Parties to an Offence Cont’d

 Contents

1. Introduction
2. Objectives
3. Main Content
   • Persons who counsel or procure
   • Innocent Agency
   • Invalid consideration
   • Minor variation
   • Break in the Chain of counseling or aprocuring

4       Conclusion

5. Summary
6. Tutor marked Assignment

 Introduction

Parties to an offence are of two categories – principal offenders and accessories. Principal offenders are of four groups. You have learned about three of the group. The last of the groups of principal offenders is what you will learn in this unit

Objectives.

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

1. Identify each category of offenders among groups of persons who may be involved in committing an offence in one way of another
2. Distinguish each of the categories of principal offenders
3. Define ‘Counseling’ ‘procuring’

Main Content.

When an offence is committed, the following person is deemed to have taken part in committing the offence and to be guilty of he offence and may be charged with actually committing it, that is to say:

Any person who counsels or procures any other person to commit the offence

Such a person may be charge either with himself committing the offence or with counseling or procuring its commission See Section 7(d), CC

Persons who counsel and procure others (7d)

To procure is to induce or prevail on another to commit a crime that is in fact later committed.

Counseling or procuring must be by positive act, some positive encouragement to those who carry out the proscribed act.

Persons who counsel or procure other to crime may or may not be present when the crime is being committed. Usually, they are absent unlike those who aid or abet who are often present.

Let us take some illustrations.

• A group of people met; they are faced with orders to kill Kudi; and they decided unanimously to obey those orders; Kudi has been killed.

The members of the group present in the meeting can be said to encourage one another to kill Kudi.

• The group of men (above) had resolved to kill Kudi in her home on Saturday night, but that plan failed. Some days later, three of the men cornered Kudi on the highway and assassinated

Suppose among the group there was a police officer who feigned participation in order to observe and obtain evidence.

See  R   V   Okoye,  (1950),19   NLR   103,Olukola,   (1939),   5 WACA 188,Diamantides  V  Chief  Inspector      of Mines (1950) 13 WACA 94.Obasi (1965)NMR 119 and R V Idika (1959) 4 FSC106.

If a person joins a Society of which one of its objects is murder, and is present and acquiescent when a murder is carried out in pursuance of the objects of the society, it is no defence to say that he did not commit the murder with his own hands, or even that he refused a command to do so, unless the circumstances of his refusal were such as to indicate a complete and final repudiation of the society.

R V. Obodo & Ors (1958) 4 FSC 1 The accused and other persons were members of a secret society whose object was to kill thieves and anyone  it chooses. At one of their meeting, the chief ordered them to kill his wife and when they refused the chief carried out the killing. On appeal  against conviction, Ademola, CJ, said:

If a person joins a society of which one of the objects is murder and is present and acquiescent when a murder is carried in pursuance of the objects of the society, it is no defence to say that he did not commit the murder with his own hands or even that he refused command to do so, unless the circumstances of his refusal were such as to indicate complete and final repudiation of the society, which n one of the present applicants can claim to have made

The Supreme Court dismissed the appeal. Read  also R              v. Idika (1959) 4 FSC 106

The English case of R.v Craft (1944) KB. 295 is also relevant to the Nigerian situation.

Innocent Agency.

An Innocent agent is one who, without means rea, directly brings about the actus reus.

The innocent agent or other person under disability is an extention of the hand of the person who procures his/her.

Thus if a man or woman procures an innocent person to do an act or make an omission of such a nature that if he/she had done the act or made the omission, the act or omission would have constituted an offence, he/she would be a party to the crime committed.

Invalid Considerations:

1. Ordinary Words

Unless they involve positive act of encouragement to those who committed the offence, the following will not suffice for a charge of counselling or procuring:

• Ordinary words alone
• Words amounting to
  • Tacit acquiescence
  • Bare permission See Idika v R(1959).

In Ajao v Alkali Amodu (1960) an Alkali ordered a policemen to slap an accused person for contempt of his court and he was held liable under Section 7 subsection (d).

Minor variations

• Changes in

If Adoye counsels Oliver to commit a crime on a certain Friday but Oliver committed the offence on Monday, Adoye’s counsel is still operative.

• Presence or absence of the person counselling or

If a person intentionally counsels a crime, he continues to be liable whether or not he is present.

2. Counselling for purpose of section 7 (a) does not include professed advice or encouragement, which has no effect on the mind of the principal offender. Liability lies even if, when he counselled, the person counselled had already made up his mind to commit the offence.

