Reform of Anglo-American Complicity Law: Conduct,Connectivity and Comparative Solutions

Abstract

The challenge presented by extant Anglo-American complicity law is that it intractably homogenises different participatory modalities across a broad landscape of culpability, and ultimately the controller/instigatory actor may be treated alike with the ethereal shadow marionette. It is essential to effect change, not only as a concern of appropriate legal substantive reformulation, but also to avoid capricious practical unfairness. It should not be reforms predicated on the illusory distillation of causality requirements, between assistance and encouragement provided by the accessory and direct commission of harm(s), but rather on an imputed-normative-proportionality standardisation, reviewable via evidentiary perspectives in terms of actual intercessory conduct. A critique of alternative legal system approaches to complicitous behaviour, notably the Germanic Criminal Code, provides further significant insights towards the adaptation of a new accessorial liability framework. This broadened template promulgates a synchronous and complementary original review of withdrawal precepts. A redemptive change of heart aligned with appropriate reductive criminal depredation may exculpate via reverse conduct prophylaxis. Only an individual actor who has manifestly interceded in criminal harm(s), adjudged by the jurors as moral arbiters within prescribed gradations of culpability, as addressed herein, should rank imputably in equiparated blameworthiness with the principal offender. If this equiparation is lacking, or if the criminal wrongdoing is characterised as a wholly independent action by another party, then alternative forms of potential secondary party liability must be sought – a de novo facilitation offence as propounded subsequently, and consideration of reverse burden of proof.

Surveying complicity's hazy theoretical landscape can, depending on the commentator's nerve, temperament and resilience, induce feelings running from hand-rubbing relish to hand-on-the-brow gloom. ¹

Introduction

It is important that we refocus our attention on each individual actor's degree of moral blameworthiness within complicity precepts. ² Guilt and punishment should, accordingly, cohere synchronously, and with complementarity. ³ This presents an immediate challenge to our notions of fairness and justice, in that, multi-jurisdictional complicity laws are idiosyncratic in substantively divorcing personal responsibility for direct effectuation of harm(s). ⁴ The principal offender (perpetrator) directly carries out the commission of the actus reus of the offence, but the secondary party (accessory) may only provide attenuated peripheral involvement or engagement via assistance or encouragement of the perpetrators’ crime, in effect, as an ‘incorporeal shadow.’ ⁵ An orator of hard truths would intuitively find it difficult to find equiparation of culpability and punishment in tangentially dissonant modes of participation in wrongdoing, and, yet, this is reflective of Anglo-American jurisprudence. ⁶ The aetiology of metaphorical human action does not presumptively justify liability on the part of an accessory: there is always an intervening ‘cause’ by the immediate progenitor of the criminal act. ⁷

Casuistic doctrinal reasoning has been applied to ‘connect’ the accomplice to the full crime, and alternative theoretical perspectives advanced to justify complicity and the boundaries of imputed culpability. ⁸ In truth, however, whilst different yardsticks have been applied to this elusive ‘connectivity’ conundrum, and a search for a perpetrator – secondary party common thread, it remains difficult to explain, yet alone justify. ⁹ Complicity activity is wholly different in temporal individuation, reach, and impact on the substantive offence that transpires: ‘[W]hy does the criminal law potentially equate the villainy of an Iago with the loyalty of a spouse who furnishes a lunch to her perpetrator – husband?’ ¹⁰ A fundamental issue for reappraisal is, consequently, whether we can continue with extant rules, across different Anglophone jurisdictions that treat principal and secondary party offenders alike in terms of culpability and blameworthiness. ¹¹ Moreover, whether it is still conscionable to fail to demarcate and distinguish between different types of accessorial behaviour, and intercession in ultimate harm(s): ‘punishment is rendered proportionally to culpability because this approach is considered deontologically correct.’ ¹²

In considering the ‘apposite’ conduct/ contribution requirements for secondary participation, to legitimately establish liability, we are not entering into terra incognito; fellow acamedicians have found some tillable soil for deconstruction, ¹³ but it is very surprising how limited treatment this fertile landscape has received in recent times. This stands, in contradistinction, to the extensive distillation of other hardy perennials within the criminal justice complicity garden, notably definitional fault element requirement for secondary participation, ¹⁴ and the extended common purpose doctrine. ¹⁵ A seminal debate on the extension of the conduct nexus for complicity, to fundamentally demand causality ties linking D2's aid/encouragement to the actual progenitation of harm, occurred over thirty years ago in American jurisprudence. The requirement of a sine qua non, a but-for intercessory contribution to the offence by D2, (or otherwise), was contested in pre-eminent scholarly contributions, led by Dressler, ¹⁶ Kadish ¹⁷ and Robinson. ¹⁸

At the epicentre of this significant debate, and the dissonant views articulated, was whether causation serves as an essential ‘tool’ in the accurate measurement of an actor's moral desert, and proportional punishment for the harm(s) engendered, beyond the intervening conduct of the principal offender. ¹⁹ Within domestic English law critique, KJM Smith consistently iterated that complicity liability ‘ought’ to be viewed through a prism of causality dependence: the supererogatory predicate for accessory liability coheres to their causal contribution and direct linkage to the offence that another actor commits. ²⁰ Accomplices, as Gardner asserts, ²¹ bring wrongdoing into the world via another agent (the principal offender): an accomplice is one who acts with the consequence or result that the principal commits the wrong. ²² The juxtaposition, however, as Moore has presented on a number of occasions, is that such a deconstruction of liability potentially drives a coach and horses through ‘normal’ identification of personal attributive liability, and asynchronously conflates responsibilities. ²³

A fundamental principle is that an actor is liable for individual acts and omissions, not derivatively for the explicit conduct of others. ²⁴ There is, consequentially, a resonant scalar question vis-à-vis the causality inter-section of an accomplice intertwined with culpability: ‘much of the territory currently covered by complicity could be remapped as forms of direct liability as a principal’. ²⁵ A difficulty, however, is the broad spectrum of complicitous behaviour that currently sits loosely and disjunctively within the panoply of potential secondary participation. ²⁶ It is inefficacious, and, at times, tautologous and counter-intuitive, to normatively treat inproportionate dissonant conduct as standardised. ²⁷ The hiring of a hit man to shoot to kill is viewed as kaleidoscopically similar contributory/intercessory conduct as holding a friend's baby to allow her to steal. ²⁸ It is equiparated with shouting ‘Oh Goody’ to a principal offender who stabs the victim, wholly irrespective in such a scenario as to whether this verbal encouragement makes any difference whatsoever to the harmful actions of the perpetrator. ²⁹ All types of conduct are treated as plain vanilla in terms of liability with no variegation. The challenge, and deleterious consequences, as Sullivan has cogently adumbrated, ³⁰ is that individuals such as taxi drivers, providers of otherwise lawful services, and family members with no criminal disposition whatsoever may be enveloped within the umbrella of secondary participation. They may be associated/intersect with the crimes of a principal offender, predicated on tokenistic and minimalistic acts of assistance or encouragement. ³¹

Tokenistic and minimalistic acts of assistance and encouragement ought not to be enough henceforward for accessorial culpability. ³² The extant boundary threshold for potential liability is set at an extremely low bar and ineffectual de minimis gradation: D1 only need be ‘aware’ in a generalistic and non-specific sense of D2's encouragement; no actual ‘stake’ in the crime is transformatively essential; and no requirement exists, as it should, for prosecutors to prove to the jurors, as moral arbiters, that the encouragement had any effect on the perpetrator's commission of harm(s). ³³ A recalibration of complicity precepts is urgently needed to predicate liability on morally justifiable principles. ³⁴ There needs to be an immediate de novo reappraisal to efficaciously align mode of participation synchronously with normative proportionality standardisations and to rationalise evidentiary attribution before jurors as our moral arbiters. ³⁵ This reattribution should be cast within parameters of reasonableness to justify inculpation, and with an attenuated reverse burden onus. It is important to reflect pragmatically on the secondary party's actual intercession with the completed crime(s) and to adapt moral blameworthiness reconceptualisations, including an examination of the degree of hegemony or control over others. ³⁶

Modes of complicitous behaviour ought to be considered afresh, reviewable via an original ‘quasi-excusatory’ lens that is normatively akin to denunciatory acts of an effective withdrawal, and with parallel syllogisms for reform optionality. It needs to be asked of jurors, as moral arbiters, whether D2 acted with a ‘particularly blameworthy mindset’. ³⁷ Parity of culpability, or otherwise, between principal offender and accessory needs to be recast, and dissonances in moral culpability translated into a transformational reappraisal of inculpatory/non-inculpatory behaviour. ³⁸ It is necessary to re-examine the shoals of culpability, of personal responsibility, and of criminalisation itself, providing a more fundamental binomial role for D2's ‘actual’ intercessory conduct, beyond causality or illustory associated connection(s). ³⁹ Anglophone jurisdictions have repeatedly made antediluvian judicial references, and incantations, to a need for causation/connection between D2's conduct and D1's criminal wrongdoing. ⁴⁰ The pithy reality, however, is that, other than for procurement, ⁴¹ or for overwhelming supervening acts attributable to a principal, ⁴² causality ties are not relationally attributive. A far stronger synergy is required between delfacatory conduct and criminal harm(s).

