LECTURE 6: PARTIES TO CRIME

INTRODUCTION
ln this lecture you are going to study how, in offences committed by more than one
person, each party to crime will be criminally responsible for his actions or
omissions. In order to appreciate the nature of the laws in the country you will first
study the concept of parties to crime in Britain and later on, the law in Tanzania will
be discussed.
OBJECTIVES
At the end of this lecture you should be able to:

 Categories; and define parties to crime and the degree of their responsibility
in any crime.
 Identify the distinctions in the law of parties to crime in Britain and in
Tanzania.

A crime may be committed by one or more persons. When two or more persons
have engaged in a crime there arises a question as to how much should each one
be liable for the particular crime. This would require investigating the extent of
participation in the particular crime where an offence is committed by more than
one offender or where several offenders perform different roles in the execution of a
common deed. The position in England is different from that in Tanzania. For the
purpose of clarity the laws of the two countries will be discussed, albeit briefly,
separately.
PARTIES TO CRIME IN BRITAIN
Common law classifies parties to crime in four groups,

i). Principal in the first degree

ii). Principal in the second degree (often called an ‘aider’ and ‘abettor’)
 iii). An accessory before the fact and

iv). An accessory after the fact.

A principal in the first degree is the actual offender i.e. the man in whose guilty
mind lay the latest blamable cause of the criminal act . Sometimes he may be the
person by whom this act itself was done but at other times the crime may have
been committed by the hand of an unsuspecting agent. For example A tells B, a
child under 8 years, to bring him money belonging to C. B does so. A is a principal
in the first degree. There may of course, be more than one principal in the first
degree. You have to note that whoever actually commits or takes part in the actual
commission of a crime, is a principal in the first degree, whether he is on the spot
when the crime is committed or not; and if a crime is committed partly in one place
and partly in the other, every one who commits any part of it at any place is a
principal in the first degree.
A person can aid and abet another in the perpetration of a crime of any category
whether the same is taking place where it is committed or elsewhere and, at
common law, has always been equally punishable as principal in the second degree.
However mere presence on the occasion when the crime is committed does not
make him a principal in the second degree even if he neither makes any effort to
prevent the offence or to cause the offender to be apprehended. In order to be
guilty of aiding and abetting a person must, at the critical time, either render
effective aid to the principal offender or else must be present and in some way lend
encouragement to him in what-he is doing, in addition when the existence of a
particular intent forms part of the definition of the offence, a person charged with
aiding and abetting the commission of the offence must be shown to have known
the existence of the intent on the part of the person so aided. The principal in the
first degree and the aider and abettor must, also, have common purpose existing at
the time when the felony is being committed but it is not essentia! that there should
have, as been between them, any agreement as to what the principal in the first
degree should do.
Another party to a crime is an accessory before the fact. This is a person who
directly or indirectly counsels, procures or commands any person to commit any
crime which is committed in consequence of such counseling, procuring or
commandment. There are few major elements to make a person an accessory before
the fact;

a) That he must have known the particular deed contemplated

b) that he approved of it

c) That his approval was expressed in some form which operated to encourage
the principal to perform the deed and

d) That those first three elements came into existence before the time when the
offence was being committed.

