In English law, secondary participation is a crime under section 8 of the Accessories and Abettors Act 1861. The Act states that “whosoever shall aid, abet, counsel or procure the commission of [an offence] shall be tried … and punished as a principal offender.” Although the Act only applies to indictable offences, section 44 of the Magistrates' Courts Act 1980 includes a similar provision about summary offences.
Although in Attorney-General's Reference (No. 1 of 1975) [1975], the Court of Appeal ruled that the words aiding and abetting would be given their “ordinary meaning”, the courts have since adopted the view that they refer to actions done at the scene of the crime. Similarly, the words “counsels or procures” were given their ordinary meaning but now refer to actions before the commission of the crime.
How is Criminal Responsibility of Accomplices Established?
Before an accomplice can be charged, Thornton v. Mitchell [1940] requires the actus reus of the crime be established against the principle. This does not extend to the mens rea, however
R v. Cogan and Leek [1976] determined that if an innocent agent is used to commit a crime, the accomplice can still be charged. R v. Austin [1981] expanded this to a general situation where the principle is found innocent but a crime has been committed.
What is the Actus Reus of an Accomplice?
The Accessories and Abettors Act 1861 provides that a person commits the actus reus of secondary participation in a crime if they assist in bringing the crime about; or are when it occurs.
However, the ruling in R v. Clarkson [1971] states that simply being present at a crime does not necessarily make a person an accessory. Nevertheless, Tuck v. Robson [1970] suggests presence may constitute encouragement if the person has a right or duty to act to prevent the crime taking place.
Furthermore, if the actus reus that has been established is the same, it is possible to charge accomplices for a more serious crime than the principle offender, as per R v. Howe [1987].
Accomplices are responsible for the consequences of carrying out a plan even if they were unexpected, following R v. Lovesey and Peterson [1970]. R v. Dunbar [1988] makes an exception to this rule for cases where the principle offender deliberately exceeds the boundaries of the plan.
The Mens Rea of Secondary Participation
The decision in National Coal Board v. Gamble [1959] requires that the accomplice have the intention to aid the principle offender, with knowledge of the circumstances. In Ferguson v. Weaving [1951], the court ruled that this is true even of strict liability crimes.
Johnston v. Youden [1950] established that “knowledge” here means knowledge of the essential matters of the offence. However, R v. Hyde [1990] states that an accomplice does not need to know that the crime has actually been committed, just that it may occur.
R v. Bainbridge [1960] expands on the decision in Johnston by stating that knowledge includes knowledge of the type of crime to be committed; such as theft. However, for murder, R v. Rahman (Islamur) [2008] demonstrates that accomplices do not need to foresee that the principle will kill, just that they may commit really serious harm.
Can an Accomplice Withdraw From a Crime?
There are some circumstances where it is possible for a person to withdraw from a crime and thus limit the extent to which they are a secondary participant. However, it is not possible for criminal lawyers to fully advise on whether a person has withdrawn as R v. Becerra (1975) states that test of withdrawal is subjective.
Nevertheless, the case of R v. Grundy [1977] ruled that words are enough to constitute withdrawal if they are spoken before the crime is committed. This case demonstrates the general rule that withdrawal must be communicated, although R v. Mitchell and another [1999] is a special exception to this. Mitchell allows a person to withdraw simply by leaving when “spontaneous” violence has occurred.
The Accessories and Abettors Act 1861 established criminal liability for secondary participants in a crime and made them liable on the same footing as the principle defendant. The accessory must intend to aid the principle and know the “essential matters” but the crime itself need not actually take place.
References:
- Allen, M.J. and Cooper, S. (2006) Elliott & Wood's Cases and Materials on Criminal Law (Ninth edition) Sweet & Maxwell, London
- Martin, E.A. (2003) A Dictionary of Law (Fifth edition) Oxford University Press, Oxford
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