Complicity liability is further deconstructed in the sections that follow: (i) a critique of the theoretical underpinnings of secondary participation in crime, and the true nature of derivative liability; (ii) conduct for complicity liability is recast in terms of withdrawal precepts, and alignment on an imputed-normative-reasonableness-assessment of intercessory criminal behaviour; (iii) a comparative review of alternative criminal law legal systems, notably Germany, adducing new reform pathways for complicity with standardised contemporary solutions; and (iv) a new imputed proportionality framework for complicitous behaviour, creating a bespoke facilitation offence, an original recalibration of evidentiary perspectives, and controversially promulgating adventitious benefits appurtenant to reverse burden. An optimal reform template is propounded in the conclusion section, with a renewed focus on the level of control or dominance between individual criminal actors, and a reconstituted system predicated on offence definition, guilt, and culpability. It is quintessentially significant to reconstitute the manner in which an accessory is embedded in the planning or commission of the crime and the intercessory nature of their conduct. The time is ripe to positively reformulate the unconscionable ‘disgrace’ of definitional conduct element requirements (or non-requirements) for complicity that Dressler charted over thirty years ago. ⁴³

Imputed Proportionality and Personal Responsibility: The (Non)-Derivative Nature of Complicity

Anglo-American complicity theory is rooted in derivative liability. ⁴⁴ There is a fundamental requirement to establish a common nexus between the criminal wrongdoing of the principal actor, and a co-relating thread between the accessory's conduct and the effectuation of particularised harm. ⁴⁵ The perpetration of the criminal wrong itself operates transformatively as a catalyst for potential secondary participation liability. The implication, and derivation, is that complicity law is sui generis in running contrary to traditional notions of individuated responsibility for the ascription of criminal wrongdoing. ⁴⁶ The required ‘linkage’ or nexus between D1 and D2 to consequentially establish accessorial liability, and the theoretical justifications for inculpation, remains opaque and open to contested challenges. ⁴⁷ The theoretical explanations for such non-traditional individuated responsibility, as KJM Smith stated, ⁴⁸ broadly fall within two generalised categorisations for debate: liability that is predicated upon, ‘consensual, agency or ratification notions’ ⁴⁹ ; or, alternatively, an ‘inchoate or risk-based account, with the principal offence primarily serving an evidential function’. ⁵⁰ What, however, is suggested herein is required instead is a more nuanced and comparative legal system review of complicity theory. An evaluative critique that proportionally focuses on the accessory's actual delfacatory acts of assistance or encouragement in a real-world sense, an evidentiary perspective that legitimately transmogrifies how D2 intersects in the criminal harm(s) propagated, and morally justifies the attribution of personal liability.

Complicitous Behaviour: Agency and Forfeiture of Personal Rights

A number of commentators have drawn parallels between the derivations of complicity liability, and the nature of civil law agency. ⁵¹ Attribution of liability is articulated as predicated upon reciprocal ideological touchstones of principal and agent: ‘every act done in furtherance of a common intent by each of them is, in law, done by all’. ⁵² Consensus is primordial within civil law agency precepts, in the contextualisation of the principal assenting, in toto, to the actions of the agent, and obligational reciprocity on the other side. ⁵³ In contradistinction, within secondary participation, it is eminently feasible, and often factually apposite, that the accessory operates wholly outwith the knowledge or consent of other criminal actors. ⁵⁴ Consensus is not inferentially required, or tangentially linked to, criminal modes of secondary participation in a crime. ⁵⁵ Theories of apparent or ostensible authority, central to civil law agency and commercialisation of transactions, are not relationally relevant to complicity. ⁵⁶ This bifurcated importational divide between complicity and agency prompted Sayre to state that, between the two fields of law, there seems often a disparity of thought, and, consequentially, that, ‘developments in the one field have not easily penetrated the other’. ⁵⁷

There is a clear divide in the principal/agent roles in civil and criminal law in terms of ‘responsibility’ for the effectuation of action(s). ⁵⁸ The positions are juxtaposed and reversed. In civil law agency, in terms of ‘responsibility-producing action’, ⁵⁹ the agent is derivatively empowered via the actions of the principal, and the latter is constitutively in charge. ⁶⁰ The opposite ‘power’ balance resonates in complicity, and alternative rationales apply for ascriptive responsibility, empowered authority, and imputation of liability. ⁶¹ Moreover, in a number of presentational factual metanarratives within complicity, there is no prior collaboration, or any representational consensus between D1 and D2, in any shape or form; the agency is not the theoretical predicate for inculpation, nor is it suitable or pervasive for adaptation. ⁶²

Dressler has extended the conceptualisation of agency to affirm, in part, that it is arguably justifiable to punish an accomplice, akin to a perpetrator, because of their ‘forfeited personal identity’. ⁶³ These personal rights are lost when, in effect, D2 purchases a ticket for inculpation via propagation of criminal wrongdoing. The analysis is that the accessory's volitional election to interpose themselves in the criminal actions of another, traducing the boundary gradation of liability, means that D2 articulates, in effect that, ‘your acts are my acts’. ⁶⁴ The co-relation is that, accordingly, the accessory has forfeited their personal identity, and correspondingly, abrogated their rights to be assimilated as an independent individual actor: ‘moral distinctions between parties are rendered irrelevant’. ⁶⁵ The challenge, however, as Dressler cogently acknowledges is that, beyond perfunctory incantation of forfeiture of personal identity, there remains a fudged panoply of harmful conduct to decipher and recalibrate, coalescing around the significance and import of variegated moral distinctions in conduct. ⁶⁶ Dissonant modes of participatory engagement should demand dis-similar moral reprobation. ⁶⁷

Calibration of personal dangerousness, extended beyond forfeiture of individual rights, is absolutely crucial vis-à-vis criminal responsibility, and liability. ⁶⁸ An accomplice, in truth, is often not as dangerous, as culpable, or as blameworthy as the principal who directly effects the offence commission. ⁶⁹ It is, thus, essential to positively calibrate D2's actual conduct, their different individual acts of assistance and encouragement, to proportion degrees of inculpation. ⁷⁰ It is illogical to treat the instigation of killing by another in a similar ‘personal forfeiture’ vein to the provider of food as sustenance to their wrongdoer partner. ⁷¹ A theory of complicity, predicated simply on personal forfeiture of rights by any delfacatory accomplice, is counter-intuitive. It is not ‘just’ about obfuscation of personal rights, but about the scope of engagement (or otherwise) in the criminal harm(s) effected. ⁷²

The primordial need to proportionally recognise how an accessory actually intercedes in the harm brought about by others stands in contradistinction to an alternative theory of complicity liability predicated on a change in normative position by D2. ⁷³ The change in normative position theory has been applied within extended common purpose doctrine and parasitic accessorial liability inculpation, ⁷⁴ but it has been suggested it could apply more broadly to justify complicitous behavioural liability. ⁷⁵ The predicate is that a culpable accessory may have forfeited any entitlement to proportional punishment to their past harm-doing and individuated culpability gradation, because of a change to their normative position in criminal engagement. ⁷⁶ The derivational effect is that the secondary party actor has opened up liability for unintended aggravated consequences. ⁷⁷ It runs counter, however, to a substantial contribution to harm standardisations, appropriate culpability thresholds, and legitimate punishment ⁷⁸ : ‘it is empirically absurd and normatively unacceptable to interpret every decision to commit a serious crime as an intentional waiver of the right to proportional treatment’. ⁷⁹

Abrogation of Complicity: A Culpability–Risk Model and Enhanced Dangerousness

An alternative perspective, advanced, in part, by Sullivan, ⁸⁰ is to look to a culpability–risk model, addressing the enhancement of the risk of the dangerousness of the principal actor. ⁸¹ The risk/dangerousness model assumes that the accomplice is liable because her participation, via acts of assistance or encouragement, has increased the likelihood that the principal actor will commit criminal harm(s). ⁸² The dilemmatic choice remains, however, as to why we should hold the accessory fully responsible for criminal harm(s) that are caused and effected by another party. ⁸³ Why is the same amount of proportional responsibility imposed on a secondary party? This is not fully answered by a culpability–risk framework. ⁸⁴

Sullivan's extended culpability–risk template advocates the potential abolition of complicity doctrine per se, and an abrogation of the principal/accessory distillation. ⁸⁵ This recalibrated model extends the definitional ambit of the principal offender to encompass all offence contributions which fall within the behavioural umbrella of ‘outcome responsibility’ conduct. ⁸⁶ This is a broadened variant of Dressler's substantial participation framework for complicitous liability. ⁸⁷ The challenge, in both adaptations, however, is to identify across a continuum of intercessory complicitous behaviour by secondary party actors when the evidentiary touchstones of ‘determinativeness’ and/or ‘substantiality’ pertains. ⁸⁸ It remains subject to conjecture as to which factorisations, and inculcated behaviours, are relationally significant. ⁸⁹ A reciprocal issue that of effective attribution of liability, applies to an instrumentalist model of liability advanced by Alexander, Ferzan and Morse. ⁹⁰ An accomplice is recategorised as simply creating a culpable ‘risk’ that harm will occur, equitable to inchoate conduct. ⁹¹ Constitutively, this template abolishes complicity doctrine and punishes all non-perpetrators for what they have done – tangentially wrongful risk-taking. ⁹²

A utilitarian calculus of wrongful risk-taking, a model predicated simply on enhanced dangerousness via complicitous behaviour per se, is wholly insufficient as a comprehensive substantive underpinning for accessorial liability. ⁹³ There is no comparative statistical research that properly addresses the differential dangerousness of offenders, nor any detailed exploration of impugned theoretical ramifications. ⁹⁴ What is required instead is a far more nuanced and multi-textured conceptual analysis of actual complicitous conduct, and effectuation of harm: ‘[H]arm or actus reus of the crime is the indispensable justification for punitive intervention’. ⁹⁵ Harm is the representative measure of the complicitous participant's level of legal guilt, and of merited punishment: it acknowledges the threshold gradation to which societal moral equilibrium has been irreducibly altered. ⁹⁶ It is vital to effectively address the personal responsibility of each individual criminal actor that morally justifies inculpation.