However, the fact that, crime has been committed in a manner different from the
mode which the accessory had advised will not excuse him from liability for it. For
example if A hires B to poison C, but B instead kills C by shooting him, A is
nonetheless liable as accessory before the fact to C’s murder. However, when a
totally different crime is committed then he is not liable. Yet where the principal in
the first degree, who has been instigated, makes some mistakes in performance of
then-common aim, this mistake will not excuse the accessory before the fact unless
it will also excuse the principal e.g. in the example above B mistakenly, kill's Cs
brother instead of C. In this case A is liable.
Another party to crime in common law is an accessory after the fact. This is a person
who, knowing that a crime has been committed, subsequently shelters or assists the
culprit in order to enable him to elude justice. The offence cover also parties who
rescue a person from being arrested, persons who, having culprits in custody for
committing crimes, intentionally and voluntarily suffers him to escape or opposes his
apprehension. Active assistance to the criminal is therefore necessary. There is one
exception to this rule i.e. where a married woman receives comforts or relieves her
husband knowing him to have committed a felony.
PARTIES TO CRIME IN TANZANIA
PRINCIPAL OFFENDERS
The law in Tanzania (EA) is not the same as that in England. The penal code of
Tanzania does not adopt the classification made in English law . The Tanzania Penal
Code recognizes only two main parties to the offence i.e. the principal offenders
(under section 22 of the code) and accessories after the fact (under section 287 of
the same code). The definition of principal offenders is found in section 22 of the
Penal Code and includes every person who actually does the act or makes the
omission which constitutes the offence, every person who does or omits to do any
act for the purpose of enabling or aiding other persons to commit the offence,
every person who aids or abets another person in committing the offence and, any
person who counsels or procures any other person to commit the offence.
Therefore those categories in English law, of accessory before the fact and
persons committing, procuring, aiding or abetting in offences are principal
offenders under the Penal Code. The same position is true in Kenya. In the Kenyan
case of Kamau v/R (1965) EA 501, 504 (CA) it was said:-
"The law of Kenya, like that of Tanganyika (citing Sits v. R (1957) EA 308 (CA) does
not use the expression accessory before the fact but by section 20 of the Penal
Code section 22 of Tanganyika Penal Code makes every person who councels or
procures or aids or abets the commission of the offence a principal offender".
Section 24 of the Penal Code clarifies further the circumstances under which
counselling is punishable. The said section provides; " When a person counsels
another to commit an offence and the offence is actually committed after such
counselling by the person to whom it is given , it is immaterial whether the
offence actually committed is the same as the counseled or a different one , or
whether the offence is committed in the way counseled or in different way,
provided in either case that the facts constituting the offence actually
committed were a probable consequence of carrying out the counseling . In
either case did the person who gave the counselling is deemed to have
counselled the other person to commit the offence actually committed by him.
In the case of R v. Beits and Ridley (1930)22 Cr. App; R. 148 Belts and Ridley agreed
that Belts should rob X by pushing him down and seizing the bag he was carrying,
while Ridley would wait, around the comer in a car wherein Belts could make his
escape. Belts struck X with such force that he died. Both were convicted of murder
and appealed. In dismissing the appeal the court, in effect, stated that if a person in
substance complies with a counselling to commit a crime, varying only in
circumstances of time or place or in the manner of execution, the person
soliciting/counselling the offence is guilty of the offence committed. For this reason
the appeals were dismissed. In English law Riddley was on accessory before the fact.
Under section 22 of the Tanzania Penal Code he is a principal offender.
An offence may be committed by more than one principal offender . Where offences
are committed by joint offenders their liability is determined under section 23 of the
Penal Code. The said section gives three conditions to find a person liable under
it;

i). More than one person should form a common intention to prosecute an
unlawful purpose in conjunction with one another,
ii). In the prosecution of such purpose an offence should be committed
 iii). The offence so committed should be a probable consequence of the common

purpose.

