 Note: Cases linked in the text on the right are either to BAILII reports (where available) or the Wikipedia reference. Author
Andrew Keogh, Barrister Index Contents
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Chapter 4: Bases of liability
4.1 Principal and secondary offenders
4.1.1 Plainly where there are multiple participants in a crime, the various offenders will be almost inevitably playing different roles. The principal offender will be the one most directly and immediately linked with the actus reus but as regards the overwhelming majority of offences there may also be secondary parties, for example the party who hands the weapon to the perpetrator of a crime of violence or the party who shouts encouragement to the attacker. The fact of secondary participants does not create a multiplicity of offences. There remains one crime. The relevant statute law is section 8 Accessories and Abettors Act 1861 as amended by Schedule 12 Criminal Law Act 1977 which provides as follows: ‘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'. Having said this, liability as a secondary participant is a common law concept and, unless excluded explicitly or by implication, applicable to all offences whether indictable or summary notwithstanding the reference to ‘indictable offence' in section 8 above. Furthermore, there is an equivalent to section 8 as regards summary offences by virtue of section 44(1) Magistrates Courts Act 1980 which provides that ‘a person who aids, abets, counsels or procures the commission by another person of a summary offence shall be guilty of the like offence and may be tried (whether or not he is charged as a principal) either by a court having jurisdiction to try that other person or by a court having by virtue of his own offence jurisdiction to try him' . Perhaps a little curiously given the above, some statutes make explicit that being an accessory to an offence is an offence.
4.1.2 Assisting suicide 4.1.2.1 It is also the case that by virtue of section 2 Suicide Act 1961 aiding, abetting, counselling or procuring another to commit suicide is an offence despite the fact that suicide is not a crime. Section 2 provides as follows: Criminal liability for complicity in another's suicide (1)A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years. (2)If on the trial of an indictment for murder or manslaughter it is proved that the accused aided, abetted, counselled or procured the suicide of the person in question, the jury may find him guilty of that offence.... (4) ...no proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions. 4.1.2.2 This provision has been a matter of considerable recent controversy. In Pretty v. Director of Public Prosecutions and Secretary of State for the Home Department [2001] UKHL 61 (29th November, 2001) it was held that there was no incompatibility between this provision and a number of articles of the ECHR which had been invoked in challenge to it. The appellant then made application to the European Court of Human Rights in Pretty v United Kingdom - 2346/02 [2002] ECHR 427 (29 April 2002) where it was held that if the prohibition of assisted suicide in section 2 constituted a contravention of the right to respect for the applicant's private life, the interference was prescribed by law and served a legitimate objective. Section 2 was to protect the weak and vulnerable and in particular those incapable of taking an informed decision as to ending their lives. This was primarily a matter for states and as there was a risk of abuse then a blanket ban could not be considered disproportionate. Flexibility was to be found in the necessity of the consent of the Director of Public Prosecutions for prosecution under the provision and also in the sentencing options. Nor was it disproportionate for the Director to refuse to give an advance undertaking in relation to the applicant's husband's position should he assist her suicide.
4.1.2.3 The subject was revisited in Purdy, R (on the application of) v Director of Public Prosecutions & Ors [2009] EWCA Civ 92 (19 February 2009) where it was held that the state's interference was ‘in accordance with the law' as per Article 8(2) despite the absence of case specific guidance by the Director as to who would be prosecuted under the section. On the 23 September 2009 the Director issued an in interim policy for prosecutors in cases of assisted suicide Factors that would weigh against a prosecution included: the victim had a ‘clear, settled and informed wish' to commit suicide; had indicated that wish to the suspect unequivocally; had asked for help on his/her own initiative; had a terminal illness, severe incurable physical disability or severe degenerative physical condition with no hope of cure; the suspect was ‘wholly motivated by compassion' and was a spouse, partner, close relative or close friend ‘within the context of a long-term and supportive relationship'. Conversely, factors weighing in favour of a prosecution included Factors weighing in favour of a prosecution included: the victim being under 18; had not asked for help on his or her own initiative; had impaired capacity to make an informed decision; did not have a ‘clear settled and informed wish' to commit suicide; did not have a terminal illness or severe and incurable disability and that the suspect was not wholly motivated by compassion'. It was emphasised that assisting suicide remained a criminal offence but the fact that an offence had been committed did not mean that a prosecution automatically followed.
4.2 Principals – There can of course be multiple principals to a crime and the distinction between principal and abettor is not always clear. The expressions ‘joint enterprise' and ‘parties thereto' are used freely and without distinction between principals and secondary offenders. By way of further confusion, the principal need not be the direct actor as regards the criminal act or even be present for the commission of the offence – an offender is culpable as principal if the offence is committed via an innocent agent). Having said this, Latif and Shazad the intervention of an agent who acts in full knowledge of the facts but not in concert with the principal but for his/her own purposes relieves the principal of criminal responsibility for the intended offence (but not for attempt).
