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KWAME NKRUMAH UNIVERSTIY
SCHOOL OF BUSINESS STUDIES
DEPARTMENT OF LAWS
STUDENT ID: 20245229
COURSE NAME: CRIMINAL LAW
COURSE CODE: LLB1921
ASSIGNMENT: ONE
LECTURE: MR.MUNDANDA
DATE GIVEN: 21ST OCTOBER 2024
DUE DATE: 21ST NOVEMBER
OUESTION: Why does the law insist on the distinction between “Aiding and abetting” and
counseling and procuring”? Carefully explain.
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INTRODUCTION
In criminal law, the principle of aiding and abetting as well as counseling and procuring, play
crucial roles in determing the liability of individuals who participate in criminal activities, as
noted by legal scholars, the law must differentiate between those who participate directly in the
commission of a crime and those who facilitate it through encouragement or advice. Dressler.
(2018)1. Cornell law school defines aiding and abetting as the means to assist someone in
committing or to encourage someone to commit a crime. It also goes further to explain the term
counsel and procure, which says that they are types of accomplice activities, Counseling refers to
encouraging, soliciting, or giving useful information to the person committing the crime,
procuring however, refers to assisting in getting the resources or creating the environment for
another to commit the crime.
MAINBODY
It is therefore the aim of this essay to explain why the law insist on the distinction between
“Aiding and Abetting” and “Counseling and Procuring”. The distinction between the above
stated terms is to establish liability for different types of involvement in a crime. It is not always
just the person that carriers out that actus reus of the offense that has been involved. Other
people can play a part in the crime alongside this person and they too can be liable for it in law,
despite not committing the crime and getting their hands dirty themselves. For example, a person
hiring a hit man to carry out their undesirable activities for them will not be absolved of any
liability of any liability for the crimes he carries out even though they themselves did not
physically commit said offences2 . When two or more persons take part in the commission of an
offense, they are regarded as jointly participating in effecting the commission of an offense.
They are described as parties to the offence. They may be some differences in degree only. In the
role each party played in bringing about the prohibited consequences.
1
Understanding criminal law 7th edition new providence,NJ:lexis Nexis
2
Teacher, Law , (November 2018).parties to crime lecture. Retrieved from
Http://WWW.lawteacher.net/lecture /criminal law/parties to crime
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According in section 21 of the penal code3 when an offense is committed, each of the
following persons is deemed to have taken part in committing the offense and to be guilty of the
offence, and may be charged with actually committing it, That is to say, every person who
actually does the act or makes the omission which constitutes the offence, every person who does
or omits to do any act for the purpose of enabling or aiding another person to commit the
offence, any person who aids or abets another person in committing the offence, any person who
counsels or procures any person to commit the offence. In the case of paragraph (a) of subsection
(1), such person may be charged either with committing the offence or with counseling or
procuring its commission. A conviction of counseling or procuring the commission of an offence
entails the same consequences in all respects as a conviction co committing the offence. Any
person who procures another to do or omit to do or omit to do any act such a nature that, if he
had himself done the act or made the omission, the act or omission would have constituted an
offence on his part is guilty of a offence of the same kind and liable to the same punishment, as if
he had himself done the act or made the omission, and he may be charged with doing the act or
making the omission.
In R v Grundy4 where X and Z were beating up S, a police officer on the stairs of an Indian
restaurant. T jointed in after few seconds, the officer suffered a broken nose and other injuries.
All there were charged. T was convicted of aiding that offence. The decision of the court was
that the whole of the injuries suffered by the officer amounted to grievous bodily harm. That T
was aiding the commission of the offence as soon as he joined in. That it was irrelevant at what
stage he joined in beating S. X and Z were perpetrators of the offence, or accessory to the
injuries other than the broken nose.
Penal code of the roles of Zambia chapter 87
4
[1989]crim.LR 502(CA)
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In the Attorney Generals Reference5 The accused had laced a friend’s drinks with alcohol
knowing the friend would shortly afterwards be driving home. The friend was convicted of
drunken driving. The accused was charged as an accomplice to this offence, but was acquitted
following a successful submission of no case to answer. The trail judge had taken the view that
there had to be evidence of some agreement between the accomplice and the principal.
Lord Widgery CJ held that the offence had been procured because, unknown to the driver and
without his collaboration, he had been put in a position in which he had committed an offence
which he never would have committed otherwise. There was a case to answer and the trial judge
should have directed the jury that an offence is committed if it is shown beyond reasonable doubt
that the accused knew that the ordinary and natural result of the added alcohol would be to bring
the friend above the prescribed blood/alcohol limit.
In another case promulgated in the case of the State v Elberhart6 in this case, Elberhart was
charged with counseling and procuring a burglary. The court found that Elberhart provided
specific advice and encouragement to the principal offender, which was sufficient for a
conviction. This case highlighted how counseling could lead to liability even when the counselor
was not present at the scene.
