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Accessories and Abettors Act 1861

Why was it introduced (political/sociological context)?

All parties to a crime are accomplices, and the Accessories and Abettors Act 1861 was passed by Parliament to consolidate the various provisions contained within English Criminal Law relating to accomplices. The pre-existing provisions were transposed into a single Act with little or no changes to their phraseology, because the principle aim of the Act was to simplify the law and consolidate the previous statutory framework into one Act. The Act applies to indictable offences only, and only applies in England and Wales. The chief thrust of the Act is that an accomplice to an indictable offence shall be treated in the same way as if he had committed the offence himself. The theory underpinning imposing liability upon accomplices derives from the notion that accomplices should bear responsibility for their participation in criminal enterprises, even though the actus reus of the offence was conducted by another. The law on accessorial liability is viewed as necessary to protect the public, and effectively punish offences committed in groups where there may otherwise be evidential difficulties in establishing precisely who conducted the actus reus.

What was the aim of the Act (legal context)?

Sections 1 to 7 and 9 of the Act were repealed by the Criminal Law Act 1967 and section 11 was repealed by the Statute Law Revision Act 1892. The principal provision of the Act and the one which is still in force is to be found in s8 which provides that a defendant who aids, abets, counsels or procures the commission of an indictable offence is liable to be tried, indicted and punished as a principal offender. The previous law relating to accessorial liability had been found in the so-called Peel’s Acts which were the product of a failed attempt to codify the criminal law. The idea that all parties to a crime should face punishment and their liability for the commission of the offence is parasitic upon the actions of the principal did not amount to a change in the law, but the Act did amount to a consolidation of the previous statutes and a definitive clarification of the liability of all parties to criminal offences.

What main changes did it make to the law (key points)?

If a defendant is charged as an accessory the actus reus of the offence can be any one of the four elements contained within s8, namely, he must have aided, abetted, counselled or procured the substantive offence. In A-G’s Reference (No.1 of 1975) [1975] QB 773, each of the four elements was given a different meaning, and the court took the view that the individual words should be given their ordinary meaning.

Aiding involves giving help, support or assistance to the principal to commit the offence either prior to or at the time of its commission, and the aiding need not necessarily take place at the scene where the crime took place. The natural meaning of abetting suggests the accessory who incites, instigates or encourages the principal to commit the substantive offence and, in contrast to aiding, this can only be carried out at the scene of the crime. Counselling involves encouraging the commission of the principal offence, and this can include advising the principal regarding the commission of the crime, providing information to assist the commission, or supplying equipment to assist the commission of the crime. The accessory who counsels need not be present at the scene of the crime. Procuring means to set out to produce a particular state of affairs, and to take steps to endeavour to produce that state of affairs. There must be a causal link between the procurement and the actions of the principal, and the principal need not be aware of the procurer’s acts providing there is such a causal link.

The mens rea of an accessory requires that he had an intention to aid, abet, assist or procure, and he must have sufficient knowledge of the circumstances of the substantive offence. It is not necessary to prove the accessory wanted the substantive offence to be committed. He may merely be indifferent to the commission of the crime and still possess the requisite mens rea for liability as an accessory. The intention that must be shown is the realisation that the voluntary performance of the actus reus assists or encourages the principal in his course of conduct in committing the crime.

In addition, the accessory must have sufficient knowledge of the essential circumstances constituting the criminal offence in question. The accessory need not actually know the offence has been committed. He must have knowledge of the factual elements constituting the actus reus of the offence, but he need not be aware of the principal’s state of mind. The level of knowledge required need not be as to the precise minute details of the intended offence, but it is sufficient for the accessory to have knowledge that a particular type of offence was intended, and was later committed. He, therefore, will have the requisite mens rea where he contemplates the commission of one or more of a selection of offences, and he intentionally lends assistance to the principal offender, who goes on to commit any one or more of these offences.


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