PARTIES TO A CRIME/PARTICIPATION IN CRIME/COMMON INTENTION

Questions of criminal participation arise when more than one person is in

some way involved in the commission of a crime. In some cases, there may be
no single individual who, in his own person, fulfils all the definitional elements
of the criminal offence. Even where there is one such individual, the criminal
law may want to tie other persons to the commission of the offence as well, on
the basis that these other persons are complicit in and therefore share
responsibility for its commission.

The determination of the participation in crime is important:

(i) to guide prosecutors and judicial officers towards fair responsibility-
attributions for criminal norm-violations and their outcomes;
(ii) to ensure that the conviction offence fairly reflects the gravamen of the
accused’s criminal conduct; and
(iii)to facilitate accurate reflection of different degrees of responsibility in
sentencing decisions.

The parties to an offence include:

1. Perpetrator
2. Aiding
3. Abetting
4. Counseling
5. Procuring
6. Accessory after the Fact

This is a situation in which two or more parties form a common intention to

carry out a criminal act. The degree of their participation might vary but the
law would hold them jointly and severally liable for the commission of the
crime. The law regards all of them as partners in the crime as encapsulated in
the maxim “particeps criminis“.
1
Section 20 of The Penal Code Act provides that when two or more persons form
a common intention to prosecute an unlawful purpose in conjunction with one
another, and in the prosecution of that purpose an offence is committed of
such a nature that its commission was a probable consequence of the
prosecution of that purpose, each of them is deemed to have committed the
offence. Uganda v Ambayo & Anor (Criminal Sessions Case 11 of 2016)
[2018] UGHCCRD 47 (27 February 2018)

For the prosecution to be successful, it has to establish the common intention

of the parties charged.

For convenience, parties to an offence can be divided into two:

1. Principal Offenders
2. Secondary Offenders

(1) Principal Offender/ Perpetrator

This is the person who commits the actual offence. The principal offender for
example he or she is the one who stabs the victim in the wounding offence,
penetrates the non-consenting victim in the rape offence, damages a person’s
property in the case of criminal damage or causes death of the victim in the
offence of homicide. Thus, a principal offender is the person whose act is the
immediate cause of the physical injury suffered by the victim.

Section 19 of the Penal Code provides:

(1) 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—
(a) every person who actually does the act or makes the omission which
constitutes the offence (Principal offender).
2
This is the person who actually commits the offence or performs the act
described in the offence. For example, the person who points the gun at a bank
teller or grocery clerk and demands money is the perpetrator. In some cases,
there can be more than one perpetrator. It is important note that

In all cases, the perpetrator must be present at the scene of the offence.

In case of Bashaya vs State (1998) 5 NWLR 550, the deceased, while on a

journey, was attacked by a group of men, armed with sticks and other
weapons, and was killed. The person that delivered the fatal blow was
considered inconsequential and they were all convicted for murder.

It should be noted that a person might not commit an offence but would still be
regarded as a principal offender if he commits such offence through an
“Innocent Agent”. In the case of R vs Stringer, an employer who dictated a
fraudulent letter to his secretary was regarded as the principal offender. The
secretary who had no idea that the letter was for fraudulent purposes was
regarded as an “innocent agent”.

Also, an innocent agent can also be regarded as a person who doesn’t have
capacity or is insane. In the case of R vs Michael (1840) vol 9 AC, a mother
who intended to kill her baby told her nurse, who had no idea it was poison, to
administer a poisonous substance to her baby. The nurse didn’t and kept the
drug on a shelf. Subsequently, a child saw the drug and gave the baby, causing
its death. It was held that the child was an innocent agent and the mother as
the principal agent. The case would not have been different had the nurse
administered the poison. See also Atiku vs State (2010) 9 NWLR pt 1194.

(2) Secondary Offenders

3
Different people might be involved in the commission of an offence. Those who
aid, counsel or procure the offence are regarded as secondary offenders. In the
case of R vs Bryce (2004) vol 2 CAC, the court held that in charging secondary
offenders, phrases like aid, abet and procure should be used.

The accomplices are further divided into abettors / counsellors or procurers.

The difference between counselling and procuring on the one hand from aiding
and abetting on the other is that the former occur before the act is committed
while the latter occur at the scene of the crime. However, an accomplice may
aid the commission of an offence by supplying the necessary equipment,
notwithstanding that he is not at the scene of the crime. He may procure
means to procure by endeavour.