Another case which constitutes the act of aiding and abetting is that of Commonwealth v
McCarthy7 in this Massachusetts case, the defendant was charged with aiding and abetting a
robbery. The court determined that McCarthy’s actions prior to the robbery, which involved
planning and encouragement, constituted sufficient evidence of counseling, as he was not present
during the actual commission of the crime.
(No 1 of 1975)[1975] QB 773
6
[2011]
7
[2011]
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Section 44 of the Magistrate court8 provides; A person who aids, abets, counsel or procure the
commission by another person of a summary offence shall be guilty of the like offence and may
be tried (whether or not he is charged as a principal) either by a court having jurisdiction to try
that other person or by a court having virtue of his own offence jurisdiction to try him. Any
offence consisting in aiding, abetting, counseling or procuring the commission of an offence
triable either (other than an offence listed in schedule 1 to this act ) Shall by virtue of this
subsection be triable either way.
In order to be charged and convicted as an accessory, an accused person must have given
assistance or encouragement (let alone procure) in the commission of an offence. Assistance or
encouragement may take different forms. R v Clarkson9 the accused was charged with aiding and
abetting three offences of rape. The evidence was that the accused, who had been drinking
heavily, heard a disturbance in a room, they went in and stood watching whilst a woman was
raped, they gave neither physical assistance nor verbal encouragement, they were convicted and
they appealed. It has held that encouragement does of necessity amount to aiding and abetting, it
may be intentional or unintentional, a man may be unwrittingly encourage another in fact by his
presence, by misinterpreted words, gestures, or by his silence, or non-interference or he may
encourage intentionally be expressions, or gestures or actions intended to signify approval.
It is therefore essential to note the different roles that people can play in the commission of
an offence, however they can be broken down as follows
The principal offender
Joint principal
Secondary parties
The principal offender is the person who carries out the actus reus, or in lay term , they
main perpetrator of the offence, on the other hand joint principal contributes to the actus reus by
committing their own independence.
8
Act 1980
9
[1971]1 LR 1402
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According to section 22 of the penal code10 when two or more persons form a common
intention to prosecute an unlawful purpose in conjunction with one another , and in the
prosecution of such purpose an offence is committed of such nature that its commission was a
probable consequence of prosecution of such purpose, each of them is deemed to have
committed the offence. Furthermore the secondary parties are more commonly described as
accomplice or accessories to the crime, they are people who help or encourage the principal
offender. The effect of these provisions is that the person who aids or assist the principal
offender in the commission of the offence will incur the same liability as the principal offender,
as if they had committed the offence themselves.
The imposition of secondary liability is very useful to the prosecution in cases of gang crimes
where the question of “who did it” is not always easy to establish. For example, in a mass attack
it is not always possible to establish who in the group dealt blows to the victim, let alone who
dealt the final blow. Under the above provisions it is possible for all the members of the group to
be treated as equally liable for the offence. This has given rise to notable prosecutions over the
years, including those of the offenders in the Stephen Lawrence murder, David Norris and Gary
Dobson who were both convicted for racially motivated stabbing carried out by their gang. The
case that explains the secondary principal is that of R v Craig and Bently11 this is a famous and
tragic example of the secondary parties provision in operation. The two defendants broke into a
Croydon warehouse. Craig was armed a pistol, ammunition and a knife and Bently had a knife.
Bently was said to suffer from severe learning difficulties and didn’t really understand what was
happening. Police were called to the scene and an armed stand-off took place with Craig pointing
the pistol at one of the policeman, a PC Sidney Miles. Bently shouted over to Craig “let him have
it” and Craig according shot PC Miles, killing him. Both men were convicted for the murder,
Bently as an accomplice for telling Craig to shoot the policeman. Craig was underage and was
incarcerated for the offence, but Bently was an adult and was hanged for his part in the crime. It
was contended however by Bently that when he shouted “let him have it ” he was actually telling
Craig to give up the weapon and surrender it to the police, not to shoot them. He was given a
post humorous pardon on this basis, but the legal principal as to liability for secondary parties
remains to this day.
10
Penal of Zambia chapter 87
11
[1952]The Times, 10 December.
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The extent of the involvement of each individuals will be considered in the sentencing but the
liability will be the same. As the secondary party shall be tried and punished as the principal
offender, it is unnecessary for the prosecution to establish and distinguish where each party
involved was the principal offender or the secondary as long as it is definite that they were one or
the other. Another case of R v Galliano12 The defendant was accused of the murder of his wife.
There was definitive evidence that he had either killed her himself or employed a killer to carry
out the act for him but it was not certain as to which. This was irrelevant as applying the
provision correctly, it was unnecessary to distinguish the exact nature of his involvement as long
as it was established that he was involved to a certain extent. The defendant was accordingly
convicted. The two provision set out in relation to the secondary party liability are very similar
so for the purpose of understanding the principal behind them the will be on the section 8
provision. However there is an exception to the requirement that a principal offence is
committed for the secondary liability to occur and that arises in relation to procuring. In these
instances, no offence needs to be complete as the would be principal offender will lack the Mens
rea for the offence, but so long as the Actus reus is established the secondary liability can arise,
case in focus for R v Milward13 The defendant instructed his employee to take a vehicle which
the defendant knew to be in very poor and dangerous condition, out driving on a public road. The
employee did so with no knowledge of the vehicle’s condition and was subsequently involved in
a fatal collision with another car. The defendant and the employee were charged with causing
death by reckless driving, but the employee was acquitted in absence of the Mens Rea due to his
lack of knowledge of the vehicle’s state. Regardless of there being no principal offence
committed the defendant remained liable for the secondary offence.