Complicity: A New Theoretical Model – Normative Conduct Reappraisal and Evidentiary Perspectives

It is necessary to look beyond extant theoretical perspectives that have been addressed, or adapted, to complicity liability, and reappraise de novo optimal categorisations. An imputed-normative-proportionality standardisation should be promulgated, a reconceptualisation of complicitous behaviour, that legitimately demystifies responsibility and culpability in a far more nuanced and coarse-grained ideologically relevant manner. Causality ties do not generally provide a universalist and pervasive nexus between principal/accessory, ⁹⁷ outwith cases of procurement, ⁹⁸ or as subsequently suggested herein, as a quasi-exculpatory reverse burden intercession, where the ‘acts’ of the perpetrator are demarcated as, ‘an overwhelming supervening event’, ⁹⁹ inuring D2 from aggravated consequential liabilities. ¹⁰⁰ Causation is inapposite, and often counterfactual, as a leitmotif of accessorial inculpation: ‘D1's actions serve as a barrier through which the causal inquiry cannot penetrate to hold the first actor liable … the doctrine of complicity fills the doctrinal gap for result crimes.’ ¹⁰¹

An imputed-normative-proportionality standardisation, that genuinely reflects delfacatory acts of assistance or encouragement which make an influential difference to effected criminal harm(s), would efficaciously address notions of the moral desert for inculpation, and personal responsibility for liability. It deontologically focuses in a wholly apposite manner on relational culpability, behavioural ‘fault’ in conduct by an accessory across a continuum of differentiated actions, and is reflective of real-world intercession/contribution to criminal wrongdoing. This new template proposal, explored subsequently, looks to the jurors, as moral arbiters, of complicitous influential behaviour. It is reflective of an evidentiary theory of liability that Robinson, ¹⁰² in part, has generally articulated, balancing competing interests of fairness and utility, and consequentially may be subject to some controversy given its utilitarian open-textured imputations: ‘[C]riminal law permits the imputation of both the objective and culpability elements of a crime … it imposes liability even though the defendant has not satisfied all the objective elements of an offence’. ¹⁰³

The adaptive imputed proportionality recalibrated test that is propounded concentrates normatively on complicitous ‘fault’ in behaviour, set against graduated threshold norms. It focuses on comparative lessons derived from the adventitious Anglo-American implementation of elements of the German Criminal Code that makes a transformatively significant binary divide between two dissonant categorisations of secondary participation. ¹⁰⁴ The instigator of criminal conduct is defined and interpreted, as an individual who may have control or hegemony over the actions of others, and who ‘causes’ the perpetrator to effect the commission of the criminal wrongdoing. ¹⁰⁵ There is a requirement for ‘direct’ communication between perpetrator and accessory, and psychological control is required. ¹⁰⁶ Alternatively, and with a radically differentiated intercession in effected harm, will be the aider who simply facilitates the wrong of another individual actor, via emboldenment, influencing their conduct in a more attenuated manner, through the provision of succour, security and support. ¹⁰⁷ Consequently, a more indirect influential connection is prescribed, but with a co-terminous mandatorily reduced sentence, properly aligning and cohering with ‘legitimate’ culpability and responsibility norms. ¹⁰⁸

The imputed-normative-proportionality framework, adapted and proposed herein, is reflective of bifurcatory accessory conduct: a divide between the scylla and charybdis. ¹⁰⁹ A secondary party who intersects in the criminality in a fundamentally contributory manner, instigating the offence, or significant conduct that materially aids the perpetrator, are adduced on one side of the scales. Transformatively, alternative and more minimalistic aid and encouragement, peripheral in terms of facilitation, is cast through a different lens and requires iteration of a wholly new offence model, reviewable on the evidence in terms of actual engagement. ¹¹⁰ This framework, set in a comparative contextualisation, should examine the nature of the interest the criminal actor has in the result, the scope of the accessory's participation in the criminal act, and the control, or otherwise, that the secondary party had over the effectuation of harm(s). ¹¹¹ There needs to be charted a new type of bespoke facilitation offence, specifically calibrated and implemented, to embrace ethereal and non-significant participatory intercessory contribution to harm. Moral desert, culpability gradation thresholds, and personal responsibility for participatory wrongdoing need to be recast in terms of synchronous and aligned new theoretical perspectives. ¹¹²

Modes of Participation and Moral Blameworthiness: A Synchronous and Complementary Review of Instigatory and Renunciatory Conduct

It is important to focus on how an accessory intersects with the harm(s) effected by the principal offender: connectivity via assistance or encouragement precepts represent an avowal of wrongdoing to justify criminalisation. ¹¹³ Equally, a secondary party who repents, disavows, and seeks to withdraw their delfacatory conduct prior to offence commission may break the threshold gradation of culpability connectivity. ¹¹⁴ Ex post facto reconceptualisation of negating conduct provides a kaleidoscopic continuum to standardise exculpatory behaviour. A dualistic reconsideration of inculpatory/exculpatory conduct within complicity engenders a deterministic framework for the promulgation of broader causation/contribution principles as legitimate pathways to liability. ¹¹⁵ Renunciatory and instigatory contributive acts of assistance or encouragement should be considered afresh, and as complementary, to properly deconstruct modes of participation and moral blameworthiness.

The criminalisation process takes on heightened significance when we factorise redemptive conduct on the part of an individual that may or may not act as a withdrawal defence to neutralise earlier complicitous behaviour, and consequential derivative inculpation. ¹¹⁶ It is submitted herein that there should be the propagation of a new standardised template for both intercessory assistance and encouragement, aligned and deconstructed in complementarity with withdrawal principles. This new joint framework should be predicated on a synchronous reasonableness-imputed proportionality assessment of both inculpatory and exculpatory individual conduct.

Withdrawal Precepts and Quasi-Excusatory Defences

The conceptual edifice appurtenant to withdrawal fits within the realm of quasi-excusatory defences and reduced culpability. ¹¹⁷ Secondary participation in crime, effected through D2's assistance or encouragement of wrongdoing, may arguably, similarly be viewed through a spectrum of behavioural engagement that facilitates quasi-excusatory and reduced culpability outcome determination. ¹¹⁸ Minimalistic and tokenistic encouragement of crime is not the same as instigation and material assistance, nor should relational (dis)-equivalence continue to skew liability, nor inapposite fudged equiparation continue to prevail. ¹¹⁹

A pre-inculpatory interlude prevails for withdrawal from participatory engagement, wherein a redemptive change of heart, aligned with appropriate reductive criminal depredation may exculpate via reverse conduct prophylaxis. ¹²⁰ Adventitiously, reverse conduct prophylaxis may be adapted to also apply to temporal individuation of the accessory's actual intercession/contribution to criminal wrongdoing more broadly. This posits a more extensive evidentiary review of delfacatory conduct, traducing T3 (commission of harm stage), and reconstitutively the contributory conduct of the secondary party at T1 or T2 stages in a continuum. ¹²¹ Participation in crime as an accessory requires ‘fault’ in the actual conduct itself, beyond simple but for causation. As Toulson L.J. asserted in the Supreme Court in Hughes, ¹²² reviewing the nature of causality, the progenitation of harm must be connected to something ‘objectively wrong’ ¹²³ about the individual actor's conduct. Causal salience applied, but significantly there was a fundamental requirement, in a causing death whilst driving scenario, for ‘something open to proper criticism in the conduct of the defendant’: ¹²⁴ connectivity plus ‘fault’ in conduct as a leitmotif for proportionate liability. ¹²⁵ This coheres with an appropriate moral blameworthiness standardisation for complicitous behaviour: a normative assessment by jurors of fault gradations (or otherwise) attached to dissonant types of conduct. It represents a lodestar for the potential parallel syllogism of instigatory and renunciatory re-conceptualisation of liability and the parameters of disavowal. ¹²⁶

In determining prohibited and reductionist behaviour there are dilemmatic choices to be made in terms of temporal individuation of liability across an extended time frame, and layered within a continuum of conjoined events. ¹²⁷ As for accessory liability, in general, it is significant to examine the theoretical underpinnings of withdrawal and redemptive renunciatory conduct. ¹²⁸ The precise legal topography for withdrawal has polarised debate, but, in truth ought to be viewed through a lens reflecting reduced culpability and/or societal dangerousness of the actor. ¹²⁹ As with consideration of the material contribution that D2 actually makes to D1's defalcations, there ought to be a primordial reflective evaluation of the moral blameworthiness of each respective individual actor. Parity of culpability should apply as a moral barometer to assuage guilt, or to identify the extent of blameworthiness and criminalisation of acts engendered by a materially contributing wrongdoer, or to recalcitrantly negate harm. ¹³⁰ The pithy reality is that the accessory who instigates the perpetrator to kill their partner by payment is not the same in terms of ‘blameworthiness’ in any real-world sense, as the secondary party who provides succour to a criminal wrongdoer by providing a packed lunch or a fresh shirt. ¹³¹ Nor does behavioural engagement equate to the supplier of bank plans to others who then seeks to disavow by warning authorities of a future burglary. ¹³²

