aiding abetting counselling procuring agent

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Aiding abetting counselling procuring agent ante post football betting

Aiding abetting counselling procuring agent

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TODAYS PREDICTION BETTING

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 These are inchoate offences committed by the offender as a principal, whether or not the encouraged crime occurs.

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.

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 A. 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.

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. 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 shopkeeper, sells P an article knowing that P will use it to commit burglary. P uses the article to commit burglary. D is also guilty of burglary even though he may have hoped that P would not go on to commit the offence. Moreover, in ordinary cases of aiding and abetting, D must help or encourage the commission of the crime committed by P.

In the case of joint enterprise liability, D and P embark on a joint venture to commit an offence, and, in the course of the joint venture, P commits another offence. For example, D and P agree to commit burglary. If P commits the offence while D acts as a lookout, no difficulty arises. But what if P commits another offence which is in addition to or instead of the agreed offence? They are disturbed by the householder, V.

D knows that P is armed with a knife. P uses the knife to stab and kill V. D is guilty of murder if he foresaw that P, as an incident of the joint venture might commit that offence: Chan Wing-Siu [] A. The rationale for the joint enterprise liability rule is that D, by attaching himself to the venture to commit one offence, consciously accepts the risk that a co-adventurer might commit another offence.

The inter-relationship between secondary participation and joint enterprise has not been the subject of detailed consideration by the courts but the issue may be resolved by the Supreme Court in R v. In that case D's conviction for murder was quashed by the Court of Appeal. D and D1 were involved in a gunfight. The case for the Crown was that they were both involved in a joint enterprise to commit affray with foresight that murder might be committed.

The Crown had conceded that there could be no joint enterprise on the basis of an agreement by D1 and D2 to shoot at each other. The Court of Appeal questioned whether this concession was right and suggested that as a matter of policy the criminal law might require the imposition of liability in cases of duels between opposing persons. The reason why the law of secondary liability is so complicated is because it is necessary to consider the acts and state of mind of both D and P.

P may be guilty of an offence which requires proof of certain conduct coupled with any one of a number of fault elements intention, recklessness, maliciousness, negligence, knowledge, belief, suspicion. D as a secondary party is the person who with the requisite state of mind aids, abets, counsels or procures the principal offender to commit the offence.

It follows that in D's case it is necessary to prove both a conduct element actus reus and fault element mens rea. Procuring means to produce by endeavour. Causation is vital: Attorney General's Reference No. While causation is vital, the procuring need not be the sole or decisive reason why P committed the offence. It is sufficient if it played some part in P's decision to commit the offence. In some circumstances the procuring need not be known to P.

For example, D laces P's drinks and P, unaware of what has happened, drives his vehicle with excess alcohol. Aiding means providing assistance or giving support to P and there must be actual assistance. For example, D sends P a torch to use in the commission of a burglary. Before it arrives P leaves to commit the offence.

P need not be aware of the assistance provided he is in fact assisted. For example, P intends to kill V. D prevents Y from warning V of the danger. In the case of aiding, it is not necessary to prove that P was aware of D's contribution to the offence. For example, D knows that P intends to assault V. D meets V and sends him in P's direction.

Abetting means to incite by aid, to investigate or encourage. Encouragement must have the capacity to act on P's mind and therefore P must be aware of D's encouragement. D is not guilty as a secondary party. However, D would be liable if P heard what he had said and even if it made no difference to his course of action; because he had already made up his mind to assault V.

Counselling involves the provision of advice or information and encompasses urging someone to commit an offence. Voluntary presence at the scene of a crime may be capable of constituting encouragement but in such a case D must intend that his presence should encourage P, and P must in fact be encouraged by D's presence: Coney 8 Q. In Wilcox v. Jeffrey [] 1 All E.

There is no general duty in English law to prevent crime although a citizen has a duty, if called upon, to assist a constable to prevent a breach of the peace: R v. As a matter of general principle the criminal law is reluctant to impose liability for omissions as this has the potential to widen the scope of liability to an exorbitant degree.

Consistent with this general rule an omission to act does not ordinarily fix D with secondary liability. In the case of i above, failure to discharge the duty is capable of constituting assistance or encouragement. For example, D, a security guard omits to keep watch on his premises which are burgled by P. In the case of ii above, failure to exercise the entitlement may render D liable for an offence that P commits as a result.

For example, D owns a car in which he is travelling as a passenger. P, the driver, drives dangerously. D is also guilty of dangerous driving. It should be noted that the precise scope of this exception to the general rule is unclear. The fault element of secondary liability is notoriously complicated. This is because D's state of mind must relate to what he himself does and what he knows about P that is P's conduct and state of mind.

This means that it is necessary to consider:. Suppose D is a shopkeeper. D sells P a hammer. P uses the hammer to assault V. D has done an act which contributed to assisted the commission of the assault. Is D guilty as a secondary party? It depends. If D had no idea that P would use the hammer to assault V, D is not implicated in P's conduct and is not guilty as a secondary party.

But, what would the prosecution be required to prove to establish D's guilt? The first aspect of the fault element is that D must intend the act of assistance or encouragement. It is the assistance or encouragement that must be intended, not the ultimate crime. For example, D may hand P a jemmy knowing that P intends to use it to commit a burglary. D may hope that P changes his mind but this is irrelevant.

