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A person who assists in the perpetration of an indictable offence but is not the direct cause of the Actus Reus; the term 'accessory' is also used. The person responsible for the direct commission of the Actus Reus is usually referred to as the 'principal' (or 'principal offender', see: Principal (criminal)), everyone else is a 'secondary party'. An accomplice is defined as someone who 'aids, abets, counsels, or procures' the offence. It is not entirely clear whether these words should be construed as technical terms, or plain words. It appears that, when there was a legal distinction between 'accessories before the fact' (accomplices who assisted in preparation) and 'principals in the second degree (accomplices at the scene of the crime), then 'aiding and abetting' applied to the latter accomplice, while 'counselling and procuring' applied to the former. As there is no longer a distinction in law between these ways of being an accomplice, the four terms are normally used together on an indictment.
The general rule in English law is that accomplices are as liable for the offence as the principal offender. However, the principal and the accomplices are not necessarily equivalent. First, accomplices may not attract as servere a sentence as principals. Second, in offences of Strict liability the principal need not be blameworthy (that is, lack Mens Rea). But an accomplice must as a minimum have an intention to carry out the acts that assist the principal offender. The accomplice's Mens Rea is that relevant at the time of the assistance, not at the time of the offence (see below).
Liability as an accomplice applies to all offences unless specifically excluded by statute. Moreover, in some cases a statute will elevate the status of an accomplice to that of a principal offender, typically to ensure that a severe sentence is available. A notable example is Female circumcision; abetting the procedure is deemed to be equivalent to carrying it out.
This all seems quite straightforward but, in fact, there are a number of technical problems associated with the law of accomplice, so of which are discussed below.
- For there to be an accomplice to a crime, the crime must actually be committed. One is not an accomplice merely by encouraging ('counselling') the principal to commit the crime: this is Incitement. However, although it must be established that an offence has been committed, the principal need not be convicted of it for the accomplices to be convicted (see below).
- Although Incitement to commit an offence is itself an offence, whether or not the incitement is successful, it is not an offence to incite someone to be a secondary party. That is, it is not an offence to incite someone to aid and abet a crime, whether or not the crime is committed. If X incites Y to assist Z in committing a crime, X is not guilty of an offence, although Y and Z may be.
- There needs to be some form of causal relationship between the actions of the accomplice and the actions of the principal. If X encourages Y to assault Z, and Y does assault Z, but without knowing of X's encouragement, then X is probably not liable. This does not mean that X has to be directly responsible for the assault on Z to be liable as an accomplice, he merely has to influence X's decision how to act, or assist X to act in that way. However, as we shall see, it is not clear whether the causation that the accomplice must provide is to the principal's Mens Rea, or the Actus Reus of the offence (see below).
- One is not guilty as an accessory by being present while a crime is being committed, and doing nothing to prevent it, unless it can be shown that one had a duty to act. This is a particular case of the general principal that there ommission to act is not usually the Actus Reus of an offence. If a police constable takes no action while a man is kicked to death nearby, he will be liable as an accessory to murder. Particularly troublesome cases arise where it is known that at least one of a group of people present committed the offence, but it is impossible to say which one. In general, either all must be acquited or it must be shown that all were accessories to the (unknown) principal.
- The fact that the principal is acquited does not prevent accomplices being convicted. In fact, evidence of such an acquital is not even admissible as proof of the innocence of the accomplices. However, evidence of a conviction is admissible as evidence against them (s.74 of the Police and criminal evidence act (1984)). If, for example, X encourages Y to rape Z, and Y lacks the Mens Rea for rape (he does not know, for example, that he is committed rape, believing the woman to be consenting), he may be acquited. This does not prevent X from being convicted as an accomplice.
- If, in the previous example, Y does carry out the Actus Reus of rape, but lacks Mens Rea, then rape has, technically, not been committed. Or has it? Has X raped Z? What if X is a woman? A woman cannot be convicted of rape. So, if rape has not been committed, can X be guilty of being an accomplice to rape? This is difficult if there was, technically, no rape. So this means that X is guilty of being an accomplice to the Actus Reus of rape, not to rape.
- Although the acquital of the principal does not in itself absolve the accomplices from liability, it may do so if it is shown that there was no Actus Reus. If a bus conductor carelessly signals the driver to reverse, and a passer-by is run over and killed, the driver has not committed the Actus Reus of dangerous driving. He was carefully following the instructions of the conductor. If there was no Actus reus, there can be no accessory. However, in such a case the conductor may be liable for manslaughter as a principal.
- An accomplice may withdraw his services and thereby escape liability, but he may remain liable for conspiracy and incitement. If he does withdraw, his withdrawal must be communicated unequivocally to the principal. In addition, it must be before the commision of the offence, or any acts related to it that are 'more than preparatory'. Mere repentance is not enough; the Mens Rea of being an accomplice is relevant from the accomplice adopts that role, not when the substantive offence is committed.
- In general, there is nothing to prevent the victim of an offence being found to be an accessory to that offence. However, a statute that is created to protect a particular class of people from some offence, is usually construed as absolving victims from being accessories to the offence. Thus a girl aged under 13 cannot be convicted of aiding and abetting a man to have sexual intercourse with her although this is, of course, an offence.
- A police officer has, in theory, no greater authority to become an accomplice to crime that anyone else, however worthy the motive. An Entrapment operation may amount to conspiracy, incitement, or aiding and abetting an offence. The courts have historically been fairly lenient towards police officers charged with such offences.
It can be very difficult to distinguish between a Joint enterprise, where all offenders are jointly liable by means of sharing a criminal purpose, and the situation where a group of offenders are liable as accomplices for offences committed by others in the group. It is not clear that English law even has a distinct concept of 'joint enterprise', although some have argued that it has.
The term accomplice is not normally used to describe a person who assists an offender after the offence has been commited (see: Assistance after the offence). Nor is it used of a person who incites another to the offence (because the offence need not be committed for the offence of Incitement to be made out). In fact, the offences related to offering assistance after the offence (as defined in s.4 of the Criminal law act 1967 as similar to those of being an accomplice, but there are some important distinctions.
First, the 'assistant' can be guilty even if the principal is acquited, as is the case for an accomplice. However, an accomplice can be convicted if the principal is acquited, even if it is recognized that the principal is not guilty. In the trial of the assistant, the principal must be held to be guilty, even if he was acquited in his own trial. This means that, in the 'rape' example above, X could not be found guilty of assisting Y to evade arrest, because Y could not be shown to be guilty of rape. X could, however, be found guilty of being an accomplice to rape, even if the actual rapist were acquited.
Second, it is an offence to be an accomplice to an indictable offense, but the offenses of assistance after the offence refer to an Arrestable offence. While there is some overlap between these groups of offences, they are not identical.