Journal of Law and Judicial System Volume 2, Issue 4, 2019, PP 17-25 ISSN 2637-5893 (Online) An Examination of the Scope of Aiding and Abetting in the Process of Crime Commission Alfred O. Filani1*, Omolade A. Oniyinde2 1LL.B (Unilag.) LL.M (Unilag.) Ph.D (Ado) B.L Nigeria 2LL.B (OAU) LL.M (OAU) Ph.D (Ado) B.L Nigeria *Corresponding Author: Alfred O. Filani, LL.B (Unilag.) LL.M (Unilag.) Ph.D (Ado) B.L Nigeria, Email: [email protected] ABSTRACT A number of people may be involved in the commission of an offence either in the planning or actual commission of the offence. Aiding and abetting involve giving assistance, help or facilitating a felon in the process of crime commission. The paper examined the provisions of relevant laws in some selected jurisdictions, elements of the offence and repentance by a secondary party before the crime is committed. The paper concluded that the provisions of the law relating to aiding and abetting in jurisdictions considered are similar and not complex. Keywords: Aiding, Abetting, Assistance, Facilitate, Crime. 5 INTRODUCTION out the crime in question. To abet is to encourage or assist someone, especially, in the In criminal law, it is not only the person who 6 commission of a crime. directly and immediately causes the actus reus of a crime that is solely criminally liable for it. It DISTINCTION BETWEEN AIDING AND is most likely that a number of persons may be ABETTING involved in the commission of an offence at There is judicial and academic disagreement as particular stages either in planning or commission to whether these terms are to be treated as of the crime. However, the degree of their indistinguishable.7 In N.C.B v Gamble,8 the 1 involvement may vary. The law has to decide court was of the opinion that the two words what degree of involvement will suffice for could be used interchangeably. However, Lord criminal liability. 2 The ordinary meaning of “to Widgery was of the opinion that these words aid” is to give help, support, assist 3 or facilitate must be given their ordinary meaning.9 He the commission of a crime or to promote its stated further:10 accomplishment. 4 We approach S.8 of the 1861 Act on the basis In criminal law, an individual aids the that the words should be given their ordinary commission of an offence when, with the meaning, if possible. We approach the section on necessary mens rea, he gives help, support or the basis also that if four words are employed here assistance to the principal offender in carrying “aid, abet, counsel or procure”, the probability 5 Scanlan, F. and Ryan, C. (1985) An Introduction to 1William Wilson (2011) Criminal Law Pearson Criminal Law. London: Financial Training Education Limited, p. 551 Publications, pp. 100 – 101. 6 2Okonkwo, C.O. (1980) Criminal Law in Nigeria, 2nd Garner, B.A. (ed.) Op. at at p. 5 Edition. London: Sweet and Maxwell Limited, p. 156 7Clarkson, C.M.V. and Keating, N.M. (1998) nd 3Hornby, A.S (ed.) (2006) Oxford Advanced Leaner’s Criminal Law: Text and Materials, 2 Edition, Dictionary, 7th Edition, Oxford University Press, p. London; Sweet and Maxwell, p. 503. 31. In Law, it means to help somebody to do 8 (1959) 1 Q. B, p. 11 something illegal or wrong. 9Attorney General‟s Reference (No. 1 of 1975) 4Garner, B.A (ed.) (2009) Black‟s Law Dictionary, (1975) 2 All ER, p. 684 9th Edition. (St. Paul Minnesota: West Group) p. 81. 10Ibid at p. 686 Journal of Law and Judicial System V2 ● I4 ● 2019 17 An Examination of the Scope of Aiding and Abetting in the Process of Crime Commission is that there is a difference between each of those “every person who actually does the act or four words and the other three, because, if there makes the omission which constitutes the were no such difference, then parliament would offence; be wasting time in using four words where two every person who does or omits to do any act or three would do. for the purpose of enabling or aiding another It has also been argued that the phrases “aid and person to commit the offence; abet” and “aider and abettor seem unnecessarily every person who aids another person in verbose. This is because any aid given with committing the offence; mens rea is abetment, hence to add the word every person who counsels or procures any “aid” to “abet” is not necessary.11 According to other person to commit the offence”. Torcia;12 However, in the Northern States of Nigeria, the In connection with the principal in the second Penal Code prefers to refer to those who assist degree or accessory before the fact, the terms in the Commission of an offence as abettors.14 “aid” and “abet” are frequently used