Facts
- Bourne, a surgeon, performed an abortion on a young girl who had been raped.
- He claimed the procedure was necessary to protect the girl's health.
- The court was required to determine whether Bourne could be convicted as an accomplice to an illegal abortion, even if his actions were considered medically justified.
Issues
- Whether an individual may be convicted as an accomplice to a crime if the principal offender’s actions do not amount to a criminal offence.
- Whether the defence of necessity could justify the act of abortion, thereby negating criminal liability for both the surgeon and the principal offender.
- Whether liability as a secondary party is contingent on the act and intent of the principal offender.
Decision
- The court held that a person cannot be found guilty as an accomplice unless the principal offender’s conduct constitutes the act of a criminal offence.
- If the abortion was legally justified based on necessity, then no crime existed and secondary (accomplice) liability could not arise.
- The court accepted that if the jury found the abortion was genuinely necessary to protect health, no criminal act was committed by any party.
Legal Principles
- Secondary liability requires that the act constituting the crime be committed by the principal offender; otherwise, accomplice liability does not arise.
- The defence of necessity can render certain acts, such as medically required abortions, lawful, thereby negating the criminal character of the conduct.
- An individual cannot be punished for assisting acts which, although morally debated, do not legally constitute criminal offences.
Conclusion
R v Bourne (1952) 36 Cr App R 125 established that secondary liability depends on the principal offender committing a criminal act, and recognized necessity as a potential defence that negates both primary and secondary liability where actions are justified. This principle has shaped English law on accomplice liability, especially in contexts involving necessity defences.