Bob tells Bill, "I want to shoot someone, but I don't have a gun." Bill gives Bob a gun. Bob then shoots Bill. (Assume that Bill survives, both are legally allowed to possess the gun, the transfer of the gun would have been legal if Bob requested it for a legal reason, and Bob doesn't shoot anyone else.) Obviously, Bob has assaulted Bill, but has Bill committed a crime?
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4 Answers
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In the notorious Spanner Case in the UK in 1987, several gay men were prosecuted for aiding and abetting consensual sadomasochistic assaults upon themselves. So the answer to your question is yes, at least in the UK.
Mike Scott
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Aiders and abetters are liable for the primary offence
Criminal Code, s. 21 makes parties to an offence liable of that offence on equal footing with the person who actually committed it:
21 (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
The purpose is to "make the difference between aiding and abetting and personally committing an offence legally irrelevant... whether a person personally commits or only aids and abets, he is guilty of that offence... and not some separate distinct offence." R. v. Thatcher, [1987] 1 S.C.R. 652.
The actus reus
The actus reus that makes one a party is to do or omit something that assists or encourages the principal to commit the offence. R. v. Briscoe, 2010 SCC 13.
The mens rea
The mens rea requires that the aider or abetter "know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed." The aider or abetter also does not need to share the perpetrator's intention. "It is sufficient that he or she, armed with knowledge of the perpetrator’s intention to commit the crime, acts with the intention of assisting the perpetrator in its commission." Briscoe.
"Criminal liability as a party to an offence... does not require that the harm in issue be foreseeable in relation to a specific identifiable individual." R. v. Natewayes, 2015 SKCA 120, affirmed in 2017 SCC 5.
Application
Bill very likely knew of Bob's intention to assault someone using a gun, and, with that knowledge, Bill did something to assist Bob in commiting that offence. This would make Bill a party to an assault.
Jen
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If any given law actually applies is for judges to decide, but on the face of it this sounds like a case of "Beihilfe" as per § 27 Strafgesetzbuch (German penal code):
(1) Als Gehilfe wird bestraft, wer vorsätzlich einem anderen zu dessen vorsätzlich begangener rechtswidriger Tat Hilfe geleistet hat.
(2) Die Strafe für den Gehilfen richtet sich nach der Strafdrohung für den Täter. Sie ist nach § 49 Abs. 1 zu mildern.
With (1) saying that anybody aiding a crime (more literally a purposefully committed illegal act) will be punished, and (2) saying the possible punishment depends on the punishment for the crime that has been aided.
(As a later addendum, the fact that Bill is the victim should not have much bearing onto the outcome, since he clearly was okay with a crime being committed; that he happened to be the victim is incidental. A German judge is also not elected and indeed completely independent, subject only to the law and his own conscience, so unlikely to respond to outside pressure. Instead this comes down to the question if Bill was aware that Bob was making a serious threat and a crime actually was planned.).
Bill can also not escape this by not starting legal action against Bob since shooting somebody is "gefährliche Körperverletzung" (aggravated assault, I think) per StGb 224, and this is an "Offizialdelikt", i.e. a crime that will be persecuted by a state attorney even if the assaulted party does not seek legal action (and this would certainly uncover Bills part in the shooting).
Following a very interesting comment by JanusBahsJacquet I tried to find out if Bill would have already aided a crime if Bob had not actually shot anyone. It seems that is very hard to answer and depends on the difference if that was a "Vorbereitungshandlung", i.e. abstract preparation to commit a crime, or a "Versuch", an attempt to commit a crime. As this source says
Der Wille desselben, ein Rechtsgut zu verletzen, muss sich zusätzlich in einem bestimmten nach außen sichtbaren Verhalten manifestieren
meaning "the intent to violate the law must manifest in a distinct visible behaviour" to determine if this was a Vorbereitungshandlung or an actual attempt.
Arguably, making threats to shoot somebody should count as "nach außen sichtbares Verhalten", so my layman's intuition would suggest that even if Bob does not shoot, Bill aided the attempt to commit a crime, which is already a criminal offence, so even if Bob does not actually shoot, Bill will still face legal consequences.
Eike Pierstorff
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Bill would be guilty of firearms offenses, too. A knife might be a more general example in Germany. – o.m. Jun 06 '23 at 15:19
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4Bill and Bob might be hunters, recreational shooters or collectors. Guns are not illegal in Germany, just regulated. But guns are certainly a lot less common than in the US. – Eike Pierstorff Jun 06 '23 at 15:21
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Even if both have a Jagdschein, handing over guns outside a shooting range requires paperwork, I believe. – o.m. Jun 06 '23 at 16:28
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1@o.m. yes, we are missing a lot of context here. But I took the question to mean "everything else being legal", and that is an unlikely, but not impossible scenario in Germany. – Eike Pierstorff Jun 06 '23 at 17:28
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@o.m. not quite. I could go to visit a friendly hunter and he might hand me his gun to clean (under his supervision) without big legal issues, even if I don't own a license. In fact, such things are required during the qualification for a firearms license. You need to prove 6 months of training in a shooting club to even apply for a license, which includes cleaning as well as theory training usually. – Trish Jun 07 '23 at 08:12
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@Trish, meanwhile Bill takes the ammo out of the separate safe to polish those. Not impossible, I guess. – o.m. Jun 07 '23 at 15:50
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Well, let's say instead of Bob and Bill we have Sepp and Walter. Walter is a Büchsenmacher ( a gunsmith), Sepp is coming to look at the new weapon he ordered. They go to Walter's shooting range, zum einschießen, and Walter hands Sepp the gun before he realizes that, while Sepp makes his threats against the usual suspects German hunters want to shoot (poachers, bikers who ride in the forest, people who light fires, cat owners etc) he is happy to shoot the next best person available. Everything perfectly legal (and matching the question), up to the point where Sepp pulls the trigger. – Eike Pierstorff Jun 07 '23 at 20:38
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@EikePierstorff this isn't really related to the question, but I'm curious why German hunters don't like cat owners? – Someone Jun 08 '23 at 22:03
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@Someone German hunters have to lease their hunting lots, and they have to maintain a certain population of live stock at their own cost, and free roaming cats eat a lot of their birds. So hunters (cannot speak for all of them, but the ones I know) do not like people who let their cats run outside. – Eike Pierstorff Jun 09 '23 at 06:13
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1@Someone I realize that above comment might sound strange of you are American. You have to remember that Germany is small for its population (85 mio in a country the size of Montana) and that there is little actual nature here; everything has been cultivated for hundreds or thousands of years. So for us stable animal populations are not something that just happens, but a matter of careful management, and the cats get in the way of that (also hunters want to eat or sell some of those points at some point, so there is economic damage if they end up as cat food). – Eike Pierstorff Jun 09 '23 at 07:18
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Sure you can. For example, you tell Bob "my spare car keys are under the flat rock by my front door." Then your car disappears, and Bob is arrested driving the car. You have aided and abetted the crime by telling Bob where to find the keys. And since you told Bob directly, it cannot be disqualified as hearsay.
David K
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1What is the crime? Bob stole your car? No he didn't since it seems you gave him permission. Bob drove drunk and crashed? Not a crime against you. – user253751 Jun 09 '23 at 12:40