An accessory is a person
who assists in the commission of a crime, but who does not actually participate
in the commission of the crime as a joint principal. The distinction between an
accessory and a principal is a question of fact and degree:
Relative severity of penalties
The punishment tariff for accessories varies in different jurisdictions, and has varied at different periods of history. In some times and places accessories have been subject to lesser penalties than principals (the persons who actually commit the crime). In others accessories are considered the same as principals in theory, although in a particular case an accessory may be treated less severely than a principal. In some times and places accessories before the fact (i.e., with knowledge of the crime before it is committed) have been treated differently from accessories after the fact (e.g., those who aid a principal after a crime has been committed, but had no role in the crime itself). Common law traditionally considers an accessory just as guilty as the principal(s) in a crime, and subject to the same penalties. Separate and lesser punishments exist by statute in many jurisdictions.
Conspiracy
In some situations, a charge of conspiracy can be made even if the primary offense is never committed, so long as the plan has been made, and at least one overt act towards the crime has been committed by at least one of the conspirators. For example, if a group plans on forging bank checks, and forges the checks but ultimately does not attempt to cash the checks, the group might still be charged with conspiracy due to the overt act of forgery. Thus, an accessory before the fact will often, but not always, also be considered a conspirator. A conspirator must have been a party to the planning of the crime, rather than merely becoming aware of the plan to commit it and then helping in some way.
A person who incites another to a crime will become a part of a conspiracy if agreement is reached, and may then be considered an accessory or a joint principal if the crime is eventually committed.
In theUnited States
Criminal facilitation
In some jurisdictions, criminal "facilitation" laws do not require that the primary crime be actually committed as a prerequisite for criminal liability. These include state statutes making it a crime to "provide" a person with "means or opportunity" to commit a crime, "believing it probable that he is rendering aid to a person who intends to commit a crime."
Knowledge of the crime
To be convicted of an accessory charge, the accused must generally be proved to have had actual knowledge that a crime was going to be, or had been, committed. Furthermore, there must be proof that the accessory knew that his or her action, or inaction, was helping the criminals commit the crime, or evade detection, or escape. A person who unknowingly houses a person who has just committed a crime, for instance, may not be charged with an accessory offense because they did not have knowledge of the crime.
Exceptions
In many jurisdictions a person may not be charged as an accessory to a crime committed by his or her spouse. This is related to the traditional privilege not to testify against an accused spouse, and the older idea that a wife was completely subject to the orders of a husband, whether lawful or illegal.
In most jurisdictions an accessory cannot be tried before the principal is convicted, unless the accessory and principal are tried together, or unless the accessory consents to being tried first.
The term "accessory" derives from the English common law, and been inherited by those countries with a more or less Anglo-American legal system. The concept of complicity is, of course, common across different legal traditions. The specific terms accessory-before-the-fact and accessory-after-the-fact were used inEngland
and the United States
The spelling accessary is occasionally used, but only in this legal sense.
The English legal authority William Blackstone, in his Commentaries, defined an accessory as:
II. AN accessory is he who is not the chief actor in the offense, nor present at its performance, but is someway concerned therein, either before or after the fact committed.
He goes on to define an accessory-before-the-fact in these words:
As to the second point, who may be an accessory before the fact; Sir Matthew Hale 12 defines him to be one, who being absent at the time of the crime committed, does yet procure, counsel, or command another to commit a crime. Herein absence is necessary to make him an accessory; for such procusence is necessary to make him an accessory; for if such procurer, or the like, be present, he is guilty of the crime as principal.
and an accessory-after-the-fact as follows:
An accessory after the fact may be, where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. Therefore, to make an accessory ex post facto, it is in the first place requisite that he knows of the felony committed.18 In the next place, he must receive, relieve, comfort, or assist him. And, generally, any assistance whatever given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the assistor an accessory. As furnishing him with a horse to escape his pursuers, money or victuals to support him, a house or other shelter to conceal him, or open force and violence to rescue or protect him.