4.3 Secondary parties – the words ‘aid, abet, counsel and procure' are words to be given their ordinary meaning. Aiders and abettors can be equated with principals in the second degree and counsellors and procurers can be equated with accessories before the fact.
4.3.1 Aiders and abettors – may be present during the commission of the relevant offence and take some part in it Ferguson v Weaving 18-10 but accessories before the fact, the suppliers of equipment for a criminal offence are aiders and abettors rather than counsellors or procurers. Inability to act as principal by virtue of age or gender is no bar to conviction as aider and abettor. For example a woman can be convicted of rape as aider and abettor despite being incapable of committing the offence as principal. Non-accidental presence is evidence for the consideration of the jury but no more. Accidental presence alone is not capable of being evidence of aiding and abetting. Some degree of participation is required. Not acting to stop the offence and/or apprehend the offender is not sufficient. The jury decides whether what has been done is in furtherance of the common design (on the basis that the common design still exists at the material time) or steps outside what has been contemplated and thus is not part of the joint enterprise. That the relevant act is outside the common design does not absolve accessories of all responsibility. For example, if one of a group of attackers stabs the victim, an act outside the contemplation of associates who intend, and are involved in, a fistfight then the associates are not guilty of (say) section 18 wounding on the stab victim but may be guilty of affray or assault occasioning actual bodily harm with reference to lesser injuries inflicted on the victim in the fistfight.
4.3.2 Encouragement requires not only the act(s) constituting encouragement but also the element of wilfulness (for wilfulness see R v Sheppard [1981] AC 394 HL) as regards encouragement. The mere fact that non-accidental presence has encouraged the principal is not enough. There is however a line of motoring cases where knowledge of the principal's offence plus a failure to exercise undoubtedly existent control was sufficient to found guilt. The crucial point here is the entitlement as well as ability to intervene. Additionally, voluntary presence in an aggressive crowd may be enough without more to raise a prima facie case as regards public order offences.
4.4 Counselling and procuring – The counsellor (or procurer) of an offence is only liable for that offence if it is committed in consequence of the counselling (or procuring) allowing for the fact that the counselling need not be the sole or even substantial cause of the offence. Having said this, statute has intervened in that the Serious Crime Act 2007 Part 2 creates offences where the solicited offence is not committed by virtue of sections 44 – 49. Procuring may be seen to be stronger than counselling in that it involves effort in a way that advice in the counselling sense may not, for example ‘laced drinks' excess alcohol cases where the procurer has supplied the means whereby the offence is committed. Procuring may be direct, for example by issuing an order or indirect, for example by stating approval but concealment of an offence or passive acquiescence will not be criminally culpable as procurer. If a particular offence is counselled, the counsellor will not be criminally liable for the act of the principal if the latter commits a different offence against the same victim. If, however, the principal, having been counselled to commit an offence against A, mistakenly commits the same offence against B, then it seems that the counsellor is criminally liable for his act.
4.5 Agents provocateur – That the defendant would not have committed the offence but for the intervention of the agent provocateur is no defence. A police officer or informer may not counsel or procure an offence which would not otherwise take place but it may be appropriate to take part in a pre-existing agreement to commit an offence with the objective solely of bringing the offenders to justice. Whether this exceptional defence is applicable to the facts of the case is a matter for the jury.
4.6 Where the secondary party withdraws from the agreement – an effective withdrawal prior to the commission of the offence may absolve the secondary party from criminal responsibility for that offence. Effective withdrawal necessitates unequivocal communication of the change of mind by the secondary participant. A change of mind remaining in the mind and not expressed externally will plainly not suffice. It is doubtful whether a secondary participant can withdraw from the agreement once the commission of the crime has commenced. At the very least, the communication must be such as to give the principals the opportunity to cease the commission of the offence. It was said in Bryce [2004] 2 Cr App R 55 CA that on the basis that an act of encouraging or counselling has been done with the necessary mental element then a further act countermanding the original act is necessary to avoid criminal liability. Having said this, in R v O'Flaherty, Ryan and Toussaint [2004] 2 Cr App R 20 CA that a person who disengages or withdraws before the fatal blow or blows is/are delivered is not guilty of murder. Evidence of withdrawal is a matter for the jury to assess and what is needed to demonstrate it is variable depending on the circumstances. Even an effective withdrawal from the substantive offence will not absolve the secondary participant from a charge of conspiracy, the offence being the agreement.
4.7 A substantive offence must be proved in order to found a conviction in respect of any category of secondary participant but it may be the case that a secondary participant may properly be convicted notwithstanding the acquittal of the principal, for example where evidence is admissible against the secondary party but not the principal or that a defence is applicable to the principal but not secondary party.
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