It was because of the potential scope of liability that Professor Glanville Williams argued for an exception from liability for shopkeepers. This was on the basis that the seller of an ordinary marketable commodity should not be his buyer's keeper in the criminal law. In the ' mere presence ' type of case the prosecution must also prove that D intended to assist or encourage P, in the sense of acting to do so: R v. Coney 8 Q. The prosecution must prove that D believed that his conduct has the capacity to assist or encourage P although some of the cases suggest that D's belief must be that his conduct is encouraging to P.

Procuring is a special case because it requires D to endeavour to cause the commission of the offence. In Johnson v. Youden [] 1 K. It is therefore necessary to establish what is meant by the " essential matters " and what is meant by " know. In their report on secondary participation, the Law Commission concluded that the essential matters are fourfold:. D must " know " that P is going to do an act which satisfies the conduct element of the offence but not necessarily the details of the act.

D must " know " of the circumstances necessary to constitute the offence. For example, D sells P a hammer believing that P will use it to cause damage to property belonging to P. One circumstance that must be present in the offence of criminal damage is that the property belongs to another person. If P uses the hammer to damage property belonging to V, D is not guilty, as a secondary party, to P's offence of causing criminal damage.

As a general rule D must " know " the consequence element of the offence. But an exception arises if the principal's liability for the consequence is ' constructive. Both D and P intend to cause V only minor harm. P hits V and V falls over and dies. So too is D. D must " know " that P will act with the fault element required in relation to the principal offence.

For example, D assists P to appropriate property belonging to another. P does so dishonestly and with an intention permanently to deprive that other person of the property. D is guilty as a secondary party if he ' knew ' that P would act with that state of mind. The Law Commission concluded that the requirement of knowledge is satisfied if D knows or believes that:. P is doing or will do so in the circumstances and with the consequences, proof of which is required for conviction of the offence.

As the Law Commission noted, despite what was said by Lord Goddard in Johnson and Youden and despite the fact that that case was approved by the House of Lords on two occasions, there are decisions of the High Court and the Court of Appeal which appear to dilute the requirement of knowledge.

These cases provide some support for four possible tests:. D must foresee the risk of a strong possibility that P will commit the offence: R v. Reardon [] CLR ;. This happens most often when there is a perceived culpability gap between accomplice and primary offender. Such accomplices are usually victims, customers, or subordinates of a primary offender.

On other occasions, an accomplice will be charged as a co-conspirator because the facts that will support accomplice liability will ordinarily support conspirator liability and conspiracy is a separate offense. Section 2 b willfully causing a crime applies to defendants who work through either witting or unwitting intermediaries, through the guilty or the innocent. Section 2 b applies even if the intermediary is unaware of the nature of his conduct.

Section 2 a requires two guilty parties, a primary offender and an accomplice. Both subsections, however, require a completed offense. Federal courts sometimes mention, but rarely apply, a withdrawal defense comparable to one available in conspiracy cases. Defendants are more likely to succeed by attacking the elements for liability, that is, arguing that they did not knowingly intend to commit the underlying offense or that no underlying offense ever occurred.

There is no general civil aiding and abetting statute. Aiding and abetting a violation of a federal criminal law does not trigger civil liability unless Congress has said so in so many words. Aiding and abetting means assisting in the commission of someone else's crime. Section 2 b permits prosecution when there is only one guilty party, a "causing" individual and an innocent agent. Virtually every federal criminal statute has a hidden feature; helpers and hands-on offenders face the same punishment.

This accomplice liability is much like that which accompanies conspiracy, and the rationale is the same for both: society fears the crimes of several more than the crimes of one. Aiding and abetting, unlike conspiracy, is not a separate crime; instead it serves as an alternative means of incurring criminal liability for the underlying offense.

At English common law, felonies were punishable by death in most instances. An individual might be guilty of a felony as a leal in the first degree, a principal in the second degree, an accessory before the fact, or an accessory after the fact. A principal in the first degree was he who by his own hand committed the crime. A principal in the second degree was "he who [was] present, aiding, and abetting the fact to be done.

When the first Congress convened, it outlawed as capital offenses piracy and related murders and robberies. At the same time, it merged the concepts of principal in the second degree those who aided and abetted and accessory before the fact those who commanded and counseled in piracy cases, condemning to death anyone who "knowingly and wittingly aid[ed] and assist[ed], procure[d], commanded[ed], counsel[ed] or advise[d] any person or persons, to do or commit any murder or robbery, or other piracy aforesaid, upon the seas.

The Revised Statutes, the first official codification of federal law, carried the piracy provision forward with slight modifications. It remained for the codification of federal criminal law to extend coverage beyond a few individual offenses like piracy to the general coverage now found in 18 U.

The commission, established in to recommend a proposed United States Penal Code, urged from the beginning the elimination of the common law distinctions between principals and accessories before the fact. Congress acted on its recommendation in Congress carried the provision forward in its recodification. It added Section 2 b , however, to ensure criminal liability of the offender worked who remotely to commit the offense entirely by commanding or duping others.

Conviction under Section 2 a requires that a defendant embrace the crime of another and consciously do something to contribute to its success. Although its elements are variously described, it is often said that, "[i]n order to aid and abet another to commit a crime it is necessary [1] that a defendant in some sort associate himself with the venture, [2] that he participate in it as in something that he wishes to bring about, [3] that he seek by his action to make it succeed," and [4] that someone commits the offense.

Satisfying only one of these elements is not enough. Thus, presence at the commission of a crime or close association with the perpetrator does not constitute aiding and abetting, without more. Yet, a defendant's level of participation may be relatively minimal and need not advance every element of the crime. As for seeking to make it succeed, the defendant must intend the commission of the underlying offense, and that intent requires that he be aware beforehand of the scope of the offense in order to permit him to disassociate himself.

