Secondary Offenders

The variation on the intent of the primary party outside the scope of the plan will absolve the secondary party of guilt of the crime - Justin Santiago

Secondary offenders are parties who aids, abets, counsels or procures the commission of an indictable offence by the principal offender and the the Accessories and Abettors Act 1861 states that a secondary party shall be tried, indicted and punished as a principal offender. A can be charged for all the crimes against C that B has been charged with provided that the three criteria for liability are fulfilled– the offence must be committed, there must be aiding, abetting, counseling or procuring and that A must know that he is aiding, abetting, counseling or procuring the offence : R v Mahmud. It may not be necessary for the prosecution to prove that A intended that the crime be committed simply foreseeability that it would be committed (i.e. recklessness may suffice) : R v Rook. Furthermore there must be some form of causal connection between the assistance and the offence i.e. that A’s assistance was connected to the various offences : R v Bryce.

It would be very difficult for the secondary party to absolve himself of guilt as the law is not accommodating to secondary offenders even where the crime is outside the original plan. It is sufficient that the secondary party foresaw the type of crime to be committed, not necessarily the specific crime that was committed. It is also sufficient to know of the intention of the principal offender and the knowledge of a weapon or choice of weapon would be immaterial.

According to AG’s Reference No. 1 of 1975, the actus reus elements aid, abet, counsel and procure takes on the ordinary meaning of the words and that all required some form of causal connection between the assistance and the offence : R v Bryce. In this case it was also decided that there need not be demonstrated that the acts of assistance were performed at a time when intention was formed. The mes rea of secondary parties is a combination of intention and knowledge and as summed up in R v Rook consists of two elements : intentionally doing an act knowing it is capable of assisting, encouraging or procuring the principal and at the time of the act of assisting, encouraging or procuring contemplated or foresaw the commission of the offence.

The variation of intent of the primary party falls within the second requirement which is foresight or contemplation of the offence. It has been decided that it is not necessary for the secondary party to have foreseen or contemplated the precise crime intended, what is necessary is only the type of offence committed that must be foreseen or contemplated : R v Bainbridge.

In DPP for Northern Ireland v Maxwell this principal was extended further to include the foresight or contemplation of one of a range of possible offences. In R v Hyde and Others it was sufficient that the secondary party realizes (without necessarily agreeing) the commission of the offence. In R v Powell knowledge of the presence of a weapon that was capable of committing murder was sufficient to convict the secondary party as an accessory to murder. In R v O’Flaherty, obiter that it was immaterial the means by which death is achieved, what is material is the intention to kill or cause grievous bodily harm.

To absolve onself of the crime, the secondary party has to give timely and unequivocal notice to others that his is not going to be involved. It is not enough for an accessory to inform other that he is not takeing part, it must be clear that he is disassociating himself from the enterprise : R v Becerra.