Criminal law
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Criminal justice · Law

An accessory is a person who assists in the commission of a crime, but who does not actually participate in the commission of the crime as a joint principal. The distinction between an accessory and a principal is a question of fact and degree:

• The principal is the one whose acts or omissions, accompanied by the relevant mens rea, are the most immediate cause of the actus reus (Latin for "guilty act").
• If two or more people are directly responsible for the actus reus, they can be charged as joint principals (see common purpose). The test to distinguish a joint principal from an accessory is whether the defendant independently contributed to causing the actus reus rather than merely giving generalised and/or limited help and encouragement.

Elements

In some jurisdictions, an accessory is distinguished from an accomplice, who normally is present at the crime and participates in some way. An accessory must generally have knowledge that a crime is being, or will be committed. A person with such knowledge may become an accessory by helping or encouraging the criminal in some way, or simply by failing to report the crime to proper authority. The assistance to the criminal may be of any type, including emotional or financial assistance as well as physical assistance or concealment.

Relative severity of penalties

The punishment tariff for accessories varies in different jurisdictions, and has varied at different periods of history. In some times and places accessories have been subject to lesser penalties than principals (the persons who actually commit the crime). In others accessories are considered the same as principals in theory, although in a particular case an accessory may be treated less severely than a principal. In some times and places accessories before the fact have been treated differently from accessories after the fact. Common law traditionally considers an accessory just as guilty as the principal(s) in a crime, and subject to the same penalties. Separate and lesser punishments exist by statute in many jurisdictions.

Conspiracy

In some jurisdictions, a, although there are exceptions. In some situations, a charge of conspiracy can be made even if the primary offense is never committed, so long as the plan has been made, and at least one overt act towards the crime has been committed by at least one of the conspirators. Thus, an accessory before the fact will often, but not always, also be considered a conspirator. A conspirator must have been a party to the planning the crime, rather than merely becoming aware of the plan to commit it and then helping in some way.

A person who incites another to a crime will become a member of a conspiracy if agreement is reached, and may then be considered an accessory or a joint principal if the crime is eventually committed.

In the United States, a person who learns of the crime and gives some form of assistance before the crime is committed is known as an "accessory before the fact". A person who learns of the crime after it is committed and helps the criminal to conceal it, or aids the criminal in escaping, or simply fails to report the crime, is known as an "accessory after the fact". A person who does both is sometimes referred to as an "accessory before and after the fact", but this usage is less common.

Criminal facilitation

In some jurisdictions, criminal "facilitation" laws do not require that the primary crime be actually committed as a prerequisite for criminal liability. These include state statutes making it a crime to "provide" a person with "means or opportunity" to commit a crime, "believing it probable that he is rendering aid to a person who intends to commit a crime."[1]

Knowledge of the crime

To be convicted of an accessory charge, the accused must generally be proved to have had actual knowledge that a crime was going to be, or had been, committed. Furthermore, there must be proof that the accessory knew that his or her action, or inaction, was helping the criminals commit the crime, or evade detection, or escape. A person who unknowingly houses a person who has just committed a crime, for instance, may not be charged with an accessory offense because they did not have knowledge of the crime.

Exceptions

In many jurisdictions a person may not be charged as an accessory to a crime committed by his or her spouse. This is related to the traditional privilege not to testify against an accused spouse, and the older idea that a wife was completely subject to the orders of a husband, whether lawful or illegal.

In most jurisdictions an accessory cannot be tried before the principal is convicted, unless the accessory and principal are tried together, or unless the accessory consents to being tried first.

Usage

The term "accessory" derives from the English common law, and been inherited by those countries with a more or less Anglo-American legal system. The concept of complicity is, of course, common across different legal traditions. The specific terms accessory-before-the-fact and accessory-after-the-fact were used in England and the United States but are now more common in historical than in current usage.

The spelling accessary is occasionally used, but only in this legal sense.

History

The English legal authority William Blackstone, in his famous Commentaries, defined an accessory as "II. AN accessory is he who is not the chief actor in the offense, nor present at its performance, but is someway concerned therein, either before or after the fact committed." (book 4 chapter 3). He goes on to define an accessory-before-the-fact in these words: "As to the second point, who may be an accessory before the fact; Sir Matthew Hale12 defines him to be one, who being absent at the time of the crime committed, does yet procure, counsel, or command another to commit a crime. Herein absence is necessary to make him an accessory; for such procusence is necessary to make him an accessory; for if such procurer, or the like, be present, he is guilty of the crime as principal." and an accessory-after-the-fact as follows: "AN accessory after the fact may be, where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon.17 Therefore, to make an accessory ex post facto, it is in the first place requisite that he knows of the felony committed.18 In the next place, he must receive, relieve, comfort, or assist him. And, generally, any assistance whatever given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the assistor an accessory. As furnishing him with a horse to escape his pursuers, money or victuals to support him, a house or other shelter to conceal him, or open force and violence to rescue or protect him."