Thus, the defendant must know that the offense is afoot before it occurs if he is to be convicted of aiding and abetting. A completed offense is a prerequisite to conviction for aiding and abetting, but the hands-on offender need be neither named nor convicted. As a general rule, the defendant's aiding and abetting must come before or at the time of the offense.

The general rule, however, does not always apply when the defendant's assistance straddles elements of the offense. At common law, robbery consisted of forceful taking the personal property of another from his person and carrying it away.

The federal bank robbery statute carries forward this notion when it outlaws "taking and carrying away" a bank's money. Thus in a sense aiding another to escape, that is to "carry away" the proceeds of a robbery, might be considered aiding and abetting before the crime is over.

A number of courts have concluded that one who assists a bank robber to escape may be charged with aiding and abetting. Elsewhere, assistance given after the crime has occurred is ordinarily treated as a separate, less severely punished, offense — acting as an accessory after the fact.

Conviction requires the government to "demonstrate 1 the commission of an underlying offense against the United States; 2 the defendant's knowledge of that offense; and 3 assistance by the defendant in order to prevent the apprehension, trial, or punishment for the offender. Whether by prosecutorial discretion or judicial pronouncement, accomplices sometimes void the application of federal principles of secondary criminal liability which usually govern conspiracy and aiding and abetting cases.

It happens most often when there is a substantial culpability gap between the accomplice or co-conspirator and the primary offender. The cases frequently involve one of three types of accomplices or co-conspirators: victims, customers, or subordinates. Some do. Some do not. Culpability makes a difference. For instance, the Hobbs Act outlaws extortion by public officials.

Victims at the mercy of a corrupt public official might not be charged. Yet, the erstwhile victim who is the moving party or a willing participant in a scheme to corrupt a public official is likely to be convicted and sentenced either for bribery or as an accomplice to extortion. Examples from the Supreme Court include United States v.

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Although it is not essential for D to be present at the scene of the crime if charged with aiding, it seems that it is essential for abetting. A remarkable example of abetting is provided by the recent Supreme Court case of Gnango A young woman, Magda Pniewska, was caught in the crossfire and killed — shot once in the head by Bandana Man.

Gnango was subsequently convicted of the attempted murder of Bandana Man and the murder of Magda, on the basis of joint enterprise. He successfully appealed against his murder conviction to the Court of Appeal, but the prosecution appealed to the Supreme Court. That court, sitting with seven judges, allowed the appeal, and reinstated the murder conviction — not on the basis of joint enterprise, but on the basis of secondary liability.

Bandana Man, meanwhile, was attempting to murder Gnango, but inadvertently shot Magda. Through the application of transferred malice, this would have made Bandana Man guilty of her murder. Lord Phillips explained his reasoning as follows:. Under the doctrine of transferred malice he was guilty of her murder. A number of cases have raised the issue whether mere presence at the scene of the crime as opposed to presence combined with some actions: shouting, gesticulating, etc will suffice for the actus reus of abetting.

In Coney and others 8 QBD , three onlookers at an illegal bare-knuckle fight were convicted of abetting assault. The Court of Criminal Appeal quashed their convictions following misdirections to the jury. The court held that, although presence alone may suffice for the actus reus , it must be combined with the culpable mental element for it to amount to the offence of abetting. Hawkins J said:. In the latter case he aids and abets, in the former he does not.

It is no criminal offence to stand by, a mere passive spectator of a crime … But the fact that a person was voluntarily and purposely present witnessing the commission of a crime and offered no opposition to it … or at least to express his dissent might under some circumstances afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. There have been a number of cases since. The law now is that D may be guilty of abetting via presence alone if:.

His presence provided encouragement in fact. He intended to provide encouragement through his presence. In Allan 1 QB , there was no actual encouragement in fact. D was present at an affray. The Court of Appeal quashed his conviction of abetting a public order offence. To hold otherwise would be tantamount to convicting D for his thoughts alone.

Meanwhile, in Clarkson and others 1 WLR , there was no evidence of an intention to encourage. The appellants were soldiers at a British Army barracks in Germany who had witnessed the gang rape by at least three soldiers of an year-old girl. Other soldiers had clearly aided and abetted the rape by holding the girl down, but there was no evidence that two of the appellants did anything other than just watch.

Wilcox v Jeffrey 1 All ER Coleman Hawkins, a famous American saxophonist, appeared at a concert in London, iillegally the terms of his entry into the UK being that he did not take up employment. D was the owner of a magazine, Jazz Illustrated , who had met Hawkins at the airport, jattended the concert and then written a very positive review of the concert in the jmagazine.

If D has knowledge of the actions of the principal, plus the duty or right to control them, but deliberately chooses not to, then he may be guilty of aiding or abetting by omission. In Du Cros v Lambourne 1 KB 40 and Rubie v Faulkner 1 KB , the defendants were the owners of cars who had allowed the principal to drive their cars carelessly, while they sat in the passenger seat.

Both defendants were convicted of abetting road traffic offences. Presence in the vehicle, combined with at least the right to tell the driver what to do, was sufficient for liability. D, a pub landlord, had failed to get late drinkers out of his pub after closing time. D was con-victed of aiding and abetting three customers to consume intoxicating liquor out of licensed hours, contrary to the Licensing Act His presence in the pub combined with his failure to take steps to ensure the drinkers drank up and left on time was enough for liability.

