Secondary Liability In The Criminal Law

  1. The issue of criminal liability for encouraging or assisting another person to commit an offence is a complex and difficult area. The issue is important because it is commonly the case that criminal offences involve two or more participants, only some of whom are the actual perpetrators of the offence. The principal is the person or persons who commit the actus reus of the offence. There may be joint principals, for example, where P1 and P2 attack V. Secondary parties provide assistance or encouragement to the principal or principals.

  2. The starting point is section 8 of the Accessories and Abettors Act 1861. This provides that whoever shall aid, abet, counsel or procure the commission of any indictable offence shall be liable to be tried, indicted and punished as a principal offender. Historically the position at common law was that aiders and abettors were said to be principals in the second degree and were actually or constructively present at the time the offence was committed by the principal. By contrast, counsellors and procurers were accessories before the fact whose presence at the time of the offence was not necessary. The current position is that the four varieties of conduct overlap and they cover any form of assistance or encouragement. (The position in relation to summary offences is governed by the Magistrates' Courts Act 1980, section 44, which is in all material respects identical to section 8.)

  3. There are three important points to note about section 8:

    i. It reflects the common law principle that aiding, abetting, counselling or procuring another person to commit an offence is not itself a distinct offence. The secondary party is himself guilty of the offence committed by the principal and liable to the same penalties. It is the principal's offence for which D is liable. For example, D encourages P to murder V. P stabs V intending to kill or cause serious bodily harm. Both D and P are guilty of murder and subject to the mandatory sentence of imprisonment for life. Secondary parties may be liable for P's crime even though they do not themselves satisfy the actus reus (conduct element) or mens rea (fault element) of P's offence.

    ii. It proceeds on the basis that the criminal liability of secondary parties is the same for every offence. Thus, while the definition of every offence will stipulate what the principal must do to incur liability, secondary liability is based on common law principles and applies to every offence.

    iii. It collapses the distinction between perpetrators and other participants. This has obvious procedural and other evidential advantages. Amongst other things it enables the prosecution to obtain a conviction even if it cannot be proved whether D was acting as a principal or accessory.

    For example, D1 and D2 are charged with bank robbery. They can be convicted even if it is not known who entered the bank and, using the threat of force, stole the money (the principal) and who drove the getaway car (the accessory). It has been held by the Court of Appeal that there is no violation of Article 6(3) of the European Convention on Human Rights when the prosecution alleges that D is party to an offence but cannot specify his precise role: R v. Mercer [2001] EWCA Crim. 638.

  4. Because the common law principle is that aiding and abetting etc. is not a distinct offence, the liability of a secondary party is properly described as derivative: it derives from and is dependent upon the liability of the principle. This derivative aspect of secondary party liability was reflected in the old common law rule that before D could be liable as a secondary party it was necessary first to convict and sentence P. Thus, if P was not apprehended or died or was pardoned, D could not be tried. This is no longer the case. It is, however, necessary to prove that an offence was committed by P. If D encourages P to commit an offence, D incurs no liability at common law if, subsequently, P for whatever reason does not go on to commit (or attempt to commit) the offence. For example, D supplies P with a torch knowing that P intends to use it in the course of a burglary. P decides not to commit the burglary. D is not guilty as a secondary party at common law. The position at common law is to be contrasted with offences under the Serious Crime Act 2007. These are inchoate offences committed by the offender as a principal, whether or not the encouraged crime occurs.

  5. There are two apparent exceptions to derivative liability:

    i. The doctrine of innocent agency: where D uses an innocent agent to commit the offence. In these circumstances D commits the offence as a principal and not as an accessory. For example, D uses a person who is insane, or under the age of criminal responsibility to commit an offence. The participation by the innocent agent is disregarded and D is treated as the principal.

    ii. The secondary party's liability can exceed the liability of the principal where he procures the commission of the conduct element of the offence but his fault is greater than the principal's. For example, D hands P a gun and tells P that it contains blank ammunition. D knows it contains live bullets. D encourages P to shoot at V in order to frighten V. P knows that V suffers from a serious heart condition. P shoots at and kills V with the live ammunition. P is guilty of manslaughter. D is guilty of murder: R v. Howe 1987 A.C. 417.

    Secondary Liability and Joint Enterprise Liability

  6. There is some question as to whether joint enterprise is a special case of secondary participation or merely a subset of aiding and abetting. The Law Commission was of the view that it was the former (Law Comm. No. 305: Participation In Crime (May 2007)). There is a division of opinion among scholars on this point but the preponderance of opinion disagrees with the Law Commission. The essential differences between the two concepts are set out below.

  7. In the case of secondary liability there is no need for any agreement between D and P that P will go on to commit an offence. For example, D, a...

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