Imputed liability is the legitimised philosophical justification that embodies secondary participation and indirect intercessory conduct in criminal harm(s). ¹³³ Contemporaneously, the reduced social dangerousness model of withdrawal exculpation takes as a starting proposition that individuals who have commenced upon a criminal enterprise are amongst a cadre to be feared by society in that they have failed to control internal regulatory intuitions of right and wrong as a bulwark to set against criminal propensity. ¹³⁴ In essence, they have exposed themselves as requiring external societal control mechanisms imposed by criminal law. Their injudicious proclivities, and skewed lack of control functionality, evidenced by initial engagements, have been recalibrated to a degree if they unequivocally and genuinely take steps of cessation. ¹³⁵ Their penitent behaviour may counter-act complicitous behaviour, and, consequently, in terms of present or future depredations, they do not present as great a societal danger, or at least present a reducibly minimal threat. ¹³⁶ Their rebalanced internal controls have correspondingly been presented as meeting a more acceptable threshold gradation, and, thus, the necessity of external control via criminal sanction has been obfuscated: ‘spontaneous abandonment show[s] that the offender is not dangerous, or is so in an insignificant degree’. ¹³⁷

Participatory complicitous conduct and repentant negation of prior engagement align synchronously together in terms of inputted proportionality, degrees of moral blameworthiness, and societal dangerousness characterisation. ¹³⁸ The redemptive change of heart of the accessory means that imputed criminal liability for complicity may be inapposite as the ‘flame of dangerousness’, created by initial attitudinal behaviour has been doused to undo or prevent harm. ¹³⁹ The reasoning here is that the individual, considered inwardly on a prognostic basis, has revealed him or herself as possessing more limited socially dangerous characteristics, and, therefore, should be inculcated a quasi-excuse. ¹⁴⁰ Tokenistic or minimalistic intercession in wrongdoing by limited acts of assistance or encouragement should co-terminously reflect reductionist culpability threshold, via mandatory lower sentences, or effectuation of an alternative facilitation offence. ¹⁴¹

In general terms, an excuse is a defence that involves concession that the action is wrong, but nonetheless, the individual's characteristics, or prevailing state of affairs, indicate that they should not be inculpated for their infractions, or materially at a different threshold (and a different crime), than the instigator or perpetrator. ¹⁴² It is not that the assistance or encouragement, intercession, or acts of withdrawal, are justified in any terms of net harm, but rather that the penitent and redemptive situation presented by the actor, or tokenistic (in) effectual contribution, should potentially excuse, and this is for adjudicative interpretation by fact-finders. ¹⁴³ The recalibration is intrinsically demonstrative of a quasi-excuse, in that, although the defendant cannot be said to be subject to some form of internal incapacity or external impairment preventing his actions from being broadly characterised as the free exercise of informed choice, ¹⁴⁴ a positive premium should exist for a genuine change of heart that is driven by a voluntary motivation of contrition. ¹⁴⁵ In complementarity, trivial acts of assistance or encouragement are less materially intercessory in wrongdoing and effected harm, and require dissonant non-equiparated culpability to the direct progenitors of offences. ¹⁴⁶ This provides a more satisfactory conceptual basis for lack of (or reduced) criminal penalty, in that, as a defendant of lower culpability, who is less socially dangerous, a different threshold categorisation should apply. ¹⁴⁷

Reverse Conduct Prophylaxis and Accessory Liability: An Individuated Normative Assessment

A reformulated template is provided in this article for complicity, identifying the requirements of a proportionality test for fact-finders in terms of gradations of excusing/non-excusing conduct. A manifestly normative question is stipulated as to whether the individual actor's repentant behaviour was reasonable in the circumstances. ¹⁴⁸ A corollary of this postulation is whether D2's intercession in criminal wrongdoing was sufficiently blameworthy and culpable to impute liability. ¹⁴⁹ The ‘price of exculpation’, and the ‘cost of promotion of harm(s)’, should be standardised within an imputed proportionality – reasonableness pervasive framework. ¹⁵⁰

The threshold gradations for withdrawal are not easy to satisfy: more repentance is irreducibly not enough, and depredatory conduct needs to be wholly countermanded, not simply discontinued. ¹⁵¹ A continuum scale across a spectrum of criminal association may beneficially be promulgated in terms of threshold levels of dis-engagement, and comparative redemptive abatement. ¹⁵² This scalarity mirrors, in counterpoise, the metanarrative of instigatory conduct, and degrees of associated intercession in harm(s). Judicial precepts reveal a higher redemptive threshold level will apply to those who provide material assistance or instigation to D1, but reduced threshold levels of ‘proper efforts’ to undo previous harm will qualitatively apply to those who have simply provided encouragement. ¹⁵³ Flexibility may apply to individual circumstances in terms of required direct or indirect countermands. ¹⁵⁴

Consider, by way of illustration in this regard, a hypothetical postulation involving a multi-party common enterprise to plant a bomb in a shopping precinct to raise awareness of a terrorist organisation, but with risk to life. The level and mode of participatory engagement may vacillate across a wide continuum, and the reasonableness-proportionality nexus requirement for qualitative acts of accessory withdrawal should shift according to normative fact-finder deliberations. It, reflectively, presents a de novo recategorisation of how positive acts to aid/encourage wrongdoing should beneficially be empathetically reconstituted in harmony with withdrawal: (i) A, with knowledge of the common purpose, makes a meal for the gang on the day of the bomb detonation; (ii) B, a shopkeeper, again with direct contemplation, sells the balaclava disguise; (iii) C supplies the bomb-making equipment, interested only in commercial profit; (iv) D instigates and counsels the plan of criminal action; (v) E makes the bomb in preparation; (vi) F supplies the petrol for a get-away vehicle; (vii) G drives the car to the shopping precinct; and (viii) H and I enter the shopping precinct to plant the bomb, but are apprehended by a security guard, H shouts to I to leave and abandon their plan, but I shoots the guard, and they decamp.

The above hypothecation reveals that different levels of participatory engagement (A to I) will be co-terminous and coalesce together with determinative redemptive behaviour, and facilitation of withdrawal. The required countermands for different modes of participation may be direct or indirect, and incorporate direct physical intervention or weapon retrieval at one end of the scale, to warnings to law enforcement authorities or to potential victims at the reduced level. ¹⁵⁵ It is suggested herein that the following gradations and demarcations form part of our proportionality-reasonableness nexus for withdrawal, and synergistically indicate dissonant culpability and moral blameworthiness classification for accomplices with alternative imputation. ¹⁵⁶

In reviewing the postulated scenario a dichotomy exists between co-adventurers and mechanical assisters, ¹⁵⁷ in that a fundamentally higher threshold level of renunciatory conduct applies to the former category of participants in crime. If D2 acts as a co-adventurer and has provided material assistance, then direct countermand should be required in terms of retrieval of the weapon, or physical intervention, proactively to protect the victim, including restraint of D1. ¹⁵⁸ If the ‘tools of the crime’ are supplied by D2 then more is needed proportionally for an effective withdrawal. ¹⁵⁹ The reasonableness–proportionality standardisation dictates that an enhanced level of redemptive counter-action is needed effectively to absolve D2. ¹⁶⁰ This resonates more broadly with adventitious Germanic perspectives on accomplice liability, explored subsequently. ¹⁶¹ A far broader conceptualisation of co-perpetrator is inculcated, embracing significant contribution at the ‘planning’ stage of wrongdoing and a broadened appraisal of the degree ¹⁶² of individual hegemony as an instigator. Binomially, accessories who provide lesser facilitative support to effected wrongdoing are demarcated via mandatorily receiving a reduced sentence proportionally reflective of culpability norms, and dilution of personal responsibility. ¹⁶³

A more onerous standard will apply to the instigator of harm, and within the German criminal justice system, it needs to be demonstrated that their engagement has been wholly neutralised. ¹⁶⁴ The apposite guiding principles in English domestic law were established in Gallant, ¹⁶⁵ where D2 had instigated the violence, and it was legitimately determined that ‘[I]n those circumstances, assuming that the attack started as a joint enterprise, he clearly would have to do more than merely walk away in order to demonstrate that he was withdrawing from any further participation’. ¹⁶⁶ A higher threshold is presumptively engaged herein as the instigator needs to withdraw from a duality of inculcated and co-terminous participatory engagement; this duality embraces both the common purpose itself and the responsibility to effectively countermand the initial encouragement (emboldenment) to others that were furnished at the outset. ¹⁶⁷

Intercessory Conduct and Disavowal: Complementary Standardisations

A different perspective ought to apply where an accessory has simply provided limited encouragement, or basic agreement, to the commission of a crime. When such ethereal touchstones are inculcated the ‘price of exculpation’ for withdrawal, and, significantly, the ‘cost of inculpation’ for accessorial liability should be lowered. ¹⁶⁸ Kadish illustrated that complicity doctrine raises a question as to what it truly means for the accessory's intercession to have made a difference. ¹⁶⁹ No requirement exists to show that the result would not have occurred without the secondary party's actions, but extant law posits that ‘any influence or help suffices for liability’. ¹⁷⁰ As such, a shout of encouragement to D1 to attack V, but D1 is deaf, is constitutively futile for imputed liability, albeit alternative inchoate crimes are engendered. ¹⁷¹

The corollary, as presented in the hypothecated scenario above, is that for withdrawal the ‘price’ of exculpation may not be as high as taking additional steps to prevent the commission of the crime, but penitent behaviour may involve strictures of indirect countermand. The countermand, dependent on prevailing factual variants in different circumstances, may incorporate either notification to law enforcement authorities, or to the victim, or attempted comportation with both sets of reductionist disengagement. ¹⁷² The preferred analysis of withdrawal, as a quasi-excuse, extrapolated from derivations of reduced social dangerousness, should allow fact-finders to consider an individuated proportionality standardisation within a normatively compartmentalised set of indicators to indirect countermands. ¹⁷³ A parallel syllogism should reciprocally apply for instigatory acts: the ‘cost’ of inculpation for trivial acts of aid or encouragement needs to be fundamentally reappraised in terms of moral blameworthiness equiparation. ¹⁷⁴