D was convicted of abetting his friend, E, in causing death by dangerous driving. V, a rear seat passenger, was thrown out of the car and killed. E pleaded guilty to the substantive offence and D, who had pleaded not guilty, was convicted of abetting him by allowing him to drive his car, when E was obviously drunk.

The Court of Appeal held that the crucial issue was whether D had an opportunity to intervene once he realised because of the speed at which he was going that E was driving dangerously. In Martin EWCA Crim , D was convicted of aiding and abetting a learner driver, E, to commit the offence of causing death by dangerous driving. E and a passenger were killed. The Court took the opportunity to clarify the law in such cases.

To convict, a jury would have to be sure that E the driver had caused death by dangerous driving; D the supervisor knew that E was driving in a manner which D knew fell far below the standard of a competent and careful driver; D, knowing that he had an opportunity to stop E from driving in that manner, deliberately did not take that opportunity; by not taking that opportunity, D intended to assist or encourage E to drive in that manner; and D did in fact, by his presence and failure to intervene, encourage E to drive dangerously.

Calhaem 1 QB D wanted a woman, V, killed. Z pleaded guilty to murder and D was convicted of counselling. This was rejected and her conviction was upheld. A good example is provided by the facts of Cogan and Leak , above: L clearly procured the crime of rape by terrorising his wife into having sex with C.

In Millward Crim LR , D, a farmer, had given his employee, E, instructions to drive a tractor and trailer on a public road. The t ractor was poorly maintained and the trailer became detached, hit a car and killed V, a passenger in the car. E was acquitted of causing death by reckless driving there being no suggestion that his driving was to blame , but D was convicted of procuring the offence and the Court of Appeal upheld the conviction.

In Marchant and Muntz EWCA Crim ; 1 WLR , another farmer was convicted of procuring the offence of causing death by dangerous driving after instructing an employee, E, to take an agricultural vehicle onto a public road. A motorcyclist collided with the vehicle and was killed and it was alleged that simply driving the vehicle itself on a public road was dangerous.

This case is discussed further in Chapter When the latter drove home he was arrested and charged with driving under the influence of alcohol. D was charged with procuring the offence. The accessory may be liable here: what is crucial is the performance of the actus reus by the principal. This was seen in Cogan and Leak , above. The same principle was used in Millward , above.

The hapless driver of the tractor trailer on the occasion of the fatality was not convicted he lacked the mens rea of the offence , but the owner of the machinery was found guilty of procuring the offence of causing death by reckless driving. 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 A. 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. 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. 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 shopkeeper, sells P an article knowing that P will use it to commit burglary.

P uses the article to commit burglary. D is also guilty of burglary even though he may have hoped that P would not go on to commit the offence. Moreover, in ordinary cases of aiding and abetting, D must help or encourage the commission of the crime committed by P. In the case of joint enterprise liability, D and P embark on a joint venture to commit an offence, and, in the course of the joint venture, P commits another offence.

For example, D and P agree to commit burglary. If P commits the offence while D acts as a lookout, no difficulty arises. But what if P commits another offence which is in addition to or instead of the agreed offence? They are disturbed by the householder, V. D knows that P is armed with a knife.

P uses the knife to stab and kill V. D is guilty of murder if he foresaw that P, as an incident of the joint venture might commit that offence: Chan Wing-Siu [] A. The rationale for the joint enterprise liability rule is that D, by attaching himself to the venture to commit one offence, consciously accepts the risk that a co-adventurer might commit another offence.

The inter-relationship between secondary participation and joint enterprise has not been the subject of detailed consideration by the courts but the issue may be resolved by the Supreme Court in R v. In that case D's conviction for murder was quashed by the Court of Appeal.

D and D1 were involved in a gunfight. The case for the Crown was that they were both involved in a joint enterprise to commit affray with foresight that murder might be committed. The Crown had conceded that there could be no joint enterprise on the basis of an agreement by D1 and D2 to shoot at each other. The Court of Appeal questioned whether this concession was right and suggested that as a matter of policy the criminal law might require the imposition of liability in cases of duels between opposing persons.

The reason why the law of secondary liability is so complicated is because it is necessary to consider the acts and state of mind of both D and P. P may be guilty of an offence which requires proof of certain conduct coupled with any one of a number of fault elements intention, recklessness, maliciousness, negligence, knowledge, belief, suspicion.

D as a secondary party is the person who with the requisite state of mind aids, abets, counsels or procures the principal offender to commit the offence. It follows that in D's case it is necessary to prove both a conduct element actus reus and fault element mens rea. Procuring means to produce by endeavour. Causation is vital: Attorney General's Reference No. While causation is vital, the procuring need not be the sole or decisive reason why P committed the offence.

It is sufficient if it played some part in P's decision to commit the offence. In some circumstances the procuring need not be known to P. For example, D laces P's drinks and P, unaware of what has happened, drives his vehicle with excess alcohol. Aiding means providing assistance or giving support to P and there must be actual assistance.

For example, D sends P a torch to use in the commission of a burglary. Before it arrives P leaves to commit the offence. P need not be aware of the assistance provided he is in fact assisted. For example, P intends to kill V. D prevents Y from warning V of the danger. In the case of aiding, it is not necessary to prove that P was aware of D's contribution to the offence.

For example, D knows that P intends to assault V. D meets V and sends him in P's direction. Abetting means to incite by aid, to investigate or encourage. Encouragement must have the capacity to act on P's mind and therefore P must be aware of D's encouragement. D is not guilty as a secondary party.