Attorney-General's Reference (No1 of 1975) [1975] QB 773

The accused had laced a friend's drinks with alcohol knowing the friend would
shortly afterwards be driving home. The friend was convicted of drunken
driving. The accused was charged as an accomplice to this offence, but was
acquitted following a successful submission of no case to answer. The trial
judge had taken the view that there had to be evidence of some agreement
between the accomplice and the principal.

Lord Widgery CJ held that the offence had been procured because, unknown to
the driver and without his collaboration, he had been put in a position in which
he had committed an offence which he never would have committed otherwise.
There was a case to answer and the trial judge should have directed the jury
that an offence is committed if it is shown beyond reasonable doubt that the
accused knew that his friend was going to drive, and also knew that the
ordinary and natural result of the added alcohol would be to bring the friend
above the prescribed blood/alcohol limit.

4
(a) Aiding / Aider
This involves helping in the commission of an offence e.g. if X is committing a
burglary and Y is standing on the building watching for any people who could
be coming, Y may be described as aiding in the commission of burglary by X. If
a man X commits the offence of rape upon D while Y holds D, Y would be
aiding X.

This includes the following:

• The person who does something or omits to do something which aids the
commission of the offence.
• The person who knows a crime is being committed and still helps in
some way.
• The person who aids the commission of an offence, one does not have to
be present when the offence is committed.

Section 19 (b) every person who does or omits to do any act for the purpose of
enabling or aiding another person to commit the offence;

This person does something or omits to do something which aids the

commission of the offence.
Person knows a crime is being committed and still helps in some way.
To aid in the commission of an offence, one does not have to be present when
the offence is committed.

Example 1:
• Person A supplies a key to Person B for the purpose of entering and
robbing a store. Person A is an aider even though he does not attend the
robbery.
Example 2:

5
 • Person A leaves a safe unlocked (omits to do something) or fails to lock a
back window or door so that his friend can enter to commit theft. Person
A is an aider.

(b) Abetting
(c) every person who aids or abets another person in committing the offence.

• This is a person who encourages, either orally or passively the

commission of the offence. (Abet means to encourage.)
• An abettor must be present at the scene of the offence.
• A bystander who watches an offence and does not intervene, is not
abetting that offence.

Note the significant difference between an aider and an abettor: The aider does
not necessarily have to attend the scene of the offence while an abettor must be
present.
For example, Person A assaults Person C. Person A does the actual physical
assault, while Person B encourages him on. Person B is an abettor.

What roles did each person play in this assault?

A, B and C decide to beat up a policeman who is on foot patrol. A punches the

policeman while B acts as a lookout. C stands back and shouts encouragement
to A such as: "Hit him, kick him, etc

(c) Distinction between Aiding and abetting

In the case of Uganda v Odhiambo & Anor (Criminal Session 122 of 2015)
[2017] UGHCCRD 25 (4 August 2017) Justice Stephen Mubiru explained the
difference between aiding and abetting. He stated that:

6
Under section 19 of The Penal Code Act, there are different modes of
participation in crime; direct perpetrators, joint perpetrators under a common
concerted plan, accessories before the offence, etc. Each of the modes of
participation may, independently, give rise to criminal responsibility. Individual
criminal responsibility can be incurred where there is either aiding or abetting,
but not necessarily both. Either aiding or abetting alone is sufficient to render the
perpetrator criminally responsible. “Aiding” and “abetting” are not synonymous
though they are so often used conjunctively and treated as a single broad legal
concept. They are distinct legal concepts. Abetting implies facilitating,
encouraging, instigating or advising the commission of a crime. It involves
facilitating (making it easier, smoother or possible) the commission of an act by
being sympathetic thereto. Aiding means assisting (usually giving material
support) or helping another to commit a crime.

Aiding and abetting refers to any act of assistance or support in the commission
of the crime. Such mode of participation may take the form of tangible assistance,
or verbal statements. It includes all acts of assistance or encouragement that
substantially contribute to, or have a substantial effect on, the completion of the
crime. The actus reus for aiding and abetting is that the accused carries out acts
specifically directed to assist, encourage or lend moral support i.e. give practical
assistance, encouragement, or moral support which has a substantial effect on
the perpetration of the crime. It must be proved that the alleged aider and abettor
committed acts specifically aimed at assisting, encouraging, or lending moral
support for the perpetration of a specific crime, and that this support had a
substantial effect on the perpetration of the crime.

It implies in general that, at the moment he acted, the accused knew of the
assistance he was providing in the commission of the principal offence. In other
words, the accused must have acted knowingly. “Knowingly” in the context of
murder means knowledge of the principal offender’s murderous intent. He or she
7
must have carried out the act with the knowledge that it would assist in the
killing of the deceased. The prosecution must prove that he had or she
knowledge that acts he or she performed, would assist in the commission of the
crime by the principal or that the perpetration of the crime would be the possible
and foreseeable result of his conduct. The accomplice must have intended to
provide assistance, or as a minimum, accepted that such assistance would be a
possible and foreseeable consequence of his conduct.

