Aiding and abetting

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Aiding and abetting is a legal doctrine related to the guilt of someone who aids or abets (encourages, incites) another person in the commission of a crime (or in another's suicide). It exists in a number of different countries and generally allows a court to pronounce someone guilty for aiding and abetting in a crime even if they are not the principal offender.

Contents

Canada

In Canada, a person who aids or abets in the commission of a crime is treated the same as a principal offender under the criminal law. Section 21(1) of the Criminal Code provides that:

Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it. [1]

To show that an accused aided or abetted in the commission of a crime, the Crown does not need to prove the guilt of a specific principal offender.

The Crown must show something more than mere presence to prove the act of aiding or abetting. Presence in the commission of a crime might be evidence of aiding and abetting if the accused had prior knowledge of the crime, or if the accused had legal duty or control over the principal offender. For example, the owner of a car who lets another person drive dangerously without taking steps to prevent it may be guilty because of their control over the driver's use of the vehicle. [2]

Further, the Crown must show that the accused had prior knowledge that "an offence of the type committed was planned", but it is not necessary that the accused desired the result or had the motive of assisting the crime. Intention to assist the crime is sufficient. [3]

United States

Criminal

Aiding and abetting is an additional provision in United States criminal law, for situations where it cannot be shown the party personally carried out the criminal offense, but where another person may have carried out the illegal act(s) as an agent of the charged, working together with or under the direction of the charged, who is an accessory to the crime. It is comparable to laws in some other countries governing the actions of accessories, including the similar provision in England and Wales under the Accessories and Abettors Act 1861.

It is derived from the United States Code (U.S.C.), section two of title 18:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

The scope of this federal statute for aiders and abettors "is incredibly broad—it can be implied in every charge for a federal substantive offense." [4] Where the term "principal" refers to any actor who is primarily responsible for a criminal offense.

For a successful prosecution, the provision of "aiding and abetting" must be considered alongside the crime itself, although a defendant can be found guilty of aiding and abetting an offense even if the principal is found not guilty of the crime itself. In all cases of aiding and abetting, it must be shown a crime has been committed, but not necessarily who committed it. [5] It is necessary to show that the defendant has wilfully associated himself with the crime being committed, that he does, through his own act or omission, as he would do if he wished for a criminal venture to succeed. [6] Under this statute, anyone who aids or abets a crime may be charged directly with the crime, as if the charged had carried out the act himself. [7] This is distinct from the concept of being an accessory after the fact, a charge distinct from being a principal.

History

The first United States statute dealing with accessory liability was passed in 1790, and made criminally liable those who should aid and assist, procure, command, counsel or advise murder or robbery on land or sea, or piracy at sea. This was broadened in 1870 to include any felony, and by it an accessory was anyone who counsels, advises or procures the crime. These early statutes were repealed in 1909, and supplanted by 18 U.S.C. § 550, a statute which included the modern language of "Whoever aids, abets, counsels, commands, induces, or procures the commission of an offense is a principal." [8]

In 1948, § 550 became 18 U.S.C. § 2(a). Section 2(b) was also added to make clear the legislative intent to punish as a principal not only one who directly commits an offense and one who "aids, abets, counsels, commands, induces or procures" another to commit an offense, but also anyone who causes the doing of an act which if done by him directly would render him guilty of an offense against the United States. It removes all doubt that one who puts in motion or assists in the illegal enterprise or causes the commission of an indispensable element of the offense by an innocent agent or instrumentality is guilty as a principal even though he intentionally refrained from the direct act constituting the completed offense. [9]

Subsection (a) of Section 2 was amended to its current form in 1951 to read, "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." Subsection (b) was also amended in 1951 to add "wilfully" and "is punishable as a principal." [10]

Application to "white collar crimes"

Since 2001, the Securities and Exchange Commission has filed a number of complaints related to the aiding and abetting of securities fraud. For example, CIBC and Merrill Lynch were separately charged with aiding and abetting Enron’s evasion of record keeping requirements and required financial controls. Settlements, including disgorgement, penalties, and interest reached $80 million in both cases.

Civil

Aiding and abetting is also a legal theory of civil accessory liability. To prove accessory liability through "aiding and abetting," the plaintiffs must prove three elements:

United Kingdom

The Accessories and Abettors Act 1861 provides that an accessory to an indictable offence shall be treated in the same way as if he had actually committed the offence himself. Section 8 of the Act, as amended, reads:

Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender.

Section 10 states that the Act does not apply to Scotland. The rest of the Act was repealed by the Criminal Law Act 1967 as a consequence of the abolition of the distinction between felonies and misdemeanours.

See also

Related Research Articles

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Solicitation is the act of offering, or attempting to purchase, goods or services. Legal status may be specific to the time or place where it occurs. The crime of "solicitation to commit a crime" occurs when a person encourages, "solicits, requests, commands, importunes or otherwise attempts to cause" another person to attempt or commit a crime, with the purpose of thereby facilitating the attempt or commission of that crime.