However, D would be liable if P heard what he had said and even if it made no difference to his course of action; because he had already made up his mind to assault V. Counselling involves the provision of advice or information and encompasses urging someone to commit an offence. Voluntary presence at the scene of a crime may be capable of constituting encouragement but in such a case D must intend that his presence should encourage P, and P must in fact be encouraged by D's presence: Coney 8 Q.

In Wilcox v. Jeffrey [] 1 All E. There is no general duty in English law to prevent crime although a citizen has a duty, if called upon, to assist a constable to prevent a breach of the peace: R v. As a matter of general principle the criminal law is reluctant to impose liability for omissions as this has the potential to widen the scope of liability to an exorbitant degree.

Consistent with this general rule an omission to act does not ordinarily fix D with secondary liability. In the case of i above, failure to discharge the duty is capable of constituting assistance or encouragement. For example, D, a security guard omits to keep watch on his premises which are burgled by P.

In the case of ii above, failure to exercise the entitlement may render D liable for an offence that P commits as a result. For example, D owns a car in which he is travelling as a passenger. P, the driver, drives dangerously.

D is also guilty of dangerous driving. It should be noted that the precise scope of this exception to the general rule is unclear. The fault element of secondary liability is notoriously complicated. This is because D's state of mind must relate to what he himself does and what he knows about P that is P's conduct and state of mind.

This means that it is necessary to consider:. Suppose D is a shopkeeper. D sells P a hammer. P uses the hammer to assault V. D has done an act which contributed to assisted the commission of the assault. Is D guilty as a secondary party?

It depends. If D had no idea that P would use the hammer to assault V, D is not implicated in P's conduct and is not guilty as a secondary party. But, what would the prosecution be required to prove to establish D's guilt? The first aspect of the fault element is that D must intend the act of assistance or encouragement. It is the assistance or encouragement that must be intended, not the ultimate crime.

For example, D may hand P a jemmy knowing that P intends to use it to commit a burglary. D may hope that P changes his mind but this is irrelevant. It was because of the potential scope of liability that Professor Glanville Williams argued for an exception from liability for shopkeepers. This was on the basis that the seller of an ordinary marketable commodity should not be his buyer's keeper in the criminal law.

In the ' mere presence ' type of case the prosecution must also prove that D intended to assist or encourage P, in the sense of acting to do so: R v. Coney 8 Q. The prosecution must prove that D believed that his conduct has the capacity to assist or encourage P although some of the cases suggest that D's belief must be that his conduct is encouraging to P. Procuring is a special case because it requires D to endeavour to cause the commission of the offence. In Johnson v. Youden [] 1 K.

It is therefore necessary to establish what is meant by the " essential matters " and what is meant by " know. In their report on secondary participation, the Law Commission concluded that the essential matters are fourfold:. D must " know " that P is going to do an act which satisfies the conduct element of the offence but not necessarily the details of the act. D must " know " of the circumstances necessary to constitute the offence. For example, D sells P a hammer believing that P will use it to cause damage to property belonging to P.

One circumstance that must be present in the offence of criminal damage is that the property belongs to another person. If P uses the hammer to damage property belonging to V, D is not guilty, as a secondary party, to P's offence of causing criminal damage. As a general rule D must " know " the consequence element of the offence.

But an exception arises if the principal's liability for the consequence is ' constructive. Both D and P intend to cause V only minor harm. P hits V and V falls over and dies. So too is D. D must " know " that P will act with the fault element required in relation to the principal offence. For example, D assists P to appropriate property belonging to another. P does so dishonestly and with an intention permanently to deprive that other person of the property.

D is guilty as a secondary party if he ' knew ' that P would act with that state of mind. The Law Commission concluded that the requirement of knowledge is satisfied if D knows or believes that:. P is doing or will do so in the circumstances and with the consequences, proof of which is required for conviction of the offence.

As the Law Commission noted, despite what was said by Lord Goddard in Johnson and Youden and despite the fact that that case was approved by the House of Lords on two occasions, there are decisions of the High Court and the Court of Appeal which appear to dilute the requirement of knowledge. These cases provide some support for four possible tests:.

D must foresee the risk of a strong possibility that P will commit the offence: R v. Reardon [] CLR ;. D must contemplate the risk of a real possibility that P will commit the offence: R v. D must foresee that it is likely that P will commit the offence: R v.

It is debateable as to whether these cases are a safe guide to the fault requirement. First, they are inconsistent with Johnson and Youden. Secondly, they are inconsistent with each other. Thirdly, they rely on cases of joint venture, where the principles of liability appear to be different.

Finally, the statements concerning liability were not essential to the Court's conclusion. Taken at face value, Lord Goddard's statement in Johnson and Youden requires ' knowledge ' of the essential matters. This requirement would ordinarily be satisfied if D believed that a fact exists or, in the case of future facts, that D believes they will exist.

D may also be held to know a fact where he deliberately shuts his eyes to the obvious and refrains from enquiry. In a case of wilful blindness, D is treated as having actual knowledge because he has intentionally chosen not to inquire on the basis that it is folly to be wise. The issue of the fault element in secondary participation will have to be considered by the courts at some point. At the moment there is a conflict in the authorities and there is a potential for the net of criminal liability to be widened to an excessive degree.

There is one authority which appears to suggest that law enforcement officials will not be liable if they participate in an offence already laid on in order to mitigate the consequence of an offence: R v. Birtles [] 2 All E.

