Wednesday, 24 August 2016

Can you aid and abet a drink driving offence?

One question I am regularly asked is whether somebody can be guilty of aiding and abetting a drink driving offence. Aiding and abetting is one of those phrases that’s well known to the public and most people understand it to mean “helping and offender”. While that’s a reasonable everyday explanation the legal meaning is a little more complicated.

The full phrase is “aiding, abetting, counselling and procuring” an offence. None of the words are particularly well defined by the courts; since the abolition of the need to distinguish between felonies and misdemeanours aiding and abetting has always been charged using all four words.  Nonetheless, I will do my best to define each word for you:
1.            Aiding – occurs when an accessory to a crime offers help or assistance to the principal offender, e.g. by supplying a gun for use in a crime.
2.            Abetting – I will quote “Criminal Law: cases and materials” by Herring here, because it made me laugh.  “To be honest no one knows what abetting means”.  In NCB v Gamble [1959] 1 QB 11 Devlin, LJ. says that abetting is encouragement given at the time of the offence as opposed to procurement, which is encouragement given before the commission of the offence.  Personally, I think it’s just an old-fashioned word that means nothing except that some long dead lawyer insisted on the belt and braces approach to drafting and others trying to look clever took up the word rather than admitting they had no idea what it meant.
3.            Counselling – involves directing somebody to commit an offence.  The accessory may indicate that commission of a particular offence is desirable or may go further to incite or instigate the crime, e.g. King Henry’s words "Will no one rid me of this turbulent priest?" were interpreted by his followers as meaning he wanted Thomas Becket killed.  If that was his meaning, then perhaps that would be counselling… if he wasn’t King that is.
4.            Procuring – will occur when the principal acts as a result of the accessories actions, e.g. Peter hears of a conspiracy between Mark and John to kill him and so convinces Trevor, who has a grudge against Mark and John, to off them before they can top Peter.
There is nothing special about drink driving in law that would prevent somebody being an accessory to the offence and so you can be convicted of aiding and abetting a drink driving offence.

In 1990, the High Court heard the case of DPP v Anderson. In that case, Mr Anderson had been a pillion passenger on his friend’s motorcycle. In his police interview, Mr Anderson admitted knowing that his friend had consumed half a bottle of wine. Mr Anderson was acquitted by the magistrates at his trial but convicted by the High Court on appeal by the prosecution. At the appeal, the High Court said that at trial the prosecution must prove:
1.       That the driver had in fact committed an offence;
2.       The defendant was aware or reckless as to whether the driver was over the drink driving limit;
3.       That the defendant had aided, abetted, counselled or procured the driver to commit the offence.

So, before considering whether somebody aided or abetted an offence the prosecution must first prove that the driver actually committed an offence and that the aider or abettor was aware of the offence at the time it was committed or was reckless whether the driver was committing a crime. Mr Anderson committed a crime because he gave evidence that he did not think about whether his friend was save to drive at all. Once the prosecution have proven the first two points they must then show that the defendant’s behaviour fits the descriptions of aiding, abetting, counselling or procuring.

In a case known by the snappy title of Attorney General’s Reference (No 1 or 1975), the Court of Appeal held that somebody who laces another’s drink with alcohol knowing that the other person is going to drive is guilty of procuring a drink driving offence. Of course, that would be a special reason for avoiding a driving ban for the driver himself.

If you were prosecuted for aiding or abetting a drink driving offence and were convicted, what sentence would you expect?

The court is required to treat aiders and abettors in the same way as they would treat the principal offender, i.e. the driver. This means that a person convicting of aiding or abetting a drink driving offence will receive a minimum 12 month driving disqualification plus a fine and they could be sent to prison or made subject to a community order.

The exact length of the driving disqualification depends on the alcohol reading in the principal offender’s body at the time he drove and so can be much longer than 12 months. In particular, if you have a previous conviction for drink driving then you will be subject to the three-year minimum driving disqualification.

Anybody convicted of aiding and abetting a drink driving offence should consider arguing that the fact they did not drive is a special reason for not imposing the driving disqualification at all.

Many people accused of aiding or abetting a drink driving offence will have a defence to the allegation and so it is very important that you take proper legal advice from an experienced drink driving law solicitor. You can get that expert legal advice by calling 020 8242 4440.


  1. An interesting question, following the Supreme Court/Privy Council's decision in Jogee and Ruddock, is whether you would actually have to /know/ that the principal was over the drink drive limit. The repeated references in Jogee to knowledge (presumably a settled belief) of features of the principal's wrongdoing that are necessary for it to be criminal might mean that you could be acquitted if you merely foresaw a risk of the principal being over the drink drive limit. A difficulty is that the pre-Chan Wing-Siu decision in Carter v Richardson [1974] RTR 314 is simply ignored in Jogee and Ruddock. Carter v Richardson can be read to suggest you just need to be aware that the principal MIGHT be over the limit - so (assuming a lack of justification for taking that risk) recklessness. One reading of Jogee and Ruddock is that we are presumably to gloss Carter v Richardson and say that the references to foresight, risk and awareness were either obiter dicta, or were evidence of knowledge that the principal was over the limit. It is surely not unforeseeable that somebody, in some Crown Court soon, is going to think about arguing this. (It's not the best argument - 'I thought he might be over the limit, but had my doubts! Please acquit me!')

  2. [I meant Magistrates' Court, obviously. Time for coffee.]