Accessories & Abettors Act 1861: Key Rules, Cases and Practi...

Introduction

The Accessories and Abettors Act 1861 (section 8) sets out when someone who assists or encourages a crime is liable as though they were the main offender. It covers four forms of participation: aiding, abetting, counselling, and procuring. In short, if a principal offence is committed by someone, those who helped or encouraged it can be tried, indicted and punished as principals.

Although section 8 refers to indictable offences, equivalent liability for summary offences is provided by section 44 of the Magistrates’ Courts Act 1980. Where a crime has not yet been committed (or may never be committed), prosecutors may consider the separate inchoate offences under the Serious Crime Act 2007 (ss 44–46) for encouraging or assisting crime.

This guide explains the core rules, the mental element required, leading cases, and how to apply the law in problem questions and practice.

What You'll Learn

• What section 8 Accessories and Abettors Act 1861 does and when it applies
• The ordinary meanings of aiding, abetting, counselling, and procuring
• The mental element: intention to assist or encourage, and knowledge of key facts
• Why procuring requires causation, but counselling does not
• How cases like Attorney-General’s Reference (No 1 of 1975), Calhaem, Alford Transport, and Jogee shape the law
• Practical steps for charging, proof, and common pitfalls (including withdrawal and “mere presence”)
• When to use the Serious Crime Act 2007 in place of, or alongside, section 8

Core Concepts

Section 8 AAA 1861: effect and scope

• Wording and effect: Anyone who aids, abets, counsels, or procures the commission of an indictable offence “shall be liable to be tried, indicted and punished as a principal offender.”
• A completed offence is required: There must be a principal offence committed by someone (though that person need not be identified or convicted).
• Tried as a principal: The accessory is charged and sentenced as if they were the principal, but the prosecution still needs to prove the accessorial conduct and mental element.
• Summary offences: For non‑indictable offences, section 44 of the Magistrates’ Courts Act 1980 provides equivalent liability.
• Inchoate alternatives: If no principal offence is committed (or it cannot be proved), consider the Serious Crime Act 2007 offences of encouraging or assisting crime.

Meanings of aiding, abetting, counselling, and procuring

Use ordinary language, supported by case law:

• Aiding: Giving help or support before or during the offence (for example, supplying tools or acting as a lookout). It need not occur at the scene, but the help must be real (not trivial or wholly ineffective).
• Abetting: Encouraging at the scene (words, gestures, or conduct that spur the principal on). Mere presence is not enough unless it is intended and understood as encouragement.
• Counselling: Urging, advising, or instructing the commission of the offence. It can occur well before the offence (for example, planning or urging the crime).
• Procuring: Bringing about the offence by causation. There must be a causal link between the procurer’s act and the principal offence, even if the principal is unaware.

Key authorities:

• Attorney-General’s Reference (No 1 of 1975) [1975] QB 773: spiking a driver’s drink “procured” the offence of driving with excess alcohol because it caused it.
• R v Calhaem [1985] QB 808: for counselling, a direct causal link is not required, so long as the offence committed is within the scope of the counsel.

Mental element: intention and knowledge

• Intention to assist or encourage: The accessory must intend that their conduct will help or encourage the principal to commit the offence. A desire for the offence to occur is not required.
• Knowledge of essential facts: The accessory must be aware of the key elements of the principal’s actus reus (for example, the type of weapon, the target, or the essential circumstances), though precise detail is not necessary.
• Foresight after Jogee: R v Jogee [2016] UKSC 8 confirms that foresight of what the principal might do is evidence from which a jury may infer intention, but foresight alone is not intention. For murder, the accessory must intend to assist or encourage the principal to kill or cause really serious harm.
• Alford Transport: R v JF Alford Transport Ltd; Alford; Payne [1997] supports that the accessory’s conscious decision to assist or encourage is key; indifference or recklessness will not usually suffice.

Causation, scope, and withdrawal

• Procuring requires causation: The procurer’s act must bring about the offence (Attorney‑General’s Reference (No 1 of 1975)).
• Counselling does not require a direct causal link: It is enough that the offence committed was within the scope of the counsel (Calhaem).
• Scope and escalation: If the principal commits a more serious offence than planned, liability depends on what the accessory intended to assist or encourage. After Jogee, mere foresight of possible escalation is not enough.
• Withdrawal: An accessory can avoid liability by an effective and timely withdrawal (for example, clearly countermanding prior encouragement and, where possible, taking reasonable steps to neutralise earlier assistance). Simply walking away is usually insufficient if earlier encouragement or assistance has already had effect.