- The principal is the one whose acts or omissions,
accompanied by the relevant mens rea (Latin for "guilty
mind"), are the most immediate cause of the actus
- If two or more people are directly
responsible for the actus
Elements
In some jurisdictions,
an accessory is distinguished from an accomplice, who normally is present at
the crime and participates in some way. An accessory must generally have
knowledge that a crime is being, or will be committed. A person with such
knowledge may become an accessory by helping or encouraging the criminal in
some way. The assistance to the criminal may be of any type, including
emotional or financial assistance as well as physical assistance or
concealment.
Relative severity of penalties
The punishment tariff for accessories varies in different jurisdictions, and has varied at different periods of history. In some times and places accessories have been subject to lesser penalties than principals (the persons who actually commit the crime). In others accessories are considered the same as principals in theory, although in a particular case an accessory may be treated less severely than a principal. In some times and places accessories before the fact (i.e., with knowledge of the crime before it is committed) have been treated differently from accessories after the fact (e.g., those who aid a principal after a crime has been committed, but had no role in the crime itself). Common law traditionally considers an accessory just as guilty as the principal(s) in a crime, and subject to the same penalties. Separate and lesser punishments exist by statute in many jurisdictions.
Conspiracy
In some situations, a charge of conspiracy can be made even if the primary offense is never committed, so long as the plan has been made, and at least one overt act towards the crime has been committed by at least one of the conspirators. For example, if a group plans on forging bank checks, and forges the checks but ultimately does not attempt to cash the checks, the group might still be charged with conspiracy due to the overt act of forgery. Thus, an accessory before the fact will often, but not always, also be considered a conspirator. A conspirator must have been a party to the planning of the crime, rather than merely becoming aware of the plan to commit it and then helping in some way.
A person who incites another to a crime will become a part of a conspiracy if agreement is reached, and may then be considered an accessory or a joint principal if the crime is eventually committed.
In the
Criminal facilitation
In some jurisdictions, criminal "facilitation" laws do not require that the primary crime be actually committed as a prerequisite for criminal liability. These include state statutes making it a crime to "provide" a person with "means or opportunity" to commit a crime, "believing it probable that he is rendering aid to a person who intends to commit a crime."
Knowledge of the crime
To be convicted of an accessory charge, the accused must generally be proved to have had actual knowledge that a crime was going to be, or had been, committed. Furthermore, there must be proof that the accessory knew that his or her action, or inaction, was helping the criminals commit the crime, or evade detection, or escape. A person who unknowingly houses a person who has just committed a crime, for instance, may not be charged with an accessory offense because they did not have knowledge of the crime.
Exceptions
In many jurisdictions a person may not be charged as an accessory to a crime committed by his or her spouse. This is related to the traditional privilege not to testify against an accused spouse, and the older idea that a wife was completely subject to the orders of a husband, whether lawful or illegal.
In most jurisdictions an accessory cannot be tried before the principal is convicted, unless the accessory and principal are tried together, or unless the accessory consents to being tried first.
Usage
The term "accessory" derives from the English common law, and been inherited by those countries with a more or less Anglo-American legal system. The concept of complicity is, of course, common across different legal traditions. The specific terms accessory-before-the-fact and accessory-after-the-fact were used in
The spelling accessary is occasionally used, but only in this legal sense.
History
The English legal authority William Blackstone, in his Commentaries, defined an accessory as:
II. AN accessory is he who is not the chief actor in the offense, nor present at its performance, but is someway concerned therein, either before or after the fact committed.
— Book 4 chapter 3
He goes on to define an accessory-before-the-fact in these words:
As to the second point, who may be an accessory before the fact; Sir Matthew Hale 12 defines him to be one, who being absent at the time of the crime committed, does yet procure, counsel, or command another to commit a crime. Herein absence is necessary to make him an accessory; for such procusence is necessary to make him an accessory; for if such procurer, or the like, be present, he is guilty of the crime as principal.
and an accessory-after-the-fact as follows:
An accessory after the fact may be, where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. Therefore, to make an accessory ex post facto, it is in the first place requisite that he knows of the felony committed.18 In the next place, he must receive, relieve, comfort, or assist him. And, generally, any assistance whatever given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the assistor an accessory. As furnishing him with a horse to escape his pursuers, money or victuals to support him, a house or other shelter to conceal him, or open force and violence to rescue or protect him.
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