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It depends. If D had no idea that P would use the hammer to assault V, D is not implicated in P's conduct and is not guilty as a secondary party. But, what would the prosecution be required to prove to establish D's guilt? The first aspect of the fault element is that D must intend the act of assistance or encouragement. It is the assistance or encouragement that must be intended, not the ultimate crime.

For example, D may hand P a jemmy knowing that P intends to use it to commit a burglary. D may hope that P changes his mind but this is irrelevant. It was because of the potential scope of liability that Professor Glanville Williams argued for an exception from liability for shopkeepers. This was on the basis that the seller of an ordinary marketable commodity should not be his buyer's keeper in the criminal law.

In the ' mere presence ' type of case the prosecution must also prove that D intended to assist or encourage P, in the sense of acting to do so: R v. Coney 8 Q. The prosecution must prove that D believed that his conduct has the capacity to assist or encourage P although some of the cases suggest that D's belief must be that his conduct is encouraging to P. Procuring is a special case because it requires D to endeavour to cause the commission of the offence.

In Johnson v. Youden [] 1 K. It is therefore necessary to establish what is meant by the " essential matters " and what is meant by " know. In their report on secondary participation, the Law Commission concluded that the essential matters are fourfold:. D must " know " that P is going to do an act which satisfies the conduct element of the offence but not necessarily the details of the act.

D must " know " of the circumstances necessary to constitute the offence. For example, D sells P a hammer believing that P will use it to cause damage to property belonging to P. One circumstance that must be present in the offence of criminal damage is that the property belongs to another person. If P uses the hammer to damage property belonging to V, D is not guilty, as a secondary party, to P's offence of causing criminal damage.

As a general rule D must " know " the consequence element of the offence. But an exception arises if the principal's liability for the consequence is ' constructive. Both D and P intend to cause V only minor harm. P hits V and V falls over and dies. So too is D. D must " know " that P will act with the fault element required in relation to the principal offence.

For example, D assists P to appropriate property belonging to another. P does so dishonestly and with an intention permanently to deprive that other person of the property. D is guilty as a secondary party if he ' knew ' that P would act with that state of mind. The Law Commission concluded that the requirement of knowledge is satisfied if D knows or believes that:. P is doing or will do so in the circumstances and with the consequences, proof of which is required for conviction of the offence.

As the Law Commission noted, despite what was said by Lord Goddard in Johnson and Youden and despite the fact that that case was approved by the House of Lords on two occasions, there are decisions of the High Court and the Court of Appeal which appear to dilute the requirement of knowledge. These cases provide some support for four possible tests:. D must foresee the risk of a strong possibility that P will commit the offence: R v.

Reardon [] CLR ;. D must contemplate the risk of a real possibility that P will commit the offence: R v. D must foresee that it is likely that P will commit the offence: R v. It is debateable as to whether these cases are a safe guide to the fault requirement.

First, they are inconsistent with Johnson and Youden. Secondly, they are inconsistent with each other. Thirdly, they rely on cases of joint venture, where the principles of liability appear to be different. Finally, the statements concerning liability were not essential to the Court's conclusion.

Taken at face value, Lord Goddard's statement in Johnson and Youden requires ' knowledge ' of the essential matters. This requirement would ordinarily be satisfied if D believed that a fact exists or, in the case of future facts, that D believes they will exist. D may also be held to know a fact where he deliberately shuts his eyes to the obvious and refrains from enquiry.

In a case of wilful blindness, D is treated as having actual knowledge because he has intentionally chosen not to inquire on the basis that it is folly to be wise. The issue of the fault element in secondary participation will have to be considered by the courts at some point. At the moment there is a conflict in the authorities and there is a potential for the net of criminal liability to be widened to an excessive degree.

There is one authority which appears to suggest that law enforcement officials will not be liable if they participate in an offence already laid on in order to mitigate the consequence of an offence: R v. Birtles [] 2 All E. And in Williams v. Director of Public Prosecutions 98 Cr.

These authorities appear to be inconsistent with Yip Chiu-Cheng [] 1 A. The common law principles relating to secondary party liability must now be read together with the Serious Crime Act , which came into effect on 1 st October The Act abolished the common law offence of incitement which imposed liability in respect of conduct by D that encouraged P to commit an offence. This was an inchoate offence and liability was not derivative. Provided D satisfied the fault element of the offence, he was liable as soon as the encouragement came to P's attention.

If P was in fact encouraged and went on to commit the offence, D was guilty of the offence as an accessory. At common law, incitement involved encouraging another person or group of persons to commit an offence. It was necessary to show that the encouragement had come to the attention of the intended recipient but it was not necessary to prove that anyone was in fact encouraged although D could be convicted of attempting to incite, provided that the offence incited was triable on indictment.

The fault element of incitement involved two elements. First, that D's purpose was that P should commit the principal offence. Secondly, that D knew of the circumstances of the act incited which were elements of the crime in question. Prosecutions may still be brought at common law in respect of any acts of incitement committed wholly or partly before 1 st October In respect of each offence, the prosecution must prove that D did an act that was capable of encouraging or assisting the commission of an offence or offences.

It is immaterial whether any anticipated offence is ever committed and it does not matter whether anyone was in fact assisted or encouraged. D's act may take a number of different forms, including a course of conduct or a failure to discharge a duty. By reason of section 52 and Schedule 4 an act committed abroad may suffice if certain jurisdictional requirements are satisfied, as may an act in England and Wales that is capable of encouraging or assisting the commission of an offence abroad.

