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Criminal Seminar -Accessorial Liability
Liability under the accessories and abettors act 1861
under s.8 of the Accessories and Abettors Act 1861, a defendant may be convicted as a
secondary party to an offence if he aids. abets, counsels, or procures the commission of that
offence. As s.8 states, a defendant who is a secondary party to a crime is tried, indicted, and
punished as a principal offender for that offence would be. Section 8 requires the
prosecution to prove both actus reus and mens rea elements. However, the actus reus and
mens rea elements required for liability as a secondary party are different to those required
for liability as a principal offender. For instance, imagine that Mick supplies Chris with a
sledgehammer, which Chris uses to kill George. In order to convict Chris of murder as a
principal offender, the prosecution would have to prove that Chris had both the actus reus
and mens rea of murder, i.e., that he unlawfully caused George's death with the intention to
kill or cause GBH. However, in order to convict Mick as a secondary party to the murder, the
prosecution would have to prove different actus reus and mens rea elements.
The actus reus of secondary liability requires the defendant to aid, abet, counsel, or procure
the principal to commit a criminal offence. Thus, the actus reus requires the secondary party
to assist or encourage the principal offence. The prosecution must also prove mens rea
elements of secondary liability. This requires the prosecution to prove (as summarised in
table 16.2):
(1) that the defendant intended to do the act which assisted or encouraged the principal
offence, and
(2)that he knew the essential matters which constitute the principal offence (i.e., that he
knew the circumstances which form the actus reus of the offence which might be com-
mitted and that he foresaw the mens rea of the principal).Thus, referring back to our
example involving the murder of George, Mick could be convicted as a secondary party if
the prosecution prove:
(1) that he aided (i.e., helped) the murder by supplying the sledgehammer;
(2) that he intended to supply the sledgehammer to Chris;
(3) that he knew that Chris might kill; and
(4) that he foresaw that if Chris did kill, he would do so with the requisite mens rea for mur-
der (i.e., intention to kill or cause GBH).
Actus Reus - Aiding
Aiding involves helping, assisting, or supporting the principal offender with the commission
of the offence. Aiding occurs before or during the principal offence. Where X helps a
principal offender after the commission of the principal offence, for example by disposing of
incriminating evidence or hiding the principal, X will not be guilty of an offence under s.8 of
the Accessories and Abettors Act 1861. Such an offender would be dealt with by separate
offences of participation after the offence.
,Examples of aiding include acting as lookout during the commission of the offence, driving
the principal to the scene of the crime (as in OPP for Northern Ireland v Maxwell [1978) 1
WLR 1350, in which the defendant drove the principals to a pub which they attacked by
throwing a bomb inside-see 16.1.2 .3), or supplying the principal with a weapon or with
information which helps him to commit the principal offence (as in Bainbridge [1960] 1 QB
129, in which the defendant supplied the principals to a burglary with oxygen cutting
equipment.
Abetting -
Abetting requires proof that:
(1) the defendant was present at the scene of the crime;
(2) he wilfully encouraged the commission of the offence; and
(3) he intended to encourage the offence.
Coney (1881-2) LR 8 QBD 534, the defendants' convictions for aiding and abetting an assault
at an illegal prize-fight were quashed. The Divisional Court held that presence at the scene
was not conclusive proof that the defendants had abetted the fight The prosecution must
also prove that the defendants encouraged the fight Cave J, who gave the leading judgment
in the Divisional Court, also stated that mere presence may provide evidence of encour-
agement. Cave J held that:
Where presence may be entirely accidental, it is not even evidence of aiding and abetting.
Where presence is prima facie not accidental it is evidence, but no more than evidence, for
the jury.
Thus, mere presence might provide evidence from which it can be inferred that the
defendant had encouraged the principal offence, but presence alone does not automatically
equate to encouragement.
Tuck v Robson [1970] 1 WLR 741, the defendant aided and abetted an offence through
inactivity. The defendant was a licensee of a pub. He was convicted of aiding and abetting
customers to consume alcohol outside licensing hours by allowing them to continue to drink
alcohol after hours. The Divisional Court held that the defendant had aided and abetted the
customers because he had taken no steps to stop them drinking, despite being in a position
of control. Thus, a defendant can abet an offence through inactivity if he is present at the
scene and in a position of control or authority.
Counselling
Counselling involves advising, soliciting, encouraging, or threatening the principal to commit
an offence. Counselling differs from abetting as it occurs before the principal offence,
whereas abetting requires proof that the defendant wilfully encouraged the principal
offence at the scene of the crime. In the case of Giannetto (1997) 1 Cr App R 1, the Court of
Appeal cited an example of counselling given to the jury by the trial judge in the case:
Supposing somebody came up to [the defendant] and said, 'I am going to kill your wife', if he
played any part, either in encouragement, as little as patting him on the back, nodding,
saying, 'Oh goody', that would be sufficient to involve him in the murder, to make him
guilty, because he is encouraging the murder.
, Calhaem [1985] 2 WLR 826, in which the defendant was convicted of counselling a private
detective to kill the victim. The victim was a woman who had been having an affair with the
defendant's solicitor, who the defendant herself was infatuated with. The private detective
killed the victim and was convicted of her murder. The defendant appealed against her
conviction for counselling the murder, arguing that counselling required a causal link
between the solicitation and the killing. The Court of Appeal upheld the defendant's
conviction and held that there need not be any causal connection between the counselling
and the principal offence.
Procuring
Procuring means 'to produce by endeavour', i.e., making something happen by taking
appropriate steps to produce that result. Procuring occurs before the principal offence. The
leading authority on the meaning of procuring is Attorney General's Reference (No. 1 of
1975) [1975] 2 All ER 684. In this case, the defendant secretly laced his friend's drink with
alcohol, knowing that his friend would be driving home. His friend was stopped by the police
on his way home and charged with driving whilst over the prescribed limit, contrary to s.6(1)
of the Road Traffic Act 1972. The defendant was charged with aiding, abetting, counselling,
or procuring this offence under s.8 of the Accessories and Abettors Act 1861. The defendant
was acquitted after the trial judge ruled that there was no case to answer because there was
no shared intention between the defendant and his friend. The defendant had not been
present in the car.
Mens Rea -
The mens rea of secondary liability is a complicated area. Traditionally, the mens rea of
secondary liability has been expressed as requiring proof of the following:
(1) that the defendant intended to do the act which assisted or encouraged the principal
offence; and
(2) that he knew the essential matters which constitute the principal offence.
Intention to do acts of assistance or encouragement
The first element of mens rea which must be proved is that the defendant intended to do
the acts of assistance. This was confirmed by the Divisional Court in National Coal Board v
Gamble I 1959) 1 QB 11. This case involved a weighbridge operator who allowed a lorry
which had been overloaded with coal to leave the colliery. As a result, the lorry was driven
on a road whilst nearly four tons overweight. The National Coal Board, the employer of the
weighbridge operator, was convicted of aiding, abetting, counselling, or procuring the of-
fence of unlawfully using an overloaded lorry on a road. The National Coal Board’s appeal
was dismissed. The Divisional Court held that by allowing the lorry to leave the colliery
(through one of its employees), the Board intended to aid the principal offence. Devlin J
confirmed that:
aiding and abetting is a crime that requires proof of mens rea, that is to say, of intention to
aid as well as of knowledge of the circumstances, and that proof of the intent involves proof
of a positive act of assistance voluntarily done.
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