A distinction is to be made between aiding and abetting and participation in

pursuance of a common purpose or design to commit a crime. In crimes requiring
specific intent like murder, it is not necessary to prove that the aider and abettor
shared the mens rea of the principal, but that he or she must have known of the
principal perpetrator’s specific intent. With respect to aiding and abetting murder,
the only mental element required is proof that the accused knew of the
murderous intent of the actual perpetrator, but he or she need not share this
specific intent. If A2 was only aware of the criminal intent of the mob and he
gave it substantial assistance or encouragement in the commission of the crime
then he was only an aider and abettor but if he shared the intent of the mob,
then he is criminally responsible both as a co-perpetrator and as an aider and
abettor. In adducing evidence that A2 tied the legs of the deceased with a rope,
the Prosecution has demonstrated that A2 carried out an act of substantial
practical assistance to the principal offenders, culminating in the latter’s actual
commission of the crime. The assistance had a substantial effect on the
commission of the offence. It has been shown that his participation substantially
contributed to, or had a substantial effect on the consummation of the crime. By
virtue of section 19 (1) (b) and (c) of the Penal Code Act, he is deemed to have
taken part in committing an offence and to be guilty of the offence.

(d) Counseling
This is a person who
8
 – organizes the commission of a crime,
– advises others on how to carry it out,
– supplies equipment with which to commit the crime
• a person who counsels does not have to be at the scene of the crime to
be guilty.
• It is often difficult to prove that a person counseled someone to commit a
crime, so this needs to be considered carefully before charges are laid.

(e) Procuring
This usually difficult to prove.
Examples of procuring include:
• Hiring a hitman;
• Parent getting someone to beat another person up for them.
• Gang initiation etc.
• a person who recruits other people to carry out the crime. (Procuring)

(2) Any person who procures another to do or omit to do any act of such a
nature that if he or she had done the act or made the omission the act or
omission would have constituted an offence on his or her part, is guilty of an
offence of the same kind and is liable to the same punishment as if he or she
had done the act or made the omission.

The above section implies that if a group of people with a common intention to
carry out an unlawful purpose, carry out such purpose, they shall be liable for
any offence that results from the carrying out of the unlawful purpose. If a
person counsels a crime to another, who by following his counsel commits a
crime, they shall both be held liable for the result of the action.
Two distinct classes of parties can be identified as ‘principal offenders’ and
‘accomplices’. A principal offender is one who has actually committed the
offence while the accomplice is the one who has helped in some way.

9
It is important to note:

• Not only are parties to an offence guilty of the offence originally intended,
• BUT they are also guilty of any other offence that occurs as a probable
consequence of their original intention.

For example, A and B plan to push Person C around just for fun. A holds C
while B hits C in the face, breaking C's jaw. They did not plan to break C's jaw
but this was a consequence of the original intention of common assault. Both
could now be charged with assault causing bodily harm because of the injury
sustained

(f) Accessory after the Fact

An accessory is someone who was not involved or had knowledge of the crime
before it was committed but becomes involved after the commission of the
criminal act and knows that the criminal act took place. He or she is an
accessory-after-the-fact who assists someone who has committed a crime or
after the person has committed the crime or with knowledge that the person
committed the crime and with the intent to help the person avoid arrest or
punishment. An accessory after the fact may be held liable for, among other
things, obstruction of justice.
An accessory after the fact is often not considered an accomplice but is treated
as a separate offender Usually the offence must be a felony. Punishment for an
accessory after the fact is universally less than that for the principal offender,
except in cases of sedition or treason.

In Davies v Director of Public Prosecutions [1954] AC 378 a fight between

two groups of youths resulted in a fatal stabbing. The appellant was convicted
of murder. One of the prosecution witnesses was a youth named Lawson. He
10
gave evidence of an oral admission by the appellant after the event. One of the
grounds of appeal was that the judge ought to have given the jury a warning
that Lawson could be regarded as an accomplice, and therefore was someone
whose evidence required to be treated with special caution. Lawson admitted
being involved in the fight at some stage, but he denied all knowledge of a knife
and there was no evidence that he was present when it was produced. He was
initially charged with murder, but no evidence was offered against him. The
House of Lords rejected the argument that an accomplice warning was required

. Lord Simonds LC said at p 401: “I can see no reason why, if half a dozen boys
fight another crowd, and one of them produces a knife and stabs one of the
opponents to death, all the rest of his group should be treated as accomplices in
the use of the knife and the infliction of mortal injury by that means, unless there
is evidence that the rest intended or concerted or at least contemplated an attack
with a knife by one of their number, as opposed to a common assault. If all that
was designed or envisaged was in fact a common assault, and there was no
evidence that Lawson, a party to that common assault, knew that any of his
companions had a knife, then Lawson was not an accomplice in the crime
consisting in its felonious use.