Break in the chain of Counselling or Procuring

Counselling or procuring the commission of an offence ceases to have effect when the person Counselling or procuring expresses by countermands or revokes the previous Counselling or procuring.

To be effective, the repudiation foundation must be communicated to the confederates.

Examine the following cases.

• Fidelia, on Wednesday, counsells Umah and Etim to waylay and hijack the trailer load of goods from Dubai on

Early on Saturday, Fidelia announces her complete renunciation of the common intention but Etim, unknown to Fidelia has already carried the intention to effect.

• Ejike counsels Obele and Felicitas to beat up Margaret and teacher her “certain lessons” at Tundun Wada as the return from the Study Centre on Friday. On Thursday, Ejike informed the confederates of her change of mind and complete repudiation of their earlier common intention. Obele and Felicitas disagree with Ejike act of betrayal. Felicitas met Margaret and beat her up and wounded

Nweke counselled or procured Ejike Etuk and Ahmed to commit a crime on a Sunday night. On friday Nweke changed his mind and informed Ahmed. He pleaded with Ahmed to inform Etuk. On Saturday, Etuk carried their earlier common intension into effect, and committed the crime as previously arranged.

Attempt to analyse the criminal responsibility of each of the characters.

Refer to the following cases.

R V. Idiaka (1959) Okafor V State (1965)

There is force in Stephen’s assertion that one who procures is liable only for an offence “which is committed in consequence of such counseling, procuring or commandment” (Digest 4^th .ed. Art 39).

You have completed the discourse on Principal parties. Note that each of the principal offenders you have learned –the perpetrator, the aider, the enabler, the procurer and the counselor -is liable for the full punishment for the offence

Activity

Consider the hypothetical case given by Okonkwo and Naish.

A tells B and C that a warehouse has a large sum of money inside; D knowing of their intention to burgle it, lends them a rope to tie  up the night watchman; E drive them to the scene of the crime, not knowing their purpose, F witnesses their entry into the warehouse but does not prevent it;, B stands on guard while C actually robs the cashbox; a night watchman surprises them and B uses the rope to strangle him; G knowing og the burglary but not of murder diverts a policeman’s attention while B and C escape; H  hides them. All the parties have now been arrested

Attempt to identify, with justification, the liability of the various parties for the crime committed.

Conclusion

A principal offender directly and immediately causes the actus reus of a crime. Others who aid, enable, counsel or procure are derivative from the liability of the principal. Lord Widgery C.J rightly notes that these four words connote different things; otherwise, “Parliament would be wasting time in using four words where one, two or three would do” The  definition of an offence prescribes the requisite actus reus and your knowledge of it coupled with the facts of each case enable  you  to identify:

• the elements of actus reus
• Form(s) of conduct constituting aiding, enabling, counselling or procuring
• Causal link between aiding, enabling, counselling or procuring AND the principal offence
• Consensus ad idem between aider, abettor, counselor, procurement AND the principal

Summary

In thus unit, we have identified 4 groups of principal offenders. We  looked into a number of cases to see how the judges have tried to differentiate one class from another; such that in a given case, you should be able to do the same. A sole principal offender causes the actusreus: There may also be joint principals when two or more persons jointly engage in the activity. Other participants in the “joint enterprise” are persons who aid, enable(abet)., counsel or procure. A procurer of an innocent agent to commit an offence is deemed to have caused the actus reus. where procuring is charged, consensus is immaterial. As Smith and Hogan has observed, the terminological difficulties with four possible methods of participating in crime complicate the statement of law. It has been suggested that in substance these are only two kinds of actions involved:

• Intentionally influencing the decision of the primary party to commit the crime , and
• Internationally helping the primary actor to commit the crime. The pitfall in this suggestion is its failure to consider situation where the principal is strictly liable

Tutor-Marked Assignment

1. A person who procures, assists or encourages another to cause a result that is an element of an offence does himself cause that result so as to be guilty of the offence as a principal when:
   1. Innocent agency has been
   2. The offence itself consists in the procuring, assisting, and encouraging another to cause the
2. Discuss with reference to decided cases and statutes
3. Discuss the criminal liability of each of the following characters

a        D who induced  a  child of    10 to take money from a Fill and give it to D

1. K who procures a child of 10 to have sexual intercourse, of F without her consent.
2. Distinguish with   reference   to   decided   cases   and   statute   the following statutory
3. Section 7, sub-section (b) of the Criminal code b Section 7, sub-section (c) of the Criminal Code
4. Section 7 sub-section((d) of the Criminal Code

          References

1. Beatty Gillbbanks (1882) 9 QBD 308
2. R V BBryce (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