The proportionality test will clearly not apply when the pre-inculpatory interlude has expired, and the possibility of withdrawal is no longer timely. ¹⁷⁵ The constitutive timeliness (or otherwise) of an attempt to withdraw from complicitous joint enterprise activity was vividly exemplified in the recent determination in Mitchell, ¹⁷⁶ before the appellate court. A violent altercation occurred in the car park of a public house, initiated by a dispute between rival bookings of a taxi cab. The factual evidence was unclear, but Mitchell (D2) had either instigated or encouraged the initial attack, and then a lull occurred in the violence whilst D2 was looking for a missing shoe, before the victim was fatally punched and kicked by others. ¹⁷⁷ In a case of spontaneous violence, inflicted by a group of participants, D2 had engaged in the first attack, not the second, but only a short time period accrued between the two assaults, and consequently the conduct during the course of the earlier attack still represented a ‘significant and operative cause’ of death. ¹⁷⁸ The instigatory intercessory acts of encouragement by the accessory, embracing positive encouragement of wrongdoing, proportionally justified censure for murder: no effective renunciatory disavowal by direct or indirect countermand was dissociative for culpability gradation. ¹⁷⁹

Modes of instigatory and renunciatory behaviour should be reviewed through a complementary and synchronous lens to effectively deconstruct moral blameworthiness. ¹⁸⁰ Conduct of an irreducibly minimal nature is inadequate to meet the threshold test: perfunctory verbal disclaimers of liability ¹⁸¹ ; failure to attend on the day of the commission of the criminal purpose (omission) ¹⁸² ; or fleeing from the scene of the crime ¹⁸³ are all ineffectual manifestations of imputed countermand. Normatively, these types of limited remedial disengagement are not sustainable or adequate as a vignette of redemptive behaviour: the ‘price’ of exculpation has not been satisfied. ¹⁸⁴ Minimalistic and tokenistic acts of disavowal do not negate liability. It is capricious, accordingly, to treat limited acts of assisting or encouraging harm(s) as ranking pari passu in culpability equiparation to the responsibility of the actual progenitor of the criminal wrongdoing. ¹⁸⁵ There is not the same normative proportionality or imputed responsibility, and to suggest otherwise is the antithesis of any fair and just Anglo-American criminal justice system(s). The review in this section, originally addressing the penumbra of instigatory and renunciatory conduct, is taken forward in the evaluative critique that follows, considering alternative multi-jurisdictional perspectives on complicity and the apposite parameters and co-relation of trivial/non-trivial intercessory acts. A clarion call is made for reform to holistically and transparently adapt a new overarching complicity framework. ¹⁸⁶

A Comparative Review of Alternative Legal Systems: Optimal Standardisations and Contemporary Solutions

The German Criminal Code: An Anglo-American Reform Pathway

Anglophone criminal justice legal systems would benefit from a closer examination, and comparative extirpation, of Germanic precepts appurtenant to complicitous behaviour. ¹⁸⁷ Although to contextualise, both Anglo-American and German criminal law systems have adopted a perpetrator–accessory dualistic standardisation of modes of participatory engagements, far more enlightened perspectives on culpability, actual intercessory conduct and personal responsibility have been adapted in the German Criminal Code. ¹⁸⁸ This has occurred substantively after a period of significant historical reflection, and academician commentaries vis-à-vis theorised optimality. ¹⁸⁹ There is a far more advanced imputed-normative-proportionality assessment of inculpatory conduct, differentiated attributive responsibility, and mere tokenistic or minimalistic engagements in criminal wrongdoing are disposed of via a ‘quasi-excusatory’ reconstitutive realignment of blameworthiness, calibrated through a mandatory sentence reduction. ¹⁹⁰

Modes of Participatory Engagement

German criminal law makes a fundamental distinction between three levels or modes of participation in a crime: perpetration as a principal ¹⁹¹ ; abetting/instigation an offence ¹⁹² ; and aiding, ¹⁹³ as a widened formulation of secondary participation. ¹⁹⁴ The German conceptualisation of co-perpetration, Mittaterschaft, is significantly wider than Anglo-American adaptations: dichotomously, there is no contemporaneous requirement that each co-perpetrator contributes ‘directly’ to the commission of the actus reus of the relational offence. ¹⁹⁵ In a broadened manner there will be material contributory sufficiency where an individual actor plays a leading role at the earlier T1 planning or preparational temporal individuation. ¹⁹⁶ The nature of the proportional contribution to criminal wrongdoing is viewed in a more coarse-grained ideological imputation manner. ¹⁹⁷

The differentiated modes of participatory engagement in German law, those of principal offender perpetration, abetting/instigating, and aiding as a form of secondary participation, are subject to further sub-division, and normative comportations with moral justificatory equilibrium. ¹⁹⁸ The first categorisation, that of principal offender intercession in harm, may be sub-divided further, as Hamdorf asserts, into a triumvirate of perpetrator delfacations: direct perpetration; indirect perpetration; and co-perpetration. ¹⁹⁹ The direct perpetrator is the individual whose conduct is directly, and immediately, co-terminous with the definitional commission of the offence, the criminal actor who effects the criminal harm with their own hands. ²⁰⁰ The indirect perpetrator, in contradistinction, is any individual who commits the offence through another, and this other person is generally an innocent agent, controlled by the auspices of the hinterman. ²⁰¹ Co-perpetrators effect the criminal wrongdoing in concert, jointly on the basis of a unilateral plan, each of them materially contributing to the fulfilment of the common illegal venture. ²⁰² The contribution of each participant, in terms of the modality of engagement, operates reciprocally and is demarcated by mutual attributive personal responsibility. ²⁰³ Interestingly, within the German Criminal Code, there is a bifurcatory approach to secondary participation, separated from other criminal justice systems: a divide applies between those who assist or facilitate the wrongdoing, and individual actors who instigate or solicit the offence in question. ²⁰⁴

A principal offender in the German criminal justice system is, consequently, phenomenologically embodied as an individual actor that can be said to ‘control’ the perpetration of criminal wrongdoing. ²⁰⁵ This is standardised as criminal conduct that is ascriptively transmogrified as the very behaviour prescribed by the statutory offence – Tatherrschaftslehre. ²⁰⁶ Germanic theoretical perspectives are heavily influenced by the hierarchical control over, or domination of the act precepts adduced by Roxin: ‘[A] person is a perpetrator if he controls the course of events, one who, in contrast, merely stimulates in someone else the decision to act, or helps him to do so, but leaves the execution of the attributable act to the other person, is a “mere” accomplice’. ²⁰⁷ The concomitant of this theorised hierarchical control adaptation is that a perpetrator, as Hamdorf articulates, may be imputed normative personal liability across a spectrum of behavioural intercessory conduct, all within the ‘controlling’ the criminal act panoply. ²⁰⁸ Liability pertains either by controlling the action itself (Handtungsherrschaft), by controlling the mind of another participant, or alternatively, and pragmatically, via the assertion of operational control. ²⁰⁹

A binomial division, with imputed-normative-proportionality policy inculcations, applies in the Strafgesetzbuch, between perpetrators and accessories who are instigators of criminal wrongdoing and, alternatively, accessories who merely ‘facilitate’ criminal conduct. ²¹⁰ Perpetrators of harm, and instigators at the earlier T1 point of temporal individuation, are treated in contemplementarity, of equal culpability and blameworthiness, viewed through the same normative contribution to harm(s) behavioural conduct kaleidoscope. ²¹¹ Facilitators, however, who proportionally intersect in the completed offence in a more tokenistic and minimalistic behavioural manner, receive a mandatorily reduced sentence – a statutory discount for ‘aiding’ murder could, illustratively, be to reduce imprisonment from 2 years to 11 years and three months. ²¹²

Normatively, in terms of imputed proportional responsibility, for complicitous behaviour, the Germanic Criminal Code has adopted significant criteria for evidentiary determination. ²¹³ These criteria, as Hamdorf has iterated, have been dispositive in instigator/facilitator threshold gradations, and coalesce within the BGH in three comportations. ²¹⁴ This important adaptive review should be reflectively significant for Anglo-American jurisprudence: ‘(1) the nature of the interest the party has in the result; (2) the scope of the party's participation in the criminal act; and (3) the control that the party had over the criminal act’. ²¹⁵ It adventitiously expedites a much more extensive and expansive determinative analysis of ‘how’ D2's conduct, in a real-world sense, intersects with criminal wrongdoing.