A good example is the case of R v. Mughuira and others 10 EACA 105 (1943). The
nine appellants in this case, having formed a common intention during a period of
famine of burgling a house, carried this plan. During the burglary one of the
appellants, who was armed speared and killed the owner of the burgled house , who
on being aroused had fired an arrow at the party grazing the head of one of them.
The appellants denied any intention of murder. The nine appellants were convicted
of murder. On appeal the Court of Appeal held that even though only one member
of the party i.e. the first appellant, who had formed the intention of committing
burglary was armed the enterprise of burglary was unlawful, and the resistance by
the owner of the premises burgled was a probable consequence and the
overcoming of such resistance by violence if necessary , by the burglars would
probably be resorted to were sufficient factors to bring all of the accused persons
within the doctrine of common intention , thus making them equally responsible in
law for the act of the first accused.
The fact that two or more people have the same or similar intention does not
necessarily mean that they have common intention for the circumstances may be
such as to show that each had acted independent of another. A good example is
the case of R v. Okute and Anor 8 EACA 78 (1941). In this case the deceased died
from shock resulting from injuries received in two separate and independent
assaults. The first assault was made by the first appellant and three others who were
convicted of manslaughter but did not appeal. The trial court held that in this
assault the first appellant intended to cause grievous harm but that the other
assailants had not so serious intention. Although the injuries inflicted in this assaults
were serious there was no evidence that they were sufficient of themselves to cause
death. After the first assault and independent of it the second appellant acting in a
manner which clearly showed his intent to cause grievous bodily harm at the least
committed a second and independent assault upon the deceased who was in a
weakened condition as a result of this prior beating and caused a fracture of his
breast bone which was one of the injuries from the cumulative effect of which the
deceased died. On appeal the court of Appeal stated that the second appellant,
having intent to cause grievous bodily harm, inflicted an injury on one who was
already in a weak state was properly convicted of murder. The conviction for the first
appellant was quashed and appeal allowed. You may clearly notice that the two
appellants had similar intention but did not have a common intention.
However the existence of common intention does not necessarily mean that there
should be a previous agreement . Common intention may be formed at the spur of
the moment. In the case of R v. Tabuiayanka s/o Kinya and ors (1943)10 EACA 51 a
suspected thief one Mikairi, was discovered sitting near the door of a hut at night ,
an alarm was sounded and several persons came rushing to the spot and at once
proceeded to be-labor the said Mikairi with fists feet and such weapons they hands
on. The result was death from multiple injuries. In discussing the issue of common
intention the court said; "To constitute common intention... it is not necessary that
there should have been any concerted agreement between the accused prior to
the attack their common intention may be inferred from their presence , their
actions and the omission of any of them to dissociate himself from the assault ."
In this case their appeals against conviction of murder were dismissed.
Read:

1. R. v Mikairi and others 8 EACA 84 (1941)

2. Shene Kimboka v. R (1968) HCD 52
 3. Wanjirov.R (1955) EACA 521.

ACCESSORY AFTER THE FACT

The other category of parties to crime in Tanzania is accessory after the fact. The
definition of an accessory after the fact is found in section 387 of the Penal Code
which provides as follows; "A person who receives or assists another who is to his
knowledge, guilty of an offence in order to enable him to escape punishment, is said
to become an accessory after the fact to the offence .” A wife does not become an
accessory after the fact to an offence of which her husband is guilty by receiving or
assisting him in order to enable him to escape punishment , or by receiving or
assisting in her husband's presence and by his authority, another person who is
guilty of an offence in the commission of which her husband has taken part in order
to enable that other person to escape punishment , nor does a husband become
accessory after the fact to an offence of which his wife is guilty by receiving or
assisting her in order to enable her to escape punishment . The meaning of the term
accessory after the fact in Tanzania is almost the same as that in England. What is
important to understand is the fact that to found a conviction under this section
the accused must knowingly take an active part to assist the principal offender
to escape punishment. In the case of Andrea Nicodemo v. R (1769) HCD 245 the
accused persons were charged for theft. There was evidence that the first accused
had stolen a bicycle and had taken it to the house of the second accused . The
second accused kept it for several days and assisted the first accused in removing
the saddle. The bicycle was later recovered by the police. The trial magistrate found
that the 2nd accused knew that the bicycle had been stolen and convicted him of
being an accessory after the fact c/s 387 of the Penal Code. On appeal the High
Court Stated that to be convicted as an accessory after the fact an accused must not
only know or have reasons to know about the offence but also must take steps for
the purposes of enabling the offender to escape punishment. In this case there was
no evidence that the second accused took such steps and his conviction was
therefore quashed.
SUMMARY
Although the law in Tanzania on this topic was imported from Britain yet there have
been adaptations to suit the local conditions in the country. As you may have
noticed the classification of parties to crime in Britain involves four different
categories and in Tanzania only two are recognized i.e principal offenders and
accessory after the fact. The knowledge of such distinctions is important especially
when you read decided cases in England and Tanzania.