Specific laws

Canada

The Criminal Code provides that every one is a party to an offense who:

(b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing.

For these purposes, abetting means "to encourage or set on" and an abettor is "an instigator or setter on, one who promotes or procures a crime to be committed..."

France

Article 121-6 states that "the accomplice to the offence, in the meaning of article 121-7, is punishable as a perpetrator." Article 121-7 distinguishes, in its two paragraphs, complicity by aiding or abetting and complicity by instigation. It thus states that:

The accomplice to a felony or misdemeanor is the person who, by aiding or abetting, facilitates its preparation or commission. Any person who, by means of a gift, promise, threat, order or an abuse of authority or powers, provokes the commission of an offence or gives instructions to commit it, is also an accomplice. It follows from this article that in order to incur liability as an accomplice, that person must have participated in the unlawful act of the principal and must have intentded the principal to succeed. The theory of assumed criminality requires that the participation of an accomplice must be linked to an offence actually committed by a principal.

Norway

Each penal provision in the Norwegian criminal code specifies if it is criminal to aid and abet. Further, when the attempt is criminal, participating in that attempt is criminal.

England and Wales

The law governing complicity in criminal offences arises from the common law but was codified in s8 Accessories and Abettors Act 1861 as amended by s65(4) Criminal Law Act 1977, which states:

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 AG's Reference (No 1 of 1975) (1975) QB 773, Widgery CJ stated that the words in s8 should be given their ordinary meaning.

• The natural meaning of "to aid" is to "give help, support or assistance to" and it will generally although not necessarily take place at the scene of the crime. It is not necessary to prove that there was any agreement between the principal and the alleged accessory, nor is there a need to prove a causative link between the aid and the commission of the offence by the principal.
• The natural meaning of "to abet" is "to incite, instigate or encourage" and this can only be committed by an accessory who is present when the crime is committed. This does imply either an express or implied agreement between the parties although there is no need to prove any causative link between what the abettor did and the commission of the offence.
• "To counsel" is "to encourage" and most usually covers advice, information, encouragement or the supply of equipment before the commission of a crime. It implies agreement with the principal. In R v Clarkson (1971) 3 AER 344, the defendant merely watched while fellow soldiers raped a woman in their barracks in Germany. Counselling or advising must have an effect on the mind of the principal to constitute the necessary encouragement in fact, so Clarkson was found not guilty. No causative link between the counselling and the commission of the full offence is required so long as the offence actually committed was within the scope of the counselling. In R v Calhaem (1985) 2 AER 266, the defendant paid a private detective to murder a woman and was charged with counselling or procuring the murder. It was held that the offence actually committed must be within the scope of the counselling, i.e., the principal does not deliberately depart from the plan. The detective merely intended to frighten the woman but did actually hit her with a hammer. If, however, the accessory does not specify what offence is to be committed, but leaves it to the principal to decide what offence is to be committed, the accessory will be liable.
• "To procure" means "to produce by endeavour, by setting out to see that it happens and taking the appropriate steps to produce that happening". The principal can be entirely "innocent" of the procurer's acts so long as there is proof of a causal link between the procuring and the commission of the offence by the principal offender, e.g., as in AG’s Reference (No 1) (1975) 2 AER 684, spiking a drink procures a drunk-driving offence.

Scotland

In Scotland, under section 293 of the Criminal Procedure (Scotland) Act 1995, a person may be convicted of, and punished for, a contravention of any enactment, notwithstanding that he was guilty of such contravention as art and part only.

The significance of presence

Mere presence at the scene of a crime is not enough, even where the defendant remains at the scene to watch the crime being committed. In R v Coney (1882) 8 QBD 534, where a crowd watched an illegal prize fight, it was held that there must be active, not mere passive, encouragement. Hence, even though the fight would not have taken place without spectators prepared to bet on the outcome, the spectators were acquitted because their presence was accidental. It would have been different if they had attended at the scene of a crime by prior agreement because their mere presence would be an encouragement. Similarly, in R v J.F.Alford Transport Ltd (1997) 2 Cr. App. R. 326 it was held a reasonable inference that a company, knowing that its employees are acting illegally and deliberately doing nothing to prevent it from being repeated, actually intends to encourage the repetition. This will be a natural inference in any situation where the alleged accessory has the right to control what the principal is doing.