(3) Issues to consider

(i) Modes of Participation

The prosecution has to determine the modes of participation in the criminal
offence.
• Whether the accused actually committed the offence.
• Whether the accused aided/abetted another to do the offence.
• Whether the accused Counselled another to commit an offence
• Whether the accused had the common intention with the person the
person who actually commits.

11
odes of Participation
S. 21 of the Criminal Code allows for a variety of ways of participating in
criminal offences.
1. Actually, commits the offence.
2. Aids/abets another to do the offence.
3. Counsels another to commit an offence.
4. Has the common intention with the person who actually comm
odes of Participation
S. 21 of the Criminal Code allows for a variety of ways of participating in
criminal offences.
1. Actually, commits the offence.
2. Aids/abets another to do the offence.
3. Counsels another to commit an offence.
4. Has the common intention with the person who actually comm
odes of Participation
S. 21 of the Criminal Code allows for a variety of ways of participating in
criminal offences.
1. Actually, commits the offence.
2. Aids/abets another to do the offence.
3. Counsels another to commit an offence.
4. Has the common intention with the person who actually comm
odes of Participation
S. 21 of the Criminal Code allows for a variety of ways of participating in
criminal offences.
1. Actually, commits the offence.
2. Aids/abets another to do the offence.
3. Counsels another to commit an offence.
4. Has the common intention with the person who actually comm
odes of Participation
S. 21 of the Criminal Code allows for a variety of ways of participating in
criminal offences.
12
1. Actually, commits the offence.
2. Aids/abets another to do the offence.
3. Counsels another to commit an offence.
4. Has the common intention with the person who actually comm
odes of Participation
S. 21 of the Criminal Code allows for a variety of ways of participating in
criminal offences.
1. Actually, commits the offence.
2. Aids/abets another to do the offence.
3. Counsels another to commit an offence.
4. Has the common intention with the person who actually comm
odes of Participation
S. 21 of the Criminal Code allows for a variety of ways of participating in
criminal offences.
1. Actually, commits the offence.
2. Aids/abets another to do the offence.
3. Counsels another to commit an offence.
4. Has the common intention with the person who actually comm

R v Butt (1884) 51 LT 607

The defendant had deliberately given false information to the book-keeper of
the company for which he worked, knowing that it would be entered into the
accounts. As the book-keeper had innocently entered the wrong information,
the defendant was convicted as the principal on a charge of falsifying the
accounts.

(ii) Determination of liability

To ensure that the conviction offence fairly reflects the accused’s criminal
conduct it is important to determine which party liable for the offence and
determine the degree of liability.
13
R v Calhaem [1985] QB 808.
The defendant had hired a man named Zajac to kill a woman. Z testified that
after being paid by the defendant he had decided not to carry out the killing,
but instead to visit the victim's house, carrying an unloaded shotgun and a
hammer, to act out a charade that would give the appearance that he had tried
to kill her. He claimed that when he had stepped inside the front door of the
victim's house, she had screamed and he panicked, hitting her several times
with the hammer. The defendant appealed, submitting that, on Z's evidence
there was no causal connection, or no substantial causal connection.

The Court of Appeal affirmed the defendant's conviction. It was held that the
offence of counselling a person to commit an offence is made out if it is proved
that there was a counselling, that the principal offence was committed by the
person counselled and that the person counselled was acting within the scope
of his authority and not accidentally when his mind did not go with his actions.
It is not necessary to show that the counselling was a substantial cause of the
commission of the offence.

Discussion Question

• Person A owes Person B UGX 50,000,000/= but is unable to pay. They

meet and agree to rob a grocery store, part of the proceeds to be used to
repay the loan. Person B provides the layout of the store, the hours of
operation and how to get to the payroll. He also volunteers to recruit two
other people to help with the job.
• Person A, C and D enter the grocery store to commit the robbery. C
forces all the patrons to the back of the store to keep them out of the
way. Person A encourages person D to open the strong box and take all
the money, which he does.

14
 • All three leave the store and make their get away on foot. They meet at
the home of Person B where they divide up the money. The wife of Person
B agrees to house the participants for several days until things cool off.
• What role did each play?

15