Key Examples or Case Studies

• Attorney-General’s Reference (No 1 of 1975) [1975] QB 773

  • Facts: The defendant secretly added alcohol to a motorist’s non‑alcoholic drink; the motorist later drove over the limit.
  • Held: The defendant “procured” the offence because his act caused it. The principal need not be aware of the procurer’s conduct.
  • Use: Shows procuring requires a causal link.

• R v Calhaem [1985] QB 808

  • Facts: D counselled X to kill the victim. X killed, but not exactly as counselled.
  • Held: Counselling does not require a direct causal connection; it is enough that the offence falls within the counsel.
  • Use: Reinforces the breadth of counselling and limits arguments about “no causal link.”

• R v JF Alford Transport Ltd; Alford; Payne [1997] 2 Cr App R 326

  • Point: The accessory must intend to assist or encourage the principal’s offence; a wish for the offence to occur is not essential, but conscious assistance or encouragement is.
  • Use: Clarifies the mental element, including corporate liability possibilities.

• R v Jogee; Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7

  • Point: For secondary liability, foresight of what the principal may do is evidence from which intention can be inferred, but is not the legal test. Intention to assist or encourage the crime charged is required.
  • Use: Adjusts prior “joint enterprise” doctrine, especially for homicide.

• Clarkson (1971) 55 Cr App R 445

  • Facts: Mere presence at a rape.
  • Held: Mere presence, even with awareness, is not enough; there must be proof of encouragement or assistance.
  • Use: Helpful where bystanders or companions are charged without clear acts of assistance or encouragement.

• Hypothetical based on robbery and death

  • Scenario: Two plan a robbery. One threatens a victim known to be vulnerable; the victim dies. The other participant intended robbery and threats, but not death.
  • Application: Accessory liability for robbery is likely if they intended to assist or encourage it. Murder requires intention to assist or encourage the killing or serious harm (post‑Jogee). Manslaughter may still arise depending on foresight of harm and participation in an unlawful act carrying risk of harm.

Practical Applications

• Proving the principal offence

  • Confirm that a principal offence was committed by someone (even if unidentified). Without it, consider Serious Crime Act 2007 offences instead.

• Identifying assistance or encouragement

  • Look for concrete acts: supplying tools or information, acting as lookout, driving to and from the scene, issuing instructions, or purposeful presence that the principal is aware of.
  • Avoid over‑reliance on mere association or presence.

• Choosing the correct label

  • Aiding and abetting cover assistance and encouragement; counselling often concerns pre‑offence urging or advice; procuring requires causation.
  • Choose the strongest label supported by evidence; the court can consider them collectively under section 8.

• Establishing the mental element

  • Show intention to assist or encourage the specific offence type and awareness of key facts (e.g., that a real weapon would be used).
  • After Jogee, do not treat foresight alone as intention; use it as evidence.

• Handling escalation or different outcomes

  • If the principal commits a different offence, check whether the accessory intended to assist or encourage conduct of that nature.
  • For homicide, distinguish murder (intent to assist or encourage killing or serious harm) from manslaughter (participation in an unlawful act with risk of harm).

• Dealing with procuring vs counselling

  • For procuring, prove a causal link (e.g., tampering with brakes, spiking a drink).
  • For counselling, prove that the offence fell within the counsel; a direct causal chain is not required.

• Withdrawal

  • To be effective: communicate withdrawal clearly and in time; countermand prior encouragement; take reasonable steps to neutralise assistance where feasible.
  • Evidence of last‑minute withdrawal is often weak unless decisive action is shown.

• Charging alternatives and corporate cases

  • Consider Serious Crime Act 2007 charges where the principal offence is uncertain or incomplete.
  • Companies can be accessories if directing minds intend to assist or encourage and the company acts through them.

Summary Checklist

• Section 8 AAA 1861 makes accessories liable as principals for completed offences
• Use ordinary meanings: aid, abet, counsel, procure
• Procuring needs causation; counselling does not require a direct causal link
• Intention to assist or encourage is required; knowledge of key facts must be shown
• Post‑Jogee: foresight is evidence of intention, not the legal test
• Mere presence is not enough; look for purposeful assistance or encouragement
• Consider withdrawal: timely and effective countermeasures are needed
• For summary offences, rely on Magistrates’ Courts Act 1980 s44
• If the offence is not completed, consider Serious Crime Act 2007 ss44–46
• Distinguish murder from manslaughter in secondary liability analyses

Quick Reference