Secondary Participation: A Binomial Divide Between the Instigator and the Aider

An intentional and unlawful act by the perpetrator remains a supererogatory predicate for derivative accessorial liability within the German Criminal Code. ²¹⁶ As previously, adumbrated, a binomial divide then pervades the modality of secondary participation: alternative formations of either instigating or aiding criminal wrongdoing. ²¹⁷ The actus reus behavioural definitional element of instigation representationally embraces any act by D2 that ‘causes’ the perpetrator to effect the commission of the harm(s). ²¹⁸ The primordial viewpoint amongst acamedicians is that a direct nexus must prevail, some kind of effective communication between the criminal actors. ²¹⁹ The communication from the secondary party, as Krebs articulates, must present a causal, but for, relational tie, for the perpetrator's determination to bring about the wrongdoing. ²²⁰ There is a concomitant prosecutorial evidential requirement to establish a psychological contract of mutuality. ²²¹ The instigator, on the evidence, needs to directly cause the delfacatory actions of another party: ‘[A] person who has already taken the decision to commit an offence, the so-called omnimodo facturus, cannot be instigated any more’. ²²²

It is a materially insufficient contribution for instigation liability that the individual actor has simply provided an ‘opportunity’ for criminal harm to be committed by others. ²²³ Illustratively, leaving a window open with an aspiration that another breaks into a house, or abandoning a car borrowed from another with keys left in the ignition, in a locality frequented by car thieves, are postulations where inculpation is not imputably proportionate. ²²⁴ The causative facilitation requirement in German criminal law is more strictly delineated, and trammelled within a more positivistic enhanced psychological contract requirement, than under Anglo-American jurisprudential authorities. ²²⁵ A broadened proportionate contribution to wrongdoing is quintessential, direct causality ties are evidentially vital, and culpability and blameworthiness gradation thresholds, between perpetrator and instigator, are legitimately equiparated and need to be aligned pari passu. ²²⁶

Aiding and Mandatory Sentencing Reductions: Non-Causal Support and Encouragement

In the German Criminal Code, all secondary party acts of assistance that do not fall within the panoply of perpetration or instigation sit within the umbrella of Beihilfe, and purviewed definitionally as modalities of ‘aiding’. ²²⁷ The behavioural conduct that is consequentially embraced, as Krebs traduces, ²²⁸ incorporates broadened assistance to the perpetrator, that may be rendered in a physical or psychological manner: ‘[I]t needs to be rendered intentionally but does not have to be causal for the commission of the criminal offence; it suffices that the assistance facilitated it or made it safer for the principal offender’. ²²⁹ Assisting, under Germanic secondary participation precepts, operates in a far wider criminality landscape, and a broadened importation, addressing every modality of conduct which enables, facilitates, expedites, or intensifies the wrongdoing of another party. ²³⁰ There is no requirement for any direct causality ties between perpetrator and aider, no need for an explicit ascriptive nexus between D2's conduct and the commission of the primary offence by D1 ²³¹ : the conduct of the aider need not be a condition sine qua non for the effected harm. ²³² It is, however, insufficient for inculpation, as in Anglo-American complicity laws, that the secondary party is simply present at the crime scene with a positive attitude towards the commission of the offence. ²³³ A further correlation needs to apply, whereby the perpetrator is encouraged by, feels more secure because of the presence of the aider, and synchronously the aider should be aware that their presence moderates the attitudinal belief of another criminal actor. ²³⁴

In conclusion, there is much to learn from a comparative extirpation of the German Criminal Code, and recalibration of perpetrator/secondary party complicitous behaviour. An instigator is conceptualised as a secondary party but treated as a principal offender if relational causality ties to wrongs are evidentially established. ²³⁵ Aiding is prescribed a far more comprehensive definitional comporation, but in a quasi-excusatory fashion, receiving a mandatory statutory sentencing discount. ²³⁶ This ‘quasi-excusatory’ analysis resonates with an earlier critique of withdrawal, and reverse conduct prophylaxis. It also adheres to an imputed-normative-proportionality standardisation, as propounded herein, for complicitous behaviour, reviewable via a new evidentiary framework. It reflects a dissonant template that has been adapted by the BGH., coalescing around three comportationally significant factorisations that are of crucial salience: the scope of the individual actor's participation; the nature of their interest in D1's delfacations; and, importantly, their hierarchical control over the conduct of other participatory wrongdoers. ²³⁷ An optimal recalibration of liability ought to focus on how a secondary party has intersected with the criminal offence. A hierarchical reordering of culpability between the instigator (facilitator) who makes a direct physical or psychological contract with the perpetrator, and the aider, whose intercessory behaviour is more attenuated, and whose attributive responsibility is reduced, should adventitiously be standardised. ²³⁸

Anglophone Cross-Jurisdictional Analysis: A New Framework

The U.S. Approach: Secondary Participation and Modality

It is notable that a broadened contextualised review of U.S. precedential authorities reveals significant vacillations, and divided discourse, on fundamental causality ties (or otherwise) between perpetrator and accomplice. ²³⁹ As with similar Anglophone jurisdictions, complicity laws, and conduct touchstones for liability, remain subject to solipsistic ad-hoc instrumental progression, both within and between states. ²⁴⁰ The primordial theoretical and practical perspective, however, is that intrinsically there is no need for prosecutors to identify any causal nexus, any sine qua non ascriptive responsibility linkage, between D2's acts of assistance and encouragement, and the prohibited criminal harm(s). ²⁴¹ Illustratively, in State v Tally, ²⁴² discussed further subsequently, the Alabama court highlighted that, ‘the assistance given, however, need not contribute to the criminal result in the sense, that, but for it, the result would not have ensued. It is quite sufficient if it facilitated a result that would have transpired without it’. ²⁴³ In contradistinction, in Breaz v State, ²⁴⁴ the court emphasised that ‘it is necessary that there be an immediate connection between instigation and the principal's act’. ²⁴⁵ In truth, the lessons from the US, as with England, are that diametrically opposed judicial and academic commentary has been propagated over the causal ties dichotomy within complicity, the elements of materially contributory complicitous behaviour, and the parameters of an apposite theoretical landscape. ²⁴⁶

More generally, within the purview of U.S. complicity laws, has been adaptation and adoption by states of Section 2.06 of the Model Penal Code, which distinguishes fundamentally and dualistically between perpetrators and accomplices. ²⁴⁷ Perpetrators are definitionally interpreted as individuals who either commit the offence, ‘by their own conduct’ or ‘by the conduct of another person for which they are legally accountable’. ²⁴⁸ A bifurcated behavioural divide applies between perpetrators and accomplices; in that the latter party is complicitous if she solicits another to commit an offence, aids or agrees to aid another person in the commission of a crime, or fails to make an effort to prevent a crime when he had a legal duty to do so. ²⁴⁹

The Model Penal Code, adopted by a majority of U.S. states, makes it clear that an individual who encourages or helps another in the commission of the offence is complicitous, irrespective of whether they were present at the temporal point of denouement when the perpetrator representationally effected the actus reus of the crime. ²⁵⁰ It is constitutively significant that, in terms of disjunctive and unconscionable culpability standardisations the US, in synchronicity with English complicity law, but diametrically opposed to the German Criminal Code, fails to make any nuanced proportionality distinction between perpetrators and accomplices. ²⁵¹ There is a pervasive Anglo-American failure to make evidentiary demarcations that cohere to personal responsibility and moral blameworthiness to justify gradated reprobation. ²⁵² There is no punishment dichotomy between either type of participatory modality – minimalistic and tokenistic acts of assistance or encouragement may wrongly be equiparated with inculpation for instigation or co-perpetration. ²⁵³

The Canadian Approach: The Criminal Code and Reciprocal Culpability Standardisations

Extant provisions within the Canadian Criminal Code, notably Sections 21-22, cohere with Anglo-American perspectives on complicitous behaviour, conflating dissonant modes of participatory engagement in liability terms, and with irreducible synchronicity of culpability gradations. ²⁵⁴ The individual actor who actually commits an offence, and a secondary party who aids, abets, or counsels the commission of the harm, are treated as umbilically connected, and of equal moral blameworthiness. ²⁵⁵ This broadened purposive statutory approach, and straitened ideological juxtaposition concomitantly relieves the prosecution from any evidentiary burden in establishing whether a criminal act is a principal offender who directly brought about the wrongdoing, or is an individual who simply assisted, encouraged, or counselled the commission of the harm. ²⁵⁶ Participatory modality is (dis)appropriately homogenised and universalised. ²⁵⁷

A dualistic and standardised framework for participatory engagement in Canada was established by the Supreme Court in R v Thatcher. ²⁵⁸ Chief Justice Dickson asserted that, within the prevailing statutory Criminal Code, the actual perpetrators need not be identified, and that, ‘the whole point of Section 21(1) is to put an aider or abettor on the same footing as the principal offender’. ²⁵⁹ This predisposition was to eradicate distinctions at common law between principals in the second degree, and accessories. ²⁶⁰ The pragmatic outcome, outwith dissonant morally justifiable reprobation standardisations, was to alleviate the necessity for the Crown to choose between different forms of participatory modality. ²⁶¹ The corollary is that dis-adventitiously, and contrary to the triumvirate of culpability gradation levels in the German Criminal Code, within Canada, all modes of participatory engagement are traduced in one contextualisation with a disregard for more nuanced moral blameworthiness and personal responsibility evidentiary equipoise. ²⁶²

South African Perspectives: A Bifurcation Between Perpetrators and Accomplices

Jurisprudential and theoretical precepts in South African complicity law have historical original derivations from Roman, Roman-Dutch, and English doctrinal perspectives. ²⁶³ A fundamental dichotomy has originated vis-à-vis participatory modality, with a focus on pre-and-post complicitous behaviour, distilled from the actual completion of the criminal wrongdoing. ²⁶⁴ In terms of a prior engagement, a further bifurcated divide applies, as in comparative Anglophone jurisdictions more broadly, and di-sected between perpetrators (embracing also a widened ambit for co-perpetrators), and accomplices. ²⁶⁵

In this realm, Burchell ²⁶⁶ has cogently demarcated three separate postulations whereby an individual actor, within the South African criminal justice system, may be embodied as a perpetrator/co-perpetrator: (1) Where he or she personally satisfies the definitional elements of the crime, and, is, therefore, a perpetrator in his or her own right (liability is in no way accessory, or dependent on the participatory conduct of another person); (2) where he or she, although possessing the requisite capacity, and the fault element (mens rea) for the crime in question does not comply with all of the elements of the unlawful conduct in question, and the conduct of the perpetrator is ‘attributed’, or ‘imputed’ to him or her, by virtue of prior agreement, or active association in a common purpose to commit the crime in question; and (3) as Burchell iterates, a conceptualisation of imputation-where an individual procures another person, who may be an innocent or unwilling agent, to commit a crime. ²⁶⁷

