Parties to an offence: Principal offenders

1. Introduction
2. Objectives
3. Main Content

• Parties to an offence
• Primary offender
• Aider and Abettor
• Persons who counsel or procure
• Innocent Agency

4. Conclusion
5. Summary
6. Tutor Marked Assignment
7. References

Introduction:

An offence may be planned, hatched and executed by one person against another. It may also involve a member or group of people, a gang, either acting differently at the same or at different times in the course of one transaction or acting in concert with one another in committing the offence. The members of the group or gang who get involved in one way  or the other may undertake different roles, assume different levels or degree of involvement and hence merit differential treatment. The way  the criminal law has classified the degrees of involvement or blame worthiness for purposes of criminal responsibility is the focus of this unit.

Objectives

When you have studied this unit, you should be able to:

1. Define a principal offender
2. Distinguish each class of “Principal Offenders”
3. Assimilate the application of the statutory provision by reference to decided
4. Compare and contrast the common law and statute on the subject

Main Content

In criminal law, there are certain distinctive parties to an offence. This include:

1. The principal offender;
2. Accessory after the fact;
3. Persons who compound felonies;
4. Accomplices

Parties to offence

At common law, parties to a crime include primary offenders and secondary parties. Under the Nigeria law, the nomenclatures are different.

The Criminal Code, Section 7, provides as follows:-

When an offence is committed, each of the following persons is deemed to have taken part in committing the offence 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 constitute the
• Every person, who does or omits to do any act as for the purpose of enabling or aiding another person to commit the offence.
• Every person who aids another person is committing the offence
• Any person who counsels or procures any other person to commit the offence

In the fourth case, he/she may be charged either with himself 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 of committing the offence.

Any person who procures another to do or omit to do any act of 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 an offence of the same kind ,and is liable to the same punishment, as if he had himself done the act or made the mission, and he may be charged with himself doing the act or making the omission.

Let us consider each class of offenders a little more:

Categories of Parties to an offence

• Person who actually does the act or makes the
• He is the person to whom, mens rea is attributed

©       Fires a gun or administers poison, which courses with death,

• Appropriates the goods stolen ,
• Goes through a second ceremony of marriage

If an offence is committed by a group of people, say 20 persons, and the police have solved the case by arresting 9, 10, 11,or 12 of them. No law binds the police to charge all of them. They may, in exercise of their discretion charge 3, 4, 5 or none of them. They may deliberately (and legitimately too) omit to charge the person who actually did the act or made the omission which constitutes the offence. However,  although they have the power, they may not necessarily and are not likely to exercise it that way. It all depends on the facts and circumstances of  each case, and the vagaries of police policy

For example suppose among the 20 people that committed the offence, the person who actually did the act or made the omission which constitutes the offence is an infant. It would be illegitimate to charge but quitted legitimate to charge the adults falling under sub-section (b) (c) (d) of Section 7 to the exclusion of the infant under 7(a).

Where it is proved that two or more persons have acted in concert when the act or omission which constituted the offence was  actually done or made, it is not necessary to prove which of them did the act or omission, as long as it is proved that one

Of them, must have done so: Alagba (1950) 19 NLR 128 (PC).

                “Aiders and Abettors’ and “Aid and Abet”

Aiding or enabling another is to aid and abet, to assist or facilitate the commission of a crime or to promote its accomplishment.

Aid:

To aid is to “give help, support or assistance to” before or at the time of offence. Aid denotes the actus reus. Example: supplying a weapon of offence. Transporting the offender to the scene

Aiding or enabling. To abet, excite, encourage, advise, or instigate the commission of a crime.

The person who does or omits to do an act for the purpose of aiding or enabling another(section 7, sub-section (b) or who aids another (section 7,sub-section(c) ) to commit an offence is a party to the offence committed.

R v Bryce (2004), (1) transported P (the killer) who was acting on the orders of if B.(a drug baron) to the scene; but killing did not occur until  hours later. Held there was no overwhelming supervening event “sufficient to break the chain of causation.

Akran v IGP (1960)

A police officer, who merely aided two men to procure for themselves, a driver’s licence by false pretence, was charged with actually obtaining the licence. The court held that the prosecution was entitled to do so.

What each of the parties did in facilitating the commission of the crime must be clear. Mere presence, at the scene of crime, without more, would not suffice except if by nature of his status (position of rank or influence) his presence could be taken to tantamount to a direct encouragement.

R V Akpunonu (1942)

A father buried alive a newly born twin in the presence of their mother. Held there was no evidence that the mother took part, aided, enabled, counseled or procured or did anything to enable or aid. The court considers the definition of each principal offender in relation with the facts of each particular case and labels them accordingly.

Self Assessment Exercise

Examine the situation below and answer the questions which follows:

Yakub is accused of stealing a goat. It was alleged that Bassey lent him a rope which enabled him to overcome and carry away the goat. Salami stood a few yards away to watch if anyone was coming their direction in order to ward off their capture. Nwonu was present. watching the scenario. Yakub, Bassey. Salami and Nwonu are arrested and charge as parties to the offence of theft of a goat. The counsel for Yakubu  has  made a no case submission and he is discharged on the ground that the prosecution has failed to establish any prima facie case against him. The prosecution seeks to proceed with the case.

1. What are the chances of Bassey, Salami and Nwonu?
2. Would it make a difference if Bassey, Salami and Nwonu were charged to the exclusion of Yakubu either because he is an innocent agent relieved of criminal responsibility or simply not charged?

