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Criminal Law - Complicity
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Comprehensive notes on Criminal Law in the UK, on complicity.
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CRIMINAL LAW REVISION NOTES1. INTRODUCTION:
WHAT DOES IT MEANT TO BE COMPLICIT?
• An individual may be liable for a crime committed by another by way of encouragement
or assistance, despite not performing the conduct element (the actus reus with the
appropriate mens rea) of the offence.
→ Section 8 of Accessories and Abettors Act 1861: helping or encouraging someone to
commit a substantive offence constitutes the commission of that offence.
• Should there be a distinction between these ‘accessories’ and those who perpetrate
crime? The English system operates on the basis that both should be punished for the
crime: perpetrators should be punished for the wrongs they have committed and
accessories should be punished for encouraging/ helping to commit the crime.
WHY DOES THE LAW TREAT ACCOMPLICES LIKE PRINCIPALS?
→ ACCESSORIAL LIABILITY: where an accessory (A) is liable for encouraging/ assisting a
crime. This is a form of derivative liability, whereby the accessory’s liability derives from
the principal’s (P) liability.
• Voluntary association: Dressler states that A is held accountable for P’s conduct because
by intentionally assisting him, he voluntarily identifies himself with P. His intentional
conduct is equivalent to manifesting consent to be liable under the civil law.
• Procedural and evidential advantages: the prosecution need not specify/ prove who the
principal was and who the accessory was. They can smoothly proceed to a conclusion
against parties to a joint criminal venture without fear of it collapsing due to proof, e.g.
which of the two pulled the trigger, drove the car, etc. There would also be a problem
with establishing causation otherwise, because the prosecution would have to answer
the difficult ‘but for’ question, e.g. if there were no lookout, would the burglary have
been committed?
! However, in practice, prosecutors tend to specify who the principal was and who the accessory
was.
• Moral equivalence in terms of harm and culpability: derivative liability is appropriate
where the accessory’s role is morally consistent with the principal’s. Those who instigate
crimes are as blameworthy as those who perpetrate them.
! E.g. where A hires P, a contract killer, to kill her husband.
,CRIMINAL LAW REVISION NOTES
⇒ Shachar Eldar: a person who acts with the purpose of bringing about a criminal offence and
who has the power to control whether or not it takes place cannot be morally distinguished from
the person who perpetrates the offence.
• Causal agency and cooperative association: harmful events are attributed to individual
perpetrators by way of ‘causal agency.’ Therefore, in the same way, accountability
should stretch to include those without whose skills, efforts or influence, the criminal
activity would not occur by way of ‘cooperative association.’ This ‘but for’ causal role
justifies their accessoryship, because they acted as to bring about the crime charged.
• Pragmatism: rather than legislate for different degrees of involvement, the common law
makes this a matter of prosecutorial and judicial discretion. It allows for sentencing
flexibility, meaning accessories of a crime can be punished as, more or less severely than
the perpetrators, depending on the case, through sentencing.
! Note: levels of accessoryship do not differ, e.g. keeping lookout for the principal vs. handing
the principal a gun is, in theory, the same level of accessoryship. There may only be a difference
in sentencing.
WHY SHOULD THE LAW NOT TREAT ACCOMPLICES LIKE PRINCIPALS?
• Undermining of accessorial liability: as mentioned above, the accessory may be
punished more or less severely than the perpetrators through sentencing. This conflicts
with the notion that the accessory’s liability derives from what the perpetrator, rather
than what he himself, has done. How can the accessory, therefore, be punished more or
less severely?
• Moral difference: it is problematic to equate an accessory to the perpetrator, where
there is a disparity between their culpability/ wrongdoing.
! E.g. where P decides to kill her husband by throwing a net over a swimming pool and A
suggests the use of a jute net, rather than a net made from artificial fibres.
⇒ Law Commission, ‘Participating in Crime’ (2007): it is disproportionate to tie the accessory
into the perpetrator’s crime. Instead, an accessory should be punished for their real crime, e.g.
giving moral support to the perpetrators through their encouragement and advice. There
should be a difference between accessories who act with the specific intention of helping the
perpetrator, and those who act for other purposes (see example below).
! E.g. where X sells the jute net to P, despite having overheard her plan to kill her husband,
because he does not want to lose a sale.
• Fair labelling: the offence someone is convicted of should adequately described the
kind of crime they have committed, as as explored by Ashworth.
, CRIMINAL LAW REVISION NOTES
POTENTIAL REFORM:
• Law Commission: separate offences based on encouraging others to commit crime
should be created. The offences could be differentiated by levels of seriousness and
labelled according to what the accessory actually did.
• GR Sullivan: suggests that the definition of principal offenders should be expanded to
incriminate all those who have control over whether or not an offence takes place,
whether or not they participate in its execution.
• Wilson: to elevate the accessory over the principal, rather than view them as joint
principal offenders, the principal offender could be defined as the prime mover in any
criminal activity. This means following innocent agent cases: the perpetrator is viewed as
a mere agent who does the accessory’s bidding.
• Wilson: English common law does not make a formal distinction between a person who
knowingly incites another to kill and an ordinary retailer who knowingly supplies the
murder weapon. The different degrees of influence should be dealt with by creating a
structure of offences reflecting the difference, e.g. by drawing a distinction between
causal and non-causal participation in crime, say between instigating crime, participating
in crime and lesser acts of encouragement and assistance.
⇩
2. KEY DEFINITIONS:
• PRINCIPAL: the person who perpetrates the crime, i.e. fulfils the requisite actus reus and
mens rea.
! E.g. in murder, it is the person who wields the knife/ shoots the gun; in theft, it is the person
who steals.
• ACCESSORY: a person who participates in the crime through encouragement or
assistance and becomes liable, despite not actually perpetrating.
→ Section 8, Accessories and Abettors Act 1861: “whosoever shall aid, abet, counsel or
procure the commission of any indictable offence… shall be liable to be tried, indicted
and punished as a principal offender.”
• INNOCENT AGENT: a person who commits the criminal act but without the mens rea
(e.g. they were ignorant as to their commission of a crime), without responsibility (e.g. a
mere child) or they have an excuse for doing so (e.g. duress). When the person actually
committing the crime is an innocent agent, the person inducing them to act is the
principal.
⇩
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