A more nuanced bifurcation of co-perpetrator/accomplice liability in South African jurisprudence was delivered by the Appellate Division of the High Court in State v Williams. ²⁶⁸ Extant law adopts the classical distinction made by Judge Joubert therein, that looks to an accomplice's participatory modality through the legal prism of providing the opportunity, the means, or the information to further harm(s) by another criminal actor, but not effectuation: ²⁶⁹

[A]n accomplice is not a perpetrator or a co-perpetrator, since he lacks the actus reus of the perpetrator. An accomplice associates himself willingly with the commission of the crime by the perpetrator or co-perpetrator in that he knowingly affords the perpetrator or co-perpetrator the opportunity, the means, or the information which furthers the commission of the crime … [A]ccordingly, in general principles, there must be a ‘causal connection’ between the accomplice's assistance and the commission of the crime by the perpetrator or co-perpetrator. ²⁷⁰

What is unresolved by the determination in State v Williams, and remains problematical across alternative multi-jurisdictional criminal justice legal systems, is what is truly meant by rhetorical incantations to a requirement of a secondary party's ‘furtherance’ of harm commission by another party. ²⁷¹ The touchstones to join together ‘furtherance’ with proportional inculpation remain as certain as how many angels could dance on the head of a pin. Moreover, there is an expressly propagated assertion that there must ‘generally’ be a causal connection between an accomplice's assistance and the commission of the criminal offence. ²⁷² Again, what is actually meant here in terms of interpretive definitional elements for complicitous behaviour? It is unclear in South African precepts whether an individual actor can further or assist the commission, of a result crime, constitutively ‘causing’ the result (illustratively, death in the case of murder), and not be held liable as a perpetrator/co-perpetrator, rather than as an accomplice. ²⁷³ There is also a palpable lack of clarity in South African jurisprudential relational authorities, as Burchell ²⁷⁴ and Kemp ²⁷⁵ have adumbrated, whether both factual and legal causation are required for perpetrator/co-perpetrator liability, but only factual causation in the sense of ethereal and undetermined ‘furthering’ or ‘assisting’ the commission of a crime for accomplice liability. ²⁷⁶

In summary, it is propounded that comparative legal systems, notably Germany, provide a vitally significant deconstruction of apposite conduct requirements for complicity liability, and culpability threshold gradation. ²⁷⁷ South African complicity law, in truth, ultimately presents an open-textured and unresolved dilemmatic choice: determination of liability, either as a perpetrator/co-perpetrator or accomplice will be informed by the degree of participation (for solipsistic ad hoc future judicial determination) before the completion of the crime. ²⁷⁸ It remains important, as considered in the subsequent section, to deconstruct, both specifically and precisely, different participatory modalities, and to suggest a new reform optimality pathway, informed by comparative legal systems review. ²⁷⁹

Imputed Proportionality, Evidentiary Perspectives and Reverse Burden: The Way Ahead

The challenge presented by extant Anglo-American complicity law is that it intractably homogenises different participatory modalities, across a broad landscape of culpability, and ultimately the controller/instigatory actor may be treated alike with the ethereal shadow marionette. ²⁸⁰ It is essential to effect change, not only as a concern of appropriate legal substantive reformulation, but also to avoid capricious practical unfairness. It should not be reforms predicated on the illusory distillation of causality requirements, between assistance and encouragement provided by the accessory and direct commission of harm(s), but rather on an imputed-normative-proportionality standardisation, reviewable via evidentiary perspectives in terms of actual intercessory conduct. Only an individual actor who has manifestly interceded in criminal harm(s), adjudged by the jurors as moral arbiters within prescribed gradations of culpability, (as set out herein), should rank imputably in equiparated blameworthiness with the principal offender. ²⁸¹ If this equiparation is lacking, or if the criminal wrongdoing is characterised as a wholly independent action by another party, then alternative forms of potential secondary party liability must be sought – a de novo facilitation offence, as propounded subsequently, or alternative forms of inchoate liability.

The fundamental question in terms of complicity liability ought to be whether an accomplice has provided assistance or encouragement that straddles the proportionality threshold test dividing line for liability. This judicial divining rod sits between limited/non-limited intercession with criminal wrongdoing, so that imputed liability is morally justifiable. ²⁸² A review of complicitous behaviour that morally justifies inculpation before jurors were consistently adumbrated by Lord Justice Toulson, both in leading appellate judgements, ²⁸³ and scholarly commentaries. ²⁸⁴ It is necessary, as set out below, to posit a series of alternative threshold levels for a participatory modality to guide an imputed-normative-proportionality standardisation, and one that is relationally relevant across a spectrum of complicitous engagements in harm(s) ²⁸⁵ It is instructed by the earlier contrasting review of comparative legal systems, and informed by an evaluation of reverse conduct prophylaxis denunciatory conduct for withdrawal. ²⁸⁶ Hypothecated postulations are presented, drawn, in part, from Anglo-American precedential authorities, and are contemporaneously critiqued. The different modality levels adduced engage a range of behavioural intercessions: where D2 serves as the instigator/mastermind of the criminal plan; accomplices who in differently adumbrated factual situations make a material contribution to the wrongdoing; potentially intervening conduct by the principal actor that may representationally be ‘overwhelming’; minimalistic acts of assistance and encouragement; and posited behaviours that are ineffectual and non-contributory. ²⁸⁷ Such a practical recalibration allows effective boundaries to be drawn on participatory modality and is invested in lessons to be drawn from the German Criminal Code. ²⁸⁸ It facilitates a fundamental reappraisal of the nature of the interest that the actor has in the result, the actual scope of the actor's participation in the criminal act, and the control that was engaged in harm effectuation. It considers, albeit controversially, the ‘quasi-excusatory’ nature of tokenistic instigatory acts, and the potential for a reverse burden where intervening conduct is evidentially supererogatory. ²⁸⁹

Control, Instigation and Hegemony: Lessons From the German Criminal Code

Consider, by way of illustration, the following postulation. D2 hires D1, a professional hitman, to kill V his business partner. This ‘contract’ killing occurs after a financial payment is made to effect the murder. There is no difficulty, within an imputed-normative proportionality standardisation, as in the contextualisation of the German Criminal Code, ²⁹⁰ in equiparating our moral reprobation, and the culpability threshold of the principal offender and instigatory accessory: reciprocity in sentencing is justified for homicide. ²⁹¹ The behavioural actions of the accessory have ‘caused’ the perpetrator to carry out the murder and absent the secondary party's instigation the killing is incredibly unlikely to have occurred. ²⁹² A binomial divide applies in the Strafgesetzbuch, within the German Criminal Code, between perpetrators and accessories: secondary participation is further delineated within instigation and aiding of harm(s). ²⁹³ Instigation, in terms of imputed responsibility, is subject to particularised definitional comportation. The instigator must cause the perpetrator to effect the offence, a psychological contract is needed between the parties, and direct communication is evidentially fundamental. ²⁹⁴ It is an insufficient normative touchstone in contradistinction to the ‘aiding’ of harm(s) classification, that intercessory conduct simply provides an opportunity for wrongs to be committed by others. ²⁹⁵

A further posited scenario, derived from the ‘control, instigation, and hegemony’ modality gradation threshold for complicitous behaviour, is presented by evaluation of the U.S. precedential authority of Fritz v State. ²⁹⁶ In this categorisation, the Germanic conceptualisation of co-perpetration, Mittaterschaft, ²⁹⁷ and level of control over the actions of others in terms of instigator responsibility is far broader and dissonant to Anglo-American extant laws and equiparated standardisations. There is, legitimately, no requirement in the German Criminal Code for contribution to the actus reus of the relational offence by each co-perpetrator, but predicates full personal responsibility via intercession at the earlier planning or preparation stage. ²⁹⁸

In Fritz v State, ²⁹⁹ the defendant emotionally manipulated another party (Clayton) to kill her husband and was held liable for first-degree murder through ‘controlling’ the actions of another party (later adjudged not guilty of the killing by reason of a mental condition defence). ³⁰⁰ Control over the actions of another may be direct, or indirect, as in Asher v State, ³⁰¹ wherein D2 persuaded D1 by various pressures and threats to rob a bank. The accessory controlled all other aspects of the wrongdoing: planning the execution of the robbery; providing the money used to purchase the toy gun and sack; providing a post-robbery hiding place by identifying and unlocking a parked car; and promises to pick up the perpetrator after completion of the robbery. ³⁰²

A control, instigation and hegemony standardisation within modalities of participatory behaviour may adventitiously be promulgated. A comparative review of the German Criminal Code, and widened perspectives of co-perpetration, may be adopted in Anglo-American complicity law. This recalibration, as Hamdorf iterates, ³⁰³ engages a focus on controlling the criminal act by either controlling the action itself, by controlling the mind of another participant, or, alternatively, and pragmatically, asserting operational control ³⁰⁴ as embodied in Asher v State. It legitimately interweaves a causality and imputed proportionality nexus to equiparate liability, and personal responsibility. ³⁰⁵

Moral Justifications for Complicitous Liability: The Nature of Aiding and Appropriate Culpability Gradations