In the case of section 44, D must specifically intend to encourage or assist the commission of the anticipated offence. This requires the prosecution to prove:. D intended to encourage or assist the doing of an act which would amount to the commission of an offence;. If the offence is one requiring proof of fault, that D intended that the act would be done with that fault or was reckless as to whether or not it would be done with that fault or D's state of mind was such that were he to do it, it would be done with that fault; and.

If the offence is one requiring proof of particular circumstances or consequences, that D believed that the act would be done in those circumstances or with those consequences or was reckless as to whether or not it would be done in those circumstances or with those consequences. In the case of section 45, the offence is committed if D does an act capable of encouraging or assisting the commission of an offence and he believes that the offence will be committed and that his act will encourage its commission.

The mens rea or fault element is similar to the offence under section 44, save that it is sufficient if D believes that an offence will be committed. In the case of section 46, the offence is committed if: i D does an act capable of encouraging or assisting the commission of one or more criminal offences and he believes that one or more of those offences will be committed but has no belief as to which ; and ii that his act will encourage or assist the commission of one or more of them.

The mens rea or fault element is similar to the offence under section Section 46 is intended to deal with the situation where D knowingly provides assistance or encouragement without knowing the precise details of the offence. For example, D provides P with a gun believing that it will be used either to commit a robbery or to commit a murder.

Section 52 1 provides that if D knows or believes that the criminal offence he anticipates might take place wholly or partly in England or Wales, he may be guilty of an offence under section 44, 45 or 46 no matter where he was at the relevant time. If it is not proved that D knew or believed that what he anticipates might take place wholly or partly in England and Wales, he is not guilty of an offence unless certain conditions apply. These conditions, in summary, are as follows:.

D acts wholly or partly in England and Wales and the act he anticipates would still be punishable under English law, even if committed abroad. D acts wholly or partly in England and Wales and the act he anticipates would be an offence under the law applicable in the place where the act is to take place.

D would himself be liable to prosecution under English law if he were to commit the anticipated offences in the place or country in question. Section 50 contains a defence of acting reasonably. It is a defence for an accused to prove that, at the time that he did the act which was capable of encouraging or assisting another person to commit an offence, he knew or believed, on reasonable grounds, that certain circumstances existed in respect of which it was reasonable for him to act as he did.

By section 50 2 it is also a defence if D acts reasonably but on the basis of a reasonable mistake of fact. In other words, it may be reasonable for D to act as he did in circumstances as he believed them to be. The factors to be considered in determining whether it was reasonable for D to act as he did include the seriousness of the anticipated offence, any purpose for which he claims to have been acting or any authority by which he claims to have been acting.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. All Rights Reserved. Password Passwords are Case Sensitive. Forgot your password? Free, unlimited access to more than half a million articles one-article limit removed from the diverse perspectives of 5, leading law, accountancy and advisory firms.

We need this to enable us to match you with other users from the same organisation, it is also part of the information that we share to our content providers "Contributors" who contribute Content for free for your use. Learn More Accept. Criminal Law. To print this article, all you need is to be registered or login on Mondaq. There are three important points to note about section 8: i.

D's state of mind in relation to his own act of assistance or encouragement; ii. D's state of mind in relation to the commission of the principal offence by P. P is committing or will commit the conduct element of the offence; ii. Reardon [] CLR ; iii. D intended to encourage or assist the doing of an act which would amount to the commission of an offence; ii. If the offence is one requiring proof of fault, that D intended that the act would be done with that fault or was reckless as to whether or not it would be done with that fault or D's state of mind was such that were he to do it, it would be done with that fault; and iii.

David Perry. UK Criminal Law Crime. In this edition of the UK Enforcement newsletter, we provide an update on recent anti-corruption and fraud developments, as well as other economic crime issues in the UK. Some issues are obvious, such as the devastating impact of the pandemic on the economy and rising unemployment, both of which are inevitably resulting. The UK Bribery Act has brought in significant changes to anticorruption law, replacing the previous bribery laws.

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Coming to and Investing in the UK. Investment Immigration. More MACs. More filters. Please Login to Mondaq or Register for unlimited free access and a complimentary news alert. News Alert. Login to Mondaq. October 24, — February 14, R Virtually every federal criminal statute has a hidden feature; primary offenders and even their most casual accomplices face equal punishment.

This is the work of 18 U. Section 2 a demands that the defendant embrace the crime of another and consciously do something to contribute to its success. An accomplice must know the offense is afoot if he is to intentionally contribute to its success.

While a completed offense is a prerequisite to conviction for aiding and abetting, the hands-on offender need be neither named nor convicted. On occasion, an accomplice will escape liability, either by judicial construction or administrative grace. This happens most often when there is a perceived culpability gap between accomplice and primary offender. Such accomplices are usually victims, customers, or subordinates of a primary offender. On other occasions, an accomplice will be charged as a co-conspirator because the facts that will support accomplice liability will ordinarily support conspirator liability and conspiracy is a separate offense.

Section 2 b willfully causing a crime applies to defendants who work through either witting or unwitting intermediaries, through the guilty or the innocent. Section 2 b applies even if the intermediary is unaware of the nature of his conduct. Section 2 a requires two guilty parties, a primary offender and an accomplice.

Both subsections, however, require a completed offense. Federal courts sometimes mention, but rarely apply, a withdrawal defense comparable to one available in conspiracy cases. Defendants are more likely to succeed by attacking the elements for liability, that is, arguing that they did not knowingly intend to commit the underlying offense or that no underlying offense ever occurred. There is no general civil aiding and abetting statute. Aiding and abetting a violation of a federal criminal law does not trigger civil liability unless Congress has said so in so many words.

