This set of notes contains easy-to-follow, colourful tables covering the topic of complicity/ accessorial liability in criminal law.
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Academic Source Summary/ position
Dsouza, “A Philosophically Enriched Exegesis of - attribution responsibility is separate from
Criminal Accessorial Liability” (2019) 8 UCLJLJ 1 accountability responsibility — although it may
be sensible to consider the latter once the former
has been established, neither can compensate for
the absence of the other;
- the requirements for attribution responsibility
for secondary parties are broadly similar to
those applicable to direct perpetrators, save for
the requirement for strict causal connection.
- secondary parties are usually required to have
provided some influence to establish
attribution responsibility — an agent exerts
such influence when they are a sufficient,
necessary or concurrent cause of X/ when they
influence the chances of X.
- accountability responsibility, re: criminal
blame for occurrence of X.
- theory premised on D’s choice -- relies on
the defendant’s advertence to connect her
wrongdoing to her as moral agent (Moore)
- theory premised on D's character -- draws
inferences about D’s character from her
wrongdoing, and uses her character as a
basis to blame the defendant as moral agent.
(Bayles)
- D’s culpability depends on her attitude
towards the criminal law’s advance
normative guidance in the circumstances
known to D, re: choice-based analysis —
if D actively chooses to ignore the law's
guidance, D criminally accountable;
(Dsouza)
- D’s commitment to bringing about X as an
accessory lies on a spectrum but the law does not
reflect this state of affairs in terms
- of liability ascription;
- philosophically enriched model of accessorial
liability:
- first step -- identification of persons to
whom X can be attributed;
- second step -- whether + to what extent D is
accountable for X;
- ‘in principle’ culpability -- if D makes it
her project to aid, abet, counsel or
procure P to commit X.
- extent of culpability -- suggests D more
culpable if she intended to bring X about
than if she knowingly brought X about
=> reduced convictions should be
available for the latter, e.g. shopkeepers /
the person who babysits while another
burgles a house vs. person who hires
hitman.
,* contd. - concern about this model (LC) — the forensic
advantage of secondary liability, i.e. the option to
convict D of an offence in cases where cannot be
proved whether D was P or S despite proof that D
was involved in commission of offence;
- BUT need not treat all accessories and principals
alike by default in order to maintain the forensic
advantage.
- concludes:
- it be clarified that persons who had no
influence on the occurrence perpetrated by the
principal cannot be accessories irrespective of
their personal levels of culpability, since the
occurrence cannot be attributed to them; and
- there is good (albeit not conclusive) reason to
reform the doctrinal law of accessorial liability
such that accessories are convicted of
variegated offences depending on their
personal commitment to bringing about the
occurrence.
=> law would be clear, principled and fair in
terms of ascribing criminal responsibility.
, Simester, “Accessory liability and common unlawful - abolition of joint enterprise liability left
purposes” (2017) 133 LQR 73 important gaps in the criminal law;
- previous authority on accessorial liability does
not support the conclusion that S must directly
aid or abet every crime of which S is
convicted, as per Jogee, re: demise of extended
liability for ancillary crimes;
- upon the passing of the Act, the doctrine
was modified, not abolished;
- decision in Jogee appears straightforward —
courts asserts that essence of accessorial
liability is intentional assistance or
encouragement but the court mishandled
intention;
- the Woolin intention standard will led to
undesirable results, e.g. illegal gun seller (S1)
who sells P gun knowing P may kill V cannot
be convicted under doctrines of assistance
because he only sells gun recklessly vs. same
set of facts but S2 is legal bat seller.
- neither S is sure P will kill V => cannot be
convicted under Act
- if you share Simester’s intuition that S1
should be convicted of murder but not S2,
then Simester thought that Joint Enterprise
Liability used to give us a way to reach that
conclusion. Under that rule, we could have
treated the criminality of the sale of the gun
as Crime A. S1 assisted P in this crime, with
foresight that Crime B (the murder) might
be committed, and so S1 would be an
accessory to Crime B. On the other hand,
since the baseball bat sale is not illegal, S2
would not be party to any Crime A (of
selling the bat) and so could not be
convicted as an accessory to Crime B. The
abolition of Joint Enterprise Liability leaves
this gap.
- concludes that having 2 channels of complicity
(aiding/abetting + common purpose) would
afford the law greater flexibility and moral
sensitivity when determining whether S is a
participant is P’s crime.
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