Section 8 of the 1861 Act provides for liability to arise in 4 separate instances:
1. Where an offence is aided
2. Where an offence is abetted
3. Where an offence is counselled
4. Where an offence is procured
12
[1996]unreported
13
[1994] crim LR 527
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It was previously thought that these words were interchangeable however Attorney General’s
Reference14 clarified that this instead creates four individual manners or behaviour in which this
element of the Actus Reus may be satisfied. Any one of these elements is sufficient and it is not
necessary to show all four occurred. Each word shall be afforded with is ordinary and natural
meaning. The definitions have been set out below in order to gage an exact understanding of the
behaviour that encompassed. Whether the defender has behaved in a way that amounts to any
one of these behaviours is a question of fact for the jury and there is no definitive legal test
established to assist. It has been established however in R v Gnango15 That provoking is not the
same as encouraging. If a defendant throws a punch it might provoke his victim to throw one in
return but this will not without more amount to an encouragement to throw the punch.
Due to the absence of a Good Samaritan requirement in English law, simply spectating a
crime and failing to report it is insufficient any secondary liability.
The court of appeal in the Attorney General’s reference 16 held that if four words are employed
here ‘aid, abet, counsel, or procure’ the probability of the accessory is not only dependent on the
existence of a casual link between the accessory’s and the principal’s act. Promulgated in the
case of ALIMON NJOVU AND FELIX NJOVU V THE PEOPLE17 the appellants were
convicted of murder, the particulars of the offence being that they, together with others, on the
17th march 1984 at Lusaka, jointly and whilst acting together, did murder Emmanuel Mulenshi.
The prosecution evidence was to the effect that both appellants took part in concerted robbery
and stone breaking at Vintage Zambia Limited and there they murdered the night watchman and
stole a quantity of goods including in particular one welding machine. The evidence against both
appellants was that they were in possession of the welding machine after the robbery and in
connection with a charge of murder both appellants against the connection made statements to
the police to the effect that they were present when the night watchman was assaulted, in view of
what we have said the appeals of the both appellants against the conviction of the murder are
allowed.
14
Number 1 of 1975
15
[2011]UKSC 59
16
(No. 1 of 1975)(1975)QB773at 779
17
[1988]ZRS SUPREME COURT
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According to Smith and Hogan18, aiding the commission of an offence requires actual
assistance, it does not require consensus nor causation, whereas abetting or counseling,
consensus is implied, but a causation is not. In procuring; it implies causation but it may not
imply consensus. In the case of MOHAN V R19 D was quarrelling with M, when R, who is D’s
father, run out of his house and attacked M with cutlass. While R was chasing M, D went off and
returned with another cutlass. Both struck many blows at M, who collapsed and later died. He
was found to be wounded in the back and in the leg. It appeared that the death was caused only
by the leg wound. D and R were convicted of murder and appealed on ground that, as there was
np evidence of pre-arranged plan to attack M, the crown must show. Which of the struck the fatal
blow. Appeal dismissed.
CONCLUSION
In conclusion the law insists on the distinction between “aiding and abetting” and “counseling
and procuring” to ensure that individuals are charged in accordance with their actual
participation and intent in the commission of crimes. This difference is vital for fair legal
proceeding and appropriate sentencing, reflecting the principal of justice and accountability in
criminal law.
18
Criminal law 17th ed
19
[1967]2AC PRIVY COUNCIL
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REFERENCES
1. Dressler.(2018) Understanding criminal law 7th edition new providence,NJ:lexis Nexis
2. According to Smith and Hogan Criminal law 17th ed
WEBSITE
3. Teacher, Law , (November 2018).parties to crime lecture. Retrieved from
Http://WWW.lawteacher.net/lecture /criminal law/parties to crime
STATUES
4. Penal code of the roles of Zambia chapter 87
5. Section 44 of the Magistrate court Act 1980
CASES
6. In R v Grundy [1989]crim.LR 502(CA)
7. the Attorney Generals Reference (No 1 of 1975)[1975] QB 773
8. State v Elberhart [2011]
9. Commonwealth v McCarthy [2011]
10. R v Clarkson [1971]1 LR 1402
11. R v Craig and Bently [1952]The Times, 10 December.
12. R v Galliano [1996]unreported
13. R v Milward [1994] crim LR 527
14. R v Gnang [2011]UKSC 59
15. ALIMON NJOVU AND FELIX NJOVU V THE PEOPLE [1988]ZRS SUPREME
COURT
16. MOHAN V R [1967]2AC PRIVY COUNCIL
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