Under the English common law, an accomplice is a person who actively participates in the commission of a crime, even if they take no part in the actual criminal offense. For example, in a bank robbery, the person who points the gun at the teller and demands the money is guilty of armed robbery. Anyone else directly involved in the commission of the crime, such as the lookout or the getaway car driver, is an accomplice, even if in the absence of an underlying offense keeping a lookout or driving a car would not be an offense.

An attempt to commit a crime occurs if a criminal has an intent to commit a crime and takes a substantial step toward completing the crime, but for reasons not intended by the criminal, the final resulting crime does not occur. Attempt to commit a particular crime is a crime, usually considered to be of the same or lesser gravity as the particular crime attempted. Attempt is a type of inchoate crime, a crime that is not fully developed. The crime of attempt has two elements, intent and some conduct toward completion of the crime.

Suicide Act 1961 United Kingdom legislation

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Art and part is a term used in Scots law to denote the aiding or abetting in the perpetration of a crime, or being an accessory before or at the perpetration of the crime. There is no such offence recognised in Scotland, as that of being an accessory after the fact.

Complicity is the participation in a completed criminal act of an accomplice, a partner in the crime who aids or encourages (abets) other perpetrators of that crime, and who shared with them an intent to act to complete the crime. A person is an accomplice of another person in the commission of a crime if they purpose the completion of a crime, and toward that end, if that person solicits or encourages the other person, or aids or attempts to aid in planning or committing the crime, or has legal duty to prevent that crime but fails to properly make an effort to prevent it.

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Accessories and Abettors Act 1861 United Kingdom legislation

The Accessories and Abettors Act 1861 is a mainly repealed Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated statutory English criminal law related to accomplices, including many classes of encouragers (inciters). Mainly its offences were, according to the draftsman of the Act, replacement enactments with little or no variation in phraseology. It is one of a group of Acts sometimes referred to as the Criminal Law Consolidation Acts 1861. It was passed with the object of simplifying the law. It collected the relevant parts of Peel's Acts and others.

Criminal Attempts Act 1981 United Kingdom legislation

The Criminal Attempts Act 1981 is an Act of the Parliament of the United Kingdom. It applies to England and Wales and creates criminal offences pertaining to attempting to commit crimes. It abolished the common law offence of attempt.

In English criminal law, an inchoate offence is an offence relating to a criminal act which has not, or not yet, been committed. The main inchoate offences are attempting to commit; encouraging or assisting crime; and conspiring to commit. Attempts, governed by the Criminal Attempts Act 1981, are defined as situations where an individual who intends to commit an offence does an act which is "more than merely preparatory" in the offence's commission. Traditionally this definition has caused problems, with no firm rule on what constitutes a "more than merely preparatory" act, but broad judicial statements give some guidance. Incitement, on the other hand, is an offence under the common law, and covers situations where an individual encourages another person to engage in activities which will result in a criminal act taking place, and intends for this act to occur. As a criminal activity, incitement had a particularly broad remit, covering "a suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity". Incitement was abolished by the Serious Crime Act 2007, but continues in other offences and as the basis of the new offence of "encouraging or assisting" the commission of a crime.

Encouraging or assisting a crime is itself a crime in English law, by virtue of the Serious Crime Act 2007. It is one of the inchoate offences of English law.

Refusing to assist a police officer, peace officer or other law enforcement officer is an offence in various jurisdictions around the world. Some jurisdictions use the terminology '"refusing to aid a police officer" or "failure to aid a police officer".

Rape laws vary across the United States jurisdictions. However, rape is federally defined for statistical purposes as:

Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.

References

  1. Criminal Code, RSC 1985, c C-46, s 21.
  2. R. v. Kulbacki, [1966] 1 CCC 167 (Man CA)
  3. R. v. Hibbert , [1995] 2 SCR 973
  4. Benton Martin, Jeremiah Newhall, Technology and the Guilty Mind: When Do Technology Providers Become Criminal Accomplices?
  5. Stephanie Wickouski (2007). Bankruptcy Crimes Third Edition. p. 95. ISBN   978-1-58798-272-9.
  6. American Bar Association Antitrust Section (1982). Jury instructions in criminal antitrust cases. p. 27. ISBN   9780897070546.
  7. "United States v. Hodorowicz – 105 F.2d 218 (1939)". US Circuit Court of Appeals, Seventh Circuit. June 13, 1939. Retrieved 2 September 2010. Quotation: "[A]ny one who assists in the commission of a crime may be charged directly with the commission of the crime".
  8. Text taken from "Criminal Resource Manual 2472". US Justice Department. January 1998., a work of the US Federal Government. It cites United States v. Peoni , 100F.2d401 , 402(2d Cir.1938).
  9. US Justice Department (1998), citing United States v. Dodd, 43 F.3d 759, 763 (1st Cir. 1995).
  10. US Justice Department (1998)
  11. http://trucounsel.com/index.php/aiding-and-abetting, accessed September 15, 2011.