Secondary Parties

Introduction

Before moving onto this post, it is strongly recommended that you read the article on causation. Having done so, you will understand that when a third party voluntarily intervenes somewhere along the chain of causation, the law imposes a novus actus interveniens and ceases to regard the original actor as criminally responsible for the eventual outcome. Consider the following example:

In R v Kennedy (Simon) [2007] the House of Lords (now the Supreme Court) was faced with the following case: The defendant had been convicted by a lower court of unlawful act manslaughter after he prepared an injection of heroin for his friend. Having prepared the injection, the victim administered it to himself and later died by choking on his own vomit. The House of Lords quashed the defendant’s conviction because his victim had made a free and informed decision to administer the heroin. The law assumes the existence of free will and this was sufficient to absolve the defendant of blame. The key principle to bear in mind is that when a third party voluntarily intervenes – as did the victim in the present case – the chain of causation is broken.

This leaves the law with a problem. How does the law deal with the man who provides a vicious murderer with a knife, knowing that he is going to use it to slit the throat of an enemy? How does the law deal with the woman who persuades her friend to deliver a letter bomb to her enemy? How does it deal with the man who deliberately slips alcohol into his friend’s soft drink and causes him to drink drive?

The answer lies in section 8 of the Accessories and Abettors Act 1861, which states:

Whosoever shall aid, abet, counsel or procure any offence…shall be liable to be tried, indicted and punished as a principal offender.

This legal provision ensures that the man who provides the knife, and the woman who persuades her friend to deliver a letter bomb to her enemy, are tried and punished as murderers. As Lord Bingham stated in R v Kennedy (Simon):

The doctrine of secondary liability was developed precisely because an informed voluntary choice was ordinarily regarded as a novus actus interveniens breaking the chain of causation.

In the following sections, we will be taking a look at the rules surrounding this area of the law.

The Basics

The title of this post is secondary parties. This is because the liability of the person who aids, abets, counsels or procures depends upon the crime (be it murder, assault, burglary, or any other offence) being committed by somebody else. For example, in the scenario where A sells a knife to B, knowing that B is going to use it to murder C, A is not guilty of aiding and abetting murder unless B actually goes ahead and murders C. If B collects the knife and then gets cold feet, A cannot be guilty of aiding and abetting murder.

Another way of describing the above principle is that aiding, abetting, counseling and procuring is a derivative offence. The criminal liability of the man who provides the knife to B derives from B’s murder. As we will see in a later post, this differs from the concept of joint enterprise, where several people are held jointly responsible for a crime because they acted in concert, or as a gang.

Key Terms

In the cases on secondary parties, a couple of terms routinely appear:

Principal – The principal offender is the person who physically carries out the crime. So, in the example where A provides B with a knife, and B uses that knife to kill C; B is the principal offender.

Accessory – The accessory is the person who aids, abets, counsels or procures another person to commit an offence. So, in the above example, A is the accessory. The criminal liability of the accessory always depends upon the criminal act of the principal.

Of course, it is also necessary to consider what the words aid, abet, counsel and procure actually mean. Do they have some kind of special legal meaning?

In Attorney General’s Reference (no. 1 of 1975) the court stated that these words should be given their ordinary meaning. D. Ormerod, who authors one of the most authoritative textbooks on criminal law, provides the following definitions:

Aiding – To give help, support, or assistance to. This would cover things like providing a weapon, driving A to B’s house so he can murder B, acting as a lookout, and helping to plan an offence.

Abetting – To incite, instigate or encourage. This would cover things like shouting words of encouragement during a fight, and persuading your friend to drink drive.

Counseling – Ormerod states that counseling is the same thing as abetting. Other authors, such as J. Martin, assert that whereas abetting requires encouragement during a crime, counseling requires encouragement before the crime. Both abetting and counseling tend to be treated by the courts as synonymous.

Procuring – This word was defined by the court in Attorney General’s Reference (no. 1 of 1975). In that case, Widgery CJ said the following:

To procure means to produce by endeavour. 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 sort of conspiracy between the two, even though there is no attempt at agreement or discussion as to the form which the offence should take.

In the above case D spiked P’s drink, knowing that he would drive home whilst under the influence of alcohol. He had set out to see that P drove home whilst drunk, and took the appropriate steps to produce that happening. The key difference between procuring and the other three terms is that in order to procure one must be the factual and legal cause of the offence. In order to aid, abet, or counsel, the prosecution does not need to prove that the secondary party caused the offence – merely that they helped or persuaded. It could very easily be the case that selling a knife to B was not the cause of B stabbing C. B may have killed him via other methods even without your assistance.

