Actus reus for secondary participation

The actus reus is that the secondary party must 'aid, abet, counsel or procure' the commission of the offence.

Under Sec 8 of the Accessories and Abettors Act 1861  '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.'  

In Attorney General’s Reference (No.1 0f 1975) the Court of Appeal held that each of the four words, aid, abet, counsel and procure, had a separate meaning.

Aiding meaning to give  help, support or assistance either before the crime, Bainbridge (1959) (supplying oxygen-cutting equipment used to carry out the crime), or at the time of the offence Betts and Ridley (1930) (acting as a lookout). The person who drives the getaway car for someone carrying out a robbery would be aiding the robbery so he would be a secondary offender.

 

Abetting refers to behaviour which could be said to incite or encourage an offence at the time of the offence.  Examples might include the encouragement to carry out the offence by calling out or shouting to the principal offender at the scene of the crime.  In Wilcox v Jeffery (1951)  Wilcox, the publisher of a music magazine went to a concert where a jazz musician named Hawkins was playing. Hawkins was American and should not have been in the country working as his visa did not allow him to work in England. Wilcox had bought a ticket to the concert, applauded the music and wrote about the performance. He was subsequently arrested for aiding and abetting Hawkins' crime.  Wilcox had nothing to do with Hawkins getting into the country or arranging the concert but he was convicted. On appeal the Appellate Court found that the concert had been illegal and Wilcox had supported the concert by attending, and by reviewing the concert in his magazine, he had sold magazines and benefited from the concert and had therefore aided and abetted the crime. If he had gone to the concert to condemn the show and hassle Hawkins to leave the stage he would not have been guilty of aiding and abetting.

 

There has to be an intention to encourage, mere presence can not usually be enough. In Bland (1988) the defendant had unwittingly allowed his property to be used by a drug dealer to store drugs. The court quashed his conviction because in that case they decided a more active involvement was necessary than just living with the dealer and having some knowledge of what was going on at the time.

 

Sometimes passive presence is enough for secondary participation as in Tuck v Robson (1970) when the pub landlord allowed his customers to remain in the pub drinking after hours. Even though he did not serve the drinks to them, he was convicted of abetting breaches of the licensing laws as it was his duty to tell his customers to leave the premises at closing time.

  

Counselling means to advise or encourage and is similar to abetting but it takes place before the crime is committed.  Examples might include the supply of suitable routes to properties to be burgled or the best times to carry out such crimes.  In Calhaem (1985) the female defendant wanted to have another woman killed, she hired a hit man to kill the woman, he decided not to carry out the murder claiming that he only intended to fake the murder attempt and then claim it had been unsuccessful. When he went to the woman's house he said that she screamed which caused him to panic and kill her. The judge held that the female defendant had persuaded the 'hit man' to commit the crime and she was guilty of counselling him and was therefore a secondary offender.

 


 

Procuring means ‘to produce by endeavour’. In other words setting out to see that a crime happens and taking appropriate steps to bring it about.  In Attorney General’s Reference (No.1 of 1975) (1975) the Court of Appeal  decided that procuring meant causing it or bringing it about.  An example can be found in the case itself which involved a secondary party who had spiked a driver's (the principal offender) drink with alcohol knowing that there would be a chance that he would later drive.  The secondary offender was found liable even though the driver was unaware that the secondary offender had spiked his drink. There must be a causal link between the procuring and the crime committed by the principal. In other words did the defendant’s act cause the offence to be committed?


Secondary liability gives the prosecution the opportunity to proceed against the principal offender who committed the crime and against others who were involved in the commission of the offence. Secondary liability is a common law doctrine.

 

Secondary Party; Joint Principals; Principal Offender

Law report: Foresight sufficient to make secondary party liable - Life ...

The current law and criticism of the doctrine

CASE SUMMARIES v 29 July 1996 - People - News - The ...

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