Let us consider some differences between section 7 (b) and 7 (c)

Section 7 (b)	Section 7 (c)
Does or omits to do any act fir purpose of enabling or aiding another to commit a crime. Abets incites, investigates, or encourages. Does not imply the offence has been committed, the encouragement may have failed. But the offence must have been committed. Act of aiding or enabling takes place before the Commission of the crime. At Common Law, a principal in the second degree.	Aids another person in committing an offence.       Gives help, support, or assistance.     The assistance as well as the commission of crime are simultaneous.
It    is    not    requirement    of    the
criminal    law    that    the    act    or
omission “enabling or aiding” must
facilitate   the   commission   of   the	At Common law, this is accessory

 

 

crime charged.	before the facts.
But there must be (i) some connection, at least, an awareness that there is the authority, encouragement or the approval to do the relevant acts (i) meeting of minds between the abettor and the principal (or otherwise the abetting would not be operative.	Assistance falls short of actual commission but there must be clear evidence of the act of assistance something to facilitate the commission of the crime charged.

 

R Idiong and Umo (1950)

Idiong intending to procure an abortion, induced Umo to administer a drug to the woman and she died as a result.

Held Umo is an innocent agent and Idiong , was solely liable “as if the unlawful act had been done by himself”. If Umo knows of Idiong’s intendment and still acted the way he did, he would probably be a principal offender under (section 7,sub-section(a) while Idiong falls under section 7 sub-section (d)for counseling and procuring .

However, one can only aid and abet a substantive offence which has been committed (State v Nwanoga (1979).

Self Assessment Exercise

Kalu and Uba intend to steal from Yinka. Uba drills a hole through the wall to let Kalu into Yinka’s bed room unknown to B, who eventually entered the room through the chimney, and successfully steals?

It is not enough that the suspect was present and did nothing more to facilitate the commission of the offence charged..

In Akanni VR

The Court held that the members of a crowd who stood by, watching house burning, knowing an old woman to be locked in, behaved disgracefully but that does not bring them within section 7 as to be regarded as participants in murder.

To constitute an offence , one’s presence must purposely facilitate or aid the commission of crime charged. In which case, he/she is  an accomplice . His presence and omission to act constitute intentional aid. Azuma VR (1950).

Enweonye v R

There was a clash between occupants of canoes in a river. The evidence against the appellant was that he was at the bank of the river at the time and a call was made to him to pursue one of the disputants but this call had no effect.

The court confirmed that a man cannot be liable under section 7(c) unless his act or omission is of actual assistance, although he can under 7(b).

R.V Ukpe

The court held the presence at a meeting at which a killing was planned coupled with a solemn oats to do the killing was not enough to bring the accuses within the ambit of section 7, sub section (b)

SR V Mayberry

This is a Queensland case based on an identical Criminal Code with the Nigerian Criminal Code.

B and D were charged with raping V(B for raping and D for aiding). The evidence against D was that he did acts of assistance to B in the course of B raping V. The act of assistance consisted of the fact when V screamed as a result of the pain upon penetration, D prevented Carol  (V’s girl friend), who had been with them in a car from going to V’s rescue.

By a majority decision, B and D was held to be parties to the rape and convicted. The dissenting judgment found B guilty and D not guilty.

Let us digress on this case a little more so that you can assimilate the judicial reasoning.

Rape is an unlawful sexual intercourse of a female without her consent. To constitute this offence, there must be penetration. The Criminal Code provides that the offence “is complete upon penetration” (section 6).

The dissenting judgment thought that D’s act of assistance came after penetration and therefore after the offence of rape had been completed.

In the opinion of the majority of the judges, although penetration had taken place, what takes place thereafter (eg ejaculation) is still part of the act of rape.

Conclusion

Parties to crimes at common law are primary and secondary parties. Under our law they are four categories. Three of the categories are: the person who actually does the act or makes the omission which constitutes the crime; the person who does an act or makes the omission for the purpose of enabling another to commit the crime and one who aids another to in committing the crime.

Summary

You have learned about three groups of parties to a crime in this unit, You will learn about the remainder in the next unit. See below for an illustration of the principal offender:

) Person who actually does the act or makes the omission.

(b)     He is the person to whom, mens rea is attributed.

© Fires a gun or administers poison, which courses with death,

• appropriates the goods stolen ,
• goes through a second ceremony of marriage

The   person   who   aids   and   the   other   who   abets   have   also   been distinguished from one another.

 Tutor Marked Assignment

1. Bayo breaks into Daisy’s shop at 6.00am. Tunji, seeing someone approaching, went to the shop, knocked on the window signaling to Bayo to leave. Bayo left, taking with him, a set of gold trinket which he intends to give to his wife Pauline, on her

Discuss the criminal liability of Bayo and Tunji.

(For a guide see the case of R V Johnson(1973) Qd. R. 303 and R V Mayberry(1973) Qd R.211.

2. Advise Sina, Essiet, Emeka, and Aluko in the following transactions
3. Sina is charged with aiding Feso, and Bartholomew and all are arrested and charged. Feso and Bartholomew are
4. Essiet assists a 5 year old boy, X, to carry home what the boy has shop
5. Police alleged  that an offence     has been committed and charged Emeka of aiding the commission of the
6. X, a 6 year old helps Aluko to carry home what Aluko lifted from the shop without paying for

Reference

1. Beatty V. Gillbbanks (1882) 9 QBD 308
2. RVBBryce (2004) Crime L.R. 936
3. Ormerod, D: (2005) Smith & Hogan Criminal Law, Oxford University Press.
4. Gurland, M    (2003),    Criminal    Law    for    Criminal    Justice. Professional, Glencoe MC Graw-Hill, new York