Accessory (legal term)
Encyclopedia
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:
s, 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.
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.
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.
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.
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.
, 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:
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..."
is criminal, participating in that attempt is criminal.
(as amended by s.65(4) Criminal Law Act 1977), which states:
offence). The defendant must intend to do the acts which he knows will assist or encourage the principal to commit a crime of a certain type. In R v Bainbridge (1960) 1 QB 129 the defendant supplied cutting equipment not knowing exactly what crime was going to be committed, but was convicted because the equipment supplied was used in the ordinary way but for a criminal purpose. The accomplice must also know of all the essential matters that make the act a crime, but need not know that the act would amount to a crime because ignorantia juris non excusat
. In National Coal Board v Gamble (1959) 1 QB 11 the operator of a weighbridge was indifferent as to whether the principal committed the offence which is generally not a sufficient mens rea, but the NCB was convicted because the act of the employee was an act of sale (see vicarious liability
).
Gillick v West Norfolk and Wisbech Area Health Authority (1986) AC 112 is an example of a type of case where the uncertainties of the precise meaning of intention
effectively confer a sometimes welcome discretion on whether to impose responsibility. That case concerned the question of whether a doctor giving contraceptive advice or treatment to a girl under the age of 16 could be liable as an accessory to a subsequent offence of unlawful sexual intercourse committed by the girl's sexual partner. The Lords held that generally this would not be the case (the action was a civil one for a declaration) since the doctor would lack the necessary intention (even though he realised that his actions would facilitate the intercourse). One rationale for the decision would be that a jury would not infer intention in such circumstances if they thought that the doctor was acting in what he considered to be the girl's best interests.
, 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.
A person may be convicted of aiding and abetting any act made criminal under the code. The elements of aiding and abetting are, generally: guilty knowledge on the part of the accused ( the mens rea); the commission of an offense by someone; and the defendant assisted or participated in the commission of the offense (the actus reus).
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
, but who does not actually participate in the commission of the crime as a joint principal. The distinction between an accessory and a principal
Principal (criminal law)
Under criminal law, a principal is any actor who is primarily responsible for a criminal offense. Such an actor is distinguished from others who may also be subject to criminal liability as accomplices, accessories or conspirators....
is a question of fact and degree:
- The principal is the one whose acts or omissions, accompanied by the relevant mens reaMens reaMens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
(LatinLatinLatin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for "guilty mind"), are the most immediate cause of the actus reusActus reusActus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
(LatinLatinLatin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for "guilty act"). - If two or more people are directly responsible for the actus reus, they can be charged as joint principals (see common purposeCommon purposeThe doctrine of common purpose, common design or joint enterprise is a legal doctrine in some common law jurisdictions which imputes criminal liability on the participants to a criminal enterprise for all that results from that enterprise...
). 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 jurisdictionJurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s, an accessory is distinguished from an accomplice
Accomplice
At law, an accomplice is a person who actively participates in the commission of a crime, even though they take no part in the actual criminal offense. For example, in a bank robbery, the person who points the gun at the teller and asks for the money is guilty of armed robbery...
, 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 lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
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 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
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, 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."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 EnglishEngland
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, 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
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
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 BlackstoneWilliam Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
, in his famous Commentaries
Commentaries on the Laws of England
The Commentaries on the Laws of England are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1769...
, 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:
Canada
The Criminal Code provides that every one is a party to an offence and receive the same charge who: does or omits to do anything for the purpose of aiding any person to commit it; or 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 attemptAttempt
Attempt was originally an offence under the common law of England.Attempt crimes are crimes where the defendant's actions have the form of the actual enaction of the crime itself: the actions must go beyond mere preparation....
is criminal, participating in that attempt is criminal.
England and Wales
The law governing complicity in criminal offences originally arose from the common law, but was codified in section 8 of the Accessories and Abettors Act 1861Accessories and Abettors Act 1861
The Accessories and Abettors Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland . It consolidated provisions in English criminal law related to accomplices from a number of earlier statutes into a single Act...
(as amended by s.65(4) Criminal Law Act 1977), which states:
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.Mens rea
A mens rea is required even when it is not required for the principal offender (for example, when the principal commits a strict liabilityStrict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
offence). The defendant must intend to do the acts which he knows will assist or encourage the principal to commit a crime of a certain type. In R v Bainbridge (1960) 1 QB 129 the defendant supplied cutting equipment not knowing exactly what crime was going to be committed, but was convicted because the equipment supplied was used in the ordinary way but for a criminal purpose. The accomplice must also know of all the essential matters that make the act a crime, but need not know that the act would amount to a crime because ignorantia juris non excusat
Ignorantia juris non excusat
Ignorantia juris non excusat or ignorantia legis neminem excusat is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content...
. In National Coal Board v Gamble (1959) 1 QB 11 the operator of a weighbridge was indifferent as to whether the principal committed the offence which is generally not a sufficient mens rea, but the NCB was convicted because the act of the employee was an act of sale (see vicarious liability
Vicarious liability
Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability...
).
Gillick v West Norfolk and Wisbech Area Health Authority (1986) AC 112 is an example of a type of case where the uncertainties of the precise meaning of intention
Intention in English law
In English criminal law, intention is one of the types of mens rea that, when accompanied by an actus reus , constitutes a crime.-The standard definitions:...
effectively confer a sometimes welcome discretion on whether to impose responsibility. That case concerned the question of whether a doctor giving contraceptive advice or treatment to a girl under the age of 16 could be liable as an accessory to a subsequent offence of unlawful sexual intercourse committed by the girl's sexual partner. The Lords held that generally this would not be the case (the action was a civil one for a declaration) since the doctor would lack the necessary intention (even though he realised that his actions would facilitate the intercourse). One rationale for the decision would be that a jury would not infer intention in such circumstances if they thought that the doctor was acting in what he considered to be the girl's best interests.
Scotland
In ScotlandScotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, 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
Art and part
Art and part is a term used in Scots law to denote the aiding or abetting in the perpetration of a crime, or being an accessory before or at the perpetration of the crime...
only.
United States
The U.S. criminal code makes aiding and abetting a federal crime itself a crime: Whoever aids, abets, counsels, commands, induces or procures the commission of an offense, is punishable as a principal. Whoever willfully causes an act to be done which if directly performed by him or another would be an offense, is punishable as a principal.A person may be convicted of aiding and abetting any act made criminal under the code. The elements of aiding and abetting are, generally: guilty knowledge on the part of the accused ( the mens rea); the commission of an offense by someone; and the defendant assisted or participated in the commission of the offense (the actus reus).