TaskTask

Consider the following scenarios and choose which label best fits the crime: aiding, abetting, counseling or procuring:

  1. Roger, who works in a D.I.Y. store is approached by Ahmed. Ahmed says “I’m sick of my neighbour. He keeps getting his circular saw out at five o’clock in the morning and waking my family. I want to stab him. That’ll shut him up for good. Do you have any ten inch blades?” Roger recognises Ahmed as a convicted murderer who was released from prison several weeks ago. He sells a large knife to Ahmed, and Ahmed murders his neighbour the following day.
  2. Liam is enjoying a friendly soft-drink with his sister Sarah. Liam is of the opinion that Sarah is a terrible driver and he decides to run an experiment to see if her driving improves when she is on drugs. When Sarah leaves to visit the bathroom, he slips some ketamine into her lemonade. Later on that evening, Sarah drives home and is pulled over by the police for dangerous driving. She is later convicted of driving whilst under the influence of drugs.
  3. Holly has recently fallen out with her best friend Chris. She decides to telephone her friend Selina and persuade her to beat-up Chris. Selina is very easily persuaded. The following day, she drives to Chris’ house, knocks on his door, and kicks him in the face when he answers. Selina is arrested by the police and convicted of inflicting grievous bodily harm with intent to wound.

Before we move on to consider some concrete examples of secondary liability, it is necessary to understand the timing element of the offence.

In R v King (1817) P broke into a warehouse and stole some butter. He deposited the stolen goods in the street and D turned up to help him to carry the butter away. The court decided that D was not guilty of aiding and abetting P because his assistance was offered after the crime had taken place. One can only be guilty as a secondary party for acts done before or at the time of the offence.

Aiding

In National Coal Board v Gamble (1959) P filled his lorry with coal at the colliery. He then proceeded to drive the lorry onto the weighing machine, where he was informed that he had overloaded the vehicle. It was too heavy to be legally driven on public highways. Despite this knowledge, the colliery (D) provided him with a ticket permitting him to leave the premises and proceed on his journey. P knew that his lorry was too heavy but decided to carry on with his journey, using the ticket to raise the exit barriers.

The court stated that D was guilty of aiding P to commit the offence of driving an overloaded vehicle on a public highway. By providing P with a ticket they had assisted him in the commission of the crime.

In R v Bryce (2004) D drove P and a gun to a caravan where V was living. D knew that P was likely to murder V but he still decided to act as his driver. The court upheld D’s conviction for murder because he had intentionally driven P to the caravan knowing that he was helping him to commit murder.

Abetting and Counseling

In Tuck v Robson (1970) D – the owner of a pub – allowed his customers to continue drinking on his premises after the legally permitted hours. He made a deliberate decision not to enforce his right to eject them. As such, the court upheld his conviction for aiding and abetting the offence of drinking after hours. His failure to eject the law breaking customers was a form of encouragement for them to continue drinking.

In R v Clarkson (1971) two soldiers walked into a room where another soldier, P, was raping a woman. They stayed to watch but did not say or do anything. The court said that this was not enough to constitute abetting rape because the act of standing in silence did not actually encourage P to rape. It is likely that if they had egged P on, pumped their fists or done some other action indicating encouragement, they would have been found guilty.

Another case highlighting the same principle as R v Clarkson is R v Coney (1882). In this case, the defendants were present at an illegal bare-knuckle boxing match. They sat and watched the fight in silence in the same way as the defendants in Clarkson watched the rape in silence. The court stated that there were no acts of actual encouragement and so they were not guilty as secondary parties.

The important point to take away from this series of cases is that in order to be guilty of aiding and abetting, the defendant must actually do something to aid or abet. This is a question of fact which is ordinarily left to a jury and does not necessarily mean that the defendant must have said something. Any act – even something as basic as being a murderer’s lookout – could be sufficient to actually aid or abet.

A further important point was made by the court in Attorney General’s Reference (no. 1 of 1975). There, the court stated that abetting and counseling requires some form of “meeting of minds“. In other words, if John persuades Sarah to murder Laura, but Sarah actually murders Nicola, John is not guilty as an accessory to murder. John and Sarah had a meeting of minds to murder Laura, not Nicola.

To state it in simple terms, P must be aware that he has the approval of D to perform the crime. In the above example, Sarah does not believe that she has John’s approval to murder Nicola, so John is not guilty of abetting or counseling murder.

Procuring

The key case on procuring is Attorney General’s Reference (no. 1 of 1975) which is discussed above.

Mens Rea of Secondary Parties

We have already seen from the above cases that the actus reus of accessorial liability can be something as simple as keeping watch whilst your associate commits murder. Any act which is sufficient to actually assist, encourage, or procure is enough. Note the huge difference between the principal and the accessory: in the case of murder, the principal must unlawfully kill a human being, while the accessory can be guilty of the same offence merely by driving P to the scene of the crime. Although the actus reus of both parties is wholly different in nature, they are both treated as murderers and given a mandatory life sentence. Do you think this is fair?

The actus reus element is relatively easy to fulfill, but there is also a mens rea requirement which is fairly complex and loaded with problems.

There are two elements to the mens rea for secondary parties:

  1. Intention or belief that the act will encourage or assist or – in the case of procuring – bring the offence about.
  2. Knowledge of the type of crime that P is likely to commit. Including the type of mens rea that P is likely to have.

