Accessory Liability

A person who directly commits an offence is known as a principle offender, but sometimes there are others in the background who somehow facilitate the commission of an offence.

In today's article I shall briefly explore the concept of accessory liability. An accessory is the background figure who somehow facilitates the commission of an offence. Accessories are also known as secondary offenders.

Legislation:

The primary legislation pertaining to accessory liability is the Accessories and Abettors Act 1861.

Section 8 of this historic Act, states the following:

"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 simple terms this means that someone who abets (encourages) a burglary, for instance, can be convicted and punished as a burglar.

Indictable offence:

An indictable offence is one that can be tried on indictment (e.g. before a jury at the Crown Court). This includes all indictable only offences (e.g. robbery) as well as those that are triable either way (e.g. theft).

Actus reus:

In accordance with section 8, there are four different ways in which the actus reus of accessory liability can be satisfied - aiding, abetting, counselling or procuring the commission of an indictable offence.

In order to be liable as an accessory, at least one of these actus reus elements must be present.

• Aiding:

Aiding means somehow physically helping or assisting the principle offender. This assistance happens either before or during the commission of the offence, but it does not include anything afterwards.

Aiding would include things like providing weapons or equipment needed to commit an offence; providing transport to the crime scene; providing information needed to commit an offence.

• Abetting:

Abetting means providing encouragement to the principle offender during the commission of an offence. This could be through words (e.g. "kick him") or gestures (e.g. pointing out something to steal).

• Counselling:

Counselling means somehow encouraging or instigating the offence prior to its commission.

The level of encouragement does not need to be very high. In R v Gianetto [1997] 1 Cr App R 1 the defendant was found to have counselled the principle offender by saying "oh goody" when told of his plans to commit the offence.

• Procuring:

Procuring occurs where a secondary offender somehow lays the foundations of the offence before it takes place.

An example would be the secondary offender spiking a person's drink, with the intention that they then drive whilst over the prescribed limit.

Another would be the secondary offender leaving something valuable out on display, with the intention of enticing someone else into stealing it.

Mens rea:

This is potentially more complicated than the actus reus, so I provide a much simplified and abridged version.

In order to be liable as an accessory, two different mens rea elements must be present:

• A secondary offender must intentionally (or deliberately) commit the act that aided, abetted, counselled or procured the principle offender's commission of the offence (National Coal Board v Gamble [1959] 1 QB 11).
• A secondary offender must have knowledge of the circumstances of the offence (Johnson v Youden [1950] 1 KB 544). This means they must have some awareness of the principle's intention to commit the offence (or an offence of the same type).