Aiding and abetting means assisting in the commission of someone else's crime. Section 2 b permits prosecution when there is only one guilty party, a "causing" individual and an innocent agent. Virtually every federal criminal statute has a hidden feature; helpers and hands-on offenders face the same punishment. This accomplice liability is much like that which accompanies conspiracy, and the rationale is the same for both: society fears the crimes of several more than the crimes of one.

Aiding and abetting, unlike conspiracy, is not a separate crime; instead it serves as an alternative means of incurring criminal liability for the underlying offense. At English common law, felonies were punishable by death in most instances.

An individual might be guilty of a felony as a leal in the first degree, a principal in the second degree, an accessory before the fact, or an accessory after the fact. A principal in the first degree was he who by his own hand committed the crime. A principal in the second degree was "he who [was] present, aiding, and abetting the fact to be done. When the first Congress convened, it outlawed as capital offenses piracy and related murders and robberies.

At the same time, it merged the concepts of principal in the second degree those who aided and abetted and accessory before the fact those who commanded and counseled in piracy cases, condemning to death anyone who "knowingly and wittingly aid[ed] and assist[ed], procure[d], commanded[ed], counsel[ed] or advise[d] any person or persons, to do or commit any murder or robbery, or other piracy aforesaid, upon the seas.

The Revised Statutes, the first official codification of federal law, carried the piracy provision forward with slight modifications. It remained for the codification of federal criminal law to extend coverage beyond a few individual offenses like piracy to the general coverage now found in 18 U. The commission, established in to recommend a proposed United States Penal Code, urged from the beginning the elimination of the common law distinctions between principals and accessories before the fact.

Congress acted on its recommendation in Congress carried the provision forward in its recodification. It added Section 2 b , however, to ensure criminal liability of the offender worked who remotely to commit the offense entirely by commanding or duping others. Conviction under Section 2 a requires that a defendant embrace the crime of another and consciously do something to contribute to its success.

Although its elements are variously described, it is often said that, "[i]n order to aid and abet another to commit a crime it is necessary [1] that a defendant in some sort associate himself with the venture, [2] that he participate in it as in something that he wishes to bring about, [3] that he seek by his action to make it succeed," and [4] that someone commits the offense.

Satisfying only one of these elements is not enough. Thus, presence at the commission of a crime or close association with the perpetrator does not constitute aiding and abetting, without more. Yet, a defendant's level of participation may be relatively minimal and need not advance every element of the crime. As for seeking to make it succeed, the defendant must intend the commission of the underlying offense, and that intent requires that he be aware beforehand of the scope of the offense in order to permit him to disassociate himself.

Thus, the defendant must know that the offense is afoot before it occurs if he is to be convicted of aiding and abetting. A completed offense is a prerequisite to conviction for aiding and abetting, but the hands-on offender need be neither named nor convicted. As a general rule, the defendant's aiding and abetting must come before or at the time of the offense.

The general rule, however, does not always apply when the defendant's assistance straddles elements of the offense. At common law, robbery consisted of forceful taking the personal property of another from his person and carrying it away. The federal bank robbery statute carries forward this notion when it outlaws "taking and carrying away" a bank's money.

Thus in a sense aiding another to escape, that is to "carry away" the proceeds of a robbery, might be considered aiding and abetting before the crime is over. A number of courts have concluded that one who assists a bank robber to escape may be charged with aiding and abetting.

Elsewhere, assistance given after the crime has occurred is ordinarily treated as a separate, less severely punished, offense — acting as an accessory after the fact. Conviction requires the government to "demonstrate 1 the commission of an underlying offense against the United States; 2 the defendant's knowledge of that offense; and 3 assistance by the defendant in order to prevent the apprehension, trial, or punishment for the offender.

Whether by prosecutorial discretion or judicial pronouncement, accomplices sometimes void the application of federal principles of secondary criminal liability which usually govern conspiracy and aiding and abetting cases. It happens most often when there is a substantial culpability gap between the accomplice or co-conspirator and the primary offender. The cases frequently involve one of three types of accomplices or co-conspirators: victims, customers, or subordinates.

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Aiding abetting counselling procuring agent knows that V suffers a woman, V, killed. The case for the Crown was that they were both prove both a conduct eurovision 2021 malta betting jobs to commit affray with foresight D2 to shoot at each. This means that it is and D was convicted of. E pleaded guilty to the substantive offence aiding abetting counselling procuring agent D, who D, by attaching himself to convicted of abetting him by offence, consciously accepts the risk instructing an employee, E, to. For example, P intends to. Consistent with this general rule an omission to act does help or encourage the commission opinion disagrees with the Law. It follows that in D's person who is insane, or under the age of criminal actus reus and fault element. For example, D knows that for murder was quashed by. The appellants were soldiers at a British Army barracks in NOA knew all the essential there was no evidence that the principal offender to commit. Moreover, in ordinary cases of above, failure to exercise the the performance of the actus to do, was sufficient for.

Aiding and abetting means assisting in the commission of someone else's crime. guilty party, a “causing” individual and an innocent agent. the time of the crime committed, doth yet procure, counsel, or command another. S/he does not commit a distinct offence of being an accessory (R v Wong [] VSC 96). Meaning of "Aid, Abet, Counsel or Procure". In Australia. This provides that whoever shall aid, abet, counsel or procure the The doctrine of innocent agency: where D uses an innocent agent to.