Section 85 of the Penal Code states that; interchangeably, although, they are not synonymous. To “aid” is to assist or help Whoever abets an offence shall, if the act another. To “abet” means, literally, to bait or abetted is committed in consequence of the excite, as in the case of an animal. In its legal abetment and no express provision is made by sense, it means to encourage, advise or instigate this Penal Code or by any other law for the time the commission of a crime being in force for the punishment of such abetment, be punished with the punishment The conclusion, therefore, is that there is a provided for the offence distinction between aiding and abetting even though there are some overlaps and in some Also, section 8 (a) of the Advance Fee Fraud cases, they are used interchangeably. For the and other Fraud Related Offences Act, 2004 purposes of this paper, they will be treated as states that any person who conspires with, aids, two distinct words. abets or counsels any other person to commit an offence under the Act is guilty of the offence THE RELEVANT PROVISIONS IN RELATION and liable on conviction to the same punishment TO AIDING AND ABETTING IN SELECTED as is prescribed for that offence under the Act.15 JURISDICTIONS Under the English law, the applicable law is the Section 7 of the Criminal Code applicable in the Accessories and Abettors Act of 1861. The Southern States of Nigeria creates four different relevant section 8 as amended by the Criminal 13 classes of principal offenders . Under this Law Act, 1977 provides that whosoever shall section, all those who aid, counsel or procure as aid, abet, counsel or procure the commission of well as those that actually commit the offence any indictable offence whether the same be an are principal offenders. Section 7 of the offence at common law or by virtue of any law Criminal Code states that: passed or to be passed, shall be liable to be tried, indicted and punished as the principal When an offence is committed, each of the 16 following persons is deemed to have taken part offender. in committing the offence and to be guilty of the In Australia, section 5 of Crimes Act, 1914 as offence, and may be charged with actually amended by section 5, Crimes Act, 1926 committing it, that is to say: provides that any person who aids, abets, counsels or procures or by act or omission is in 11Perkins, R.M and Boyce, R.N. (1982) Criminal any way directly or indirectly, knowingly Law 3rd Edition. Foundation Press, pp. 724 – 725. concerned in, or party to, the commission of any 12Torcia, C.E. (1993) Wharton’s Criminal Law, 5th Edition, p. 88. See also, Plomp of Business (2014) 14 “Aiding and Abetting: The Responsibility of Business Section 83, Cap. P3, Laws of the Federation of Leaders Under the Statute of the International Criminal Nigeria, 2004. Court” Utrecht Journal of International Criminal 15Cap A6, Laws of the Federation of Nigeria, 2004. It Court; 30 (79): 8. is also an offence to conspire with, aids, abets or 13Cap. C38, Laws of the Federation of Nigeria, 2004. counsels any other person to commit an offence under See also, Wigwe, C. C. (2016) Introduction to Criminal section 17 of the Money Laundering Act, 2011. Law in Nigeria. Accra: Mounterest University Press, p. 16Williams, G. (1978) Textbook of Criminal Law. 120 London: Stevens & Sons, p. 289. 18 Journal of Law and Judicial System V2 ● I4 ● 2019 An Examination of the Scope of Aiding and Abetting in the Process of Crime Commission offence against any law of he commonwealth intendment of all the provisions are similar and whether passed before or after the commencement they all, albeit in different forms create principal of the Act, shall be deemed to have committed offenders who may not necessarily commit the that offence and shall be punishable accordingly.17 actual offence, but have given aid in the commission of the offence. However, there is also another provision for aiding the commission of an offence under the ELEMENTS OF THE OFFENCE OF AIDING Queensland Criminal Code of 1899. The AND ABETTING relevant provision is section 7 which provides that: To be guilty of aiding and abetting, a person When an offence is committed each of the must at the critical time either render effective following persons is deemed to have taken part aid to the principal offender or else must be in committing the offence and to be guilty of the present and in some way lend encouragement to offence and may be charged with actually him in what he is doing. Assistance given before committing it (the offence) that is to say:- the offence is committed will ground liability.