Aiding and Abetting in UK Law

It directs attention to the state of mind of the accused—not what he ought to have in contemplation, but what he did have: it avoids definition and classification, while ensuring that a man will not be convicted of aiding and abetting any offence his principal may commit, but only one which is within his contemplation.

In my opinion this argument misunderstands the true nature of the liability of the third party. It is true that his conduct may very often be seen as possessing a dual character of contempt of court by himself and aiding and abetting the contempt by another, but the conduct will always amount to contempt of court by himself. It will be conduct which knowingly interferes with the administration of justice by causing the order of the court to be thwarted.

Aiding and abetting encompasses any assistance, physical or psychological, that has a substantial effect on the commission of the crime. Article 2 para 3(d) of the 1996 Draft Code requires that aiding and abetting should be “direct and substantial”, i.e. the contribution should facilitate the commission of a crime in “some significant way”.

The judges have always assumed responsibility for deciding questions of principle relating to criminal liability and guilt and particularly for setting the standards by which the law expects normal men to act. I would leave cases of direct killing by a principal in the first degree to be dealt with as they arise.

The actus rea is the supplying of an instrument for a crime or anything essential for its commission. The act of supply must be voluntary (in the sense I tried to define earlier in the speech), and it must be foreseen that the instrument or other object or service supplied will probably be used for the commission of a crime. Slade J. thought the very concept of aiding and abetting imported the concept of motive.

These examples of case 2 show that the test for deciding whether C has committed a contempt of court is whether C has by his conduct knowingly impeded or interfered with the administration of justice by the court in the action between A and B. That was the test applied in each of the three authorities referred to above.

So far as aiding, abetting and counselling is concerned we would go a long way with that conclusion. It may very well be, as I said a moment ago, difficult to think of a case of aiding, abetting or counselling when the parties have not met and have not discussed in some respects the terms of the offence which they have in mind. But we do not see why a similar principle should apply to procuring.