It is vitally important, as Sullivan asserts, ³⁰⁶ that for complicity liability there must be some form of culpability possessed by the secondary party, reviewable through the lens of their associated criminal conduct, which is ‘broadly’ ³⁰⁷ of the same magnitude as the culpability of the other criminal actor(s) in harm effectuation. ³⁰⁸ This challenge, it is suggested, is palpably not met successfully within Anglo-American criminal justice systems, but the German Criminal Code presents a more justifiable co-terminous integration of co-perpetration and instigatory acts of assistance or encouragement. Aiding as a participatory modality is treated separately, unlike other comparative jurisdictions, and in Germany, it is demarcated in a bespoke particularised manner, as ‘quasi-exculpatory’, via mandatory sentencing discount. ³⁰⁹ It is important to also contextualise participatory liability for ‘aiding’ crime through the prism of a newly reformulated imputed-normative-proportionality standardisation, addressing moral justifications for gradations of intercessory conduct. Aiding (or encouragement) of the crime committed by another does not require causality ties, any but – for ascriptive responsibility nexus, but it suffices for liability that the engagement facilitates the harm, or it makes it safer for the perpetrator to effect. ³¹⁰ A correlation needs to apply where the principal offender is encouraged by, feels more secure because of the presence of the aider, and synchronously the aider must have a comportational awareness that their presence moderates the other's attitudinal beliefs. ³¹¹

Lord Justice Toulson across a series of appellate determinations, ³¹² has made a significant contribution to effectively distinguish the legal and moral components of aiding and encouraging within complicitous behaviour. ³¹³ In terms of participatory modality, whether a perpetrator acted with the aid or encouragement of the accessory is presented as a simple factual question for jury evaluation as moral arbiters, abrogating confusion over ascriptive causal responsibility dilemmatic choices. ³¹⁴ It is interwoven with the fairness question as to whether it is ‘just’ to find that culpability threshold gradations have been established. ³¹⁵ The moral component is whether it is justifiable to consider the accessory personally liable for harm effectuation. ³¹⁶ In the Court of Appeal determinations in Mendez ³¹⁷ and Stringer, ³¹⁸ Toulson L.J. articulated that there is no precise definitional formula for the actus reus ingredients of complicity, but rather it had to be evidentially proved to the jurors’ satisfaction that the criminal wrongdoing was committed with the secondary party's assistance or encouragement. ³¹⁹ Before the Supreme Court in Jogee ³²⁰ a few years later, rejecting the doctrine in general, of parasitic accessorial liability, Toulson L.J. restated that secondary participation modality was uniformly adapted: ‘[U]ltimately, it is a question of fact and degree whether D2's conduct was so distanced in time, place or circumstances from the conduct of D1 that it would not be realistic to regard D1's offence as encouraged or assisted by it’. ³²¹

It is, however, necessary to go much further in providing cognate illustrations, within the propounded imputed – normative – proportionality standardisation, of complicitous behaviour that ought to cross the Rubicon in terms of inculpation, and more effective jury guidance. ³²² In Mendez, ³²³ the criminal conduct involved the emboldenment of others in the group by participating in violence directed against the victim, leading to a fatal stabbing. The accessory in Stringer ³²⁴ participated with others in an attack on another individual, subsequent to a chase through the streets with baseball bats, and ultimately an unlawful killing by stabbing. It was determined that the ‘chasing’ of the victim was sufficiently connected to the stabbing to evidentially be adduced as constitutive of ‘encouragement’. ³²⁵ The temporal points of individuation between the chasing and stabbing were so unattenuated, formed an indivisible continuum, that the perpetrator had been assisted in the murderous attack by the complicitous behaviour of others. ³²⁶ The principal offender had the comfort and security of knowing that he was not acting individually but had the support of others, and the expectation that assistance could be garnered from them if required. ³²⁷

Jurisprudential precedential authorities highlight a relational connectivity comportation, as Virgo articulates, ³²⁸ that the killer is simply ‘influenced’ by the accessorial contribution, even if the unlawful killing would have occurred without any aid, or direct encouragement. ³²⁹ Moreover, the definitional parameters, and true nature of succour and/or comfort to the perpetrator by the accessory's intercession in the harm(s) was extended even further by Toulson LJ in Stringer. ³³⁰ By extrapolation, it was adduced that a ‘presumed connection’ might apply in my posited modality scenario, provided there is only, at a de minimais gradation, some kind of overarching awareness of the communication (direct or indirect) of support:

If D provides assistance or encouragement to P, and P does that which he has been encouraged or assisted to do, there is good policy reasons for treating D's conduct as materially contributing to the commission of the offence, and therefore justifying D's punishment as a person responsible for the commission of the offence, whether or not P would have acted in the same way without such assistance or encouragement. ³³¹

It is self-evident in Mendez and Stringer that each respective secondary party embedded themselves within the criminal harm effected: moral desert precepts intimate their liability as aiders/encouragers, providing succour and support to the perpetrators. ³³² Our moral compass, as a normative barometer, asks whether it is ‘just’ to consider them culpable for what occurred? A positive answer is elicited but their personal responsibility ‘ought’ to be judged in comportation with their conduct in providing comfort and support to the principal offender. The nature of their conduct sits within the umbrella of Beihilfe under the German Criminal Code, and purviewed as ‘aiding’ crime, not co-perpetration or instigating. ³³³ The aider or encourager of harm sits in a different categorisation of secondary participation – a panoply of conduct that has a widened importation, embracing every modality of conduct which enables, facilitates, expedites or intensifies the wrongdoing of another party. ³³⁴ The concomitant, however, is a mandatorily reduced sentencing regime in terms of appropriate blameworthiness. ³³⁵

A more nuanced imputed-normative-proportional standardisation should apply across the intercessory spectrum of aiding and encouragement of criminal wrongdoing. Participatory modality should also be guided by a new type of focus that demands that our jurors as moral arbiters of liability concentrate upon the level of ‘fault’ intrinsic to the complicitous behaviour per se. This recalibration can again be illustrated by a review of a number of postulated factual and hypothecated situations. In the off-cited determination in Wilcox v Jeffrey, ³³⁶ for example, there was ‘fault’ in the whole attitudinal manner by which the accessory embedded themselves in the acts of the principal. The accomplice attended a concert by Coleman Hawkins in his capacity as a jazz critic and writer, and, additionally, paid a fee to attend the performance: ‘his presence and his payment to go there was an encouragement’. ³³⁷ The concert itself had been prohibited, and was unlawful, as Hawkins, a U.S. citizen, had entered the country unlawfully, without a work permit contrary to the Aliens Order 1920. ³³⁸

It ought to be significant for fact-finders to review the culpability intrinsically attached (or otherwise) to the accessory's complicitous behaviour in general, and separately in normative consideration as part of actual acts to aid or encourage. In the realm of ascriptive causal responsibility more broadly, outwith complicity, it is significant that Toulson L.J. made a fundamental intervention to establish ‘fault’ as part of actus reus conduct requirements. ³³⁹ In Hughes, ³⁴⁰ before the Supreme Court, an uninsured defendant was driving perfectly safely, on the correct side of the road, and his vehicle was impacted by the deceased who steered uncontrollably into the other lane, whilst affected by a cocktail of drugs and exhaustion from overwork. At issue was whether the defendant, absent ‘personal responsibility’, could be said to have caused death by driving, and, consequentially, an offence within the purview of the Road Traffic Act 1988. ³⁴¹ The Supreme Court, and Toulson L.J., overturning the appellate court decision, asserted that there was no explicit abrogation of normal causation requirements, and ‘driving’ should not be confused with mere presence. ³⁴²

Importantly, and if followed in a widened contextualisation, the statements in Hughes are of heightened significance beyond the particularised factual scenario presented. The death had to be connected to something objectively wrong about Hughes’ driving: ‘[J]uries should be directed … there must be something open to proper criticism in the driving (conduct) of the defendant … which contributed in some more than minimal way to the death’. ³⁴³ Causal salience was required as an imprimatur for liability, but more relationally relevant to the present discussion is the transformational emphasis on normative imputed fault (or otherwise) in the epicentre of the very conduct of the individual actor. ³⁴⁴ This is translational for fact finder review and consideration, within the arena of modalities of participating behaviour, with a primordial reappraisal of moral desert, justification for liability, and re-evaluation of how a secondary party has embedded themselves into the wrongdoing of another. Consider, by way of illustration, an accessory who supplies oxygen-cutting equipment in contemplation of a number of bank raids by D1. ³⁴⁵ During the course of one such burglary the perpetrator is apprehended by a security guard and fatally hits the victim over the head with the equipment supplied by D2. An appraisal of the delfacatory complicitous conduct of the accessory, outwith mens rea comportations, is significant in terms of ‘fault’ appurtenant thereto, and categorisation of aid provided for normative fact-finder deliberation. ³⁴⁶

A recalibration of ‘fault’ as part of an imputed-normative-proportional standardisation of participatory modality, and adapted to aiding/encouraging harm(s), would facilitate more efficacious outcome responsiveness. It would posit a different outcome in the seminal U.S. case of Commonwealth v Root, ³⁴⁷ highlighted by Kadish. ³⁴⁸ A supererogatory precept, as Simester has articulated, should be whether as a principal offender or secondary party, the grounds for reproof must originate, and have as their derivation, the conduct of that individual actor. ³⁴⁹ In Commonwealth v Root, the respective individuals engaged in an automobile race on a country road, reaching speeds of over 90 miles per hour, and engaging reckless manoeuvres to pass each other – the deceased was killed instantly when he collided with a truck coming from the opposite direction. Root was convicted of involuntary manslaughter, but the majority of the Pennsylvania Supreme Court reversed the decision; it was deemed inappropriate to traduce and reconceptualise the voluntary actions of V (reckless) to find a cause of death via the conduct of another individual actor. ³⁵⁰ This outcome seems inapposite, significantly over-generous to a defendant who encouraged harm, and normatively acted with an imputed fault in their conduct, was directly connected to the wrong, and who manifestly embedded themselves