each term as assisting and encouraging mean what they say.
Although the Area of secondary offenders is covered by vast amounts of common Law and statute Law which is good as all areas are covered, it also gets confusing at some points as no one knows exactly what the Law is and equally doesn't know where to find it. So the second positive point about this area of reform is that it consolidates and codifies this area of Law. I spoke earlier of Bainbridge (1960), where D was convicted of supplying oxygen cutting equipment to E, and he knew it was for stealing. If the Accessories and Abettors Act 1861 was abolished it would help consolidate case law into statute Law as the D would know the exact crime that had been committed. As in Bainbridge D appealed as he didn't know the precise crime that was being committed or the exact particular crime. In the Consultation paper 131 it states 'A person would be guilty of assisting crime if he knows or believes that another party is doing an act (or will do one), which will involve the commission of a crime and he does any act to assist this. To widen liability, the clause states that assistance includes the giving of advice about how to commit the offence and advice on how to avoid detection or arrest. The person will also be liable if he assists a principal and knows or believes that the latter intends to commit one of a number of offences. So the Bainbridge scenario would be resolved the D only has to believe the other party is doing an act, which will involve the commission of a crime and Bainbridge knew that much. This is just one example of how it would consolidate the Law there are many more.

The other major reform proposed by the Law commission is that both the offences of assisting and encouraging crime would become inchoate offences. The justification for this reform in the consultation paper was under the present Law the requirement that the principle 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 an additional condition for liability that may, however enable some assisters to escape conviction, possible in a quite erratic and unmeritorious fashion. 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 principle offender is acquitted has long been a problem area in this Law.

The Law for secondary offenders is also done on past cases and past cases such as Cogan and Leak (1976), show that secondary offenders can still be found guilty even when the principle offender is let off. The reforms on this area show that the area of Law would not change much at all but it would in fact simplify this area of Law as it is currently quite complicated. By making assisting and encouraging inchoate offences the Law becomes easier for all. Reform in this area is long over due and is much needed.

The last reform I am going to look at proposed by the Law commission is with accomplices withdrawing without incurring liability. I believe this area is long overdue reform as a number of defendant's escape conviction by arguing they withdraw from the common design. The current Law is shown in Whitehouse (1944) ,where the law currently states that in 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'. This enables people to say they withdrew from the scene before e.g. the murder happened. If parties all started the offence together and withdraw half way through why shouldn't they all be convicted of the same offence as they all had the same mens rea and actus reus at one point. 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:
'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'.
There are a number of areas on secondary offenders where reform is overdue and these need to be put in to play as soon as possible.

Conclusion

In conclusion, I believe this statement to be true, as the reform of the Law relating to secondary offenders is long overdue. There are a number of reforms that could be implemented, they are not all to do with the actual Law itself but the way it is set out and the terminology still being used in this day and age. The Law is very confusing and would be much better if it was put into order it would work out to save a lot of time as you would know where everything is.
The reforms made are very good and when they are enacted it will discard all the confusing part of the Law and replace it with two easily defined crimes (assisting and encouraging). I don't know when these proposals will come in to practice but the reform on secondary offenders is long overdue, and these proposals are necessary and are good ones so we can only hope it will be in the near future.

By Shelley Spyrides (Nov 2004).