Let’s take a look at the two elements separately.

Intention or belief that the act will encourage, assist, or bring the offence about

It is very important to remember that the defendant must intend or believe that his act will encourage, assist, or bring the offence about. This element of the mens rea does not require the secondary party to intend or desire the crime to be committed.

In Lynch v DPP for Northern Ireland (1975) D drove P to a place where he intended to commit murder. D was horrified at the prospect of V’s murder and did not desire it to happen. Nevertheless, he intended to assist P in the commission of a murder. The question whether or not the secondary party desires P to commit a certain crime is irrelevant. What matters is that the secondary party intends or believes that what he is doing will encourage or assist. So, in this case, although D was horrified by what P was going to do, he nevertheless knew that he was likely to do it and knew that by driving him to the scene he was assisting him.

Similarly, in Cook v Stockwell the defendant sold beer to a number of cottages despite the fact the he knew they were illegally reselling it without a licence. The secondary party did not desire the cottages to resell the beer illegally, but he nevertheless knew what they were doing and knew that by selling them the beer he was assisting them.

The principle demonstrated in the above cases is helpfully stated by Devlin J in R v J F Transport Ltd:

If you sell a gun to someone, you may be indifferent whether the person dies, but you can still be guilty of aiding and abetting.

Knowledge of the type of crime that P is likely to commit

Re-read the subheading above and think about what it might mean. If James sells Liam a knife, thinking that he is likely to use it to commit criminal damage (perhaps by scratching somebody’s car), but Liam in fact uses it to murder somebody, do you think James would be guilty of murder as a secondary party?

The key words here are type and likely. The defendant does not have to be certain that P will commit a certain crime, and he only needs to know the type of crime that is likely to be committed: he does not have to know all the details. Let’s look at a few cases to back-up these statements.

In R v Bainbridge (1959) the defendant purchased some oxygen cutting equipment for P, who used it to break into a bank. On appeal, D argued that he could not be guilty of aiding and abetting P to commit the crime because he did not know which bank he would break into or at what time. In other words, although he knew what the oxygen cutting equipment was going to be used for, he did not know the specific details of the crime.

The court decided that the defendant in Bainbridge was guilty as a secondary party because although he did not foresee the specific details of the crime, he nevertheless foresaw the type of crime that he was aiding.

Think about why the court made this decision. What would have happened if the court had set a precedent that secondary parties must know all the details of the crime in advance? Would it be easy to secure convictions?

In R v Webster (2006) D was driving a car with P as his passenger. D got tired and allowed P to take over driving duty despite the fact that he knew P to be drunk. P was later convicted of causing death by dangerous driving.

The court in Webster stated that it was sufficient that D foresaw that P was likely to drive dangerously. It is not necessary for the prosecution to prove that D foresees dangerous driving as a certainty. Of course, very little in life is certain and if the court had stated that certainty was the requirement instead of likelihood, the law of aiding and abetting would have been emptied of all content. It would have made it nearly impossible to convict anybody under the Accessories and Abettors Act.

Perhaps the most difficult part of the mens rea for the prosecution to prove is the requirement that D foresaw the type of mens rea that P would have during the commission of the crime. For example, where D provides P with a knife, he must know that P is likely to stab somebody with intention to kill or cause grievous bodily harm.

In R v Dunbar (1988) D persuaded P to inflict light violence on V during the course of a burglary. In fact, P went on to murder V. The court stated that D was not guilty as an accessory because he had not foreseen the mens rea of P. He had genuinely thought that P would attack V with intention to inflict light violence, not to kill.

Changing the Substance of a Specific Plan

What happens when two people come together to form a very specific plan, but one of them goes off plan and does something completely unexpected?

In R v Reardon (1999) the court stated that:

If B aids, abets, counsels or procures A to commit a crime against a particular person…B is not liable if A intentionally commits an offence of the same type against some other person.

So if Jessie approaches Walt and asks him to provide a gun so that he can kill Gus, Walt is not guilty as an accessory to murder if Jessie uses the gun to murder Michael. If a specific plan is formed, and the principal changes that plan in substance, then the secondary party is not guilty of an offence.

It is important to note that the plan must be changed by the principle in substance. That would include things like murdering a different person, but would not include murdering the correct person at a different time or in a different place.

Summary

  • Section 8 of the Accessories and Abettors Act 1861 makes it an offence to aid, abet, counsel or procure a crime.
  • The words in section 8 are to be given their ordinary meanings.
  • The actus reus of the offence is to do an act which actually aids, abets, counsels, or procures.
  • The mens rea requires an intention to aid, abet, counsel or procure but does not require the defendant to desire the commission of the crime.
  • The mens rea requires knowledge of the type of crime that P is likely to commit but does not require knowledge of specific details.
  • The mens rea requires foresight of the type of mens rea that P is likely to have when he commits the crime.
  • If P and D form a specific plan, and P changes the substance of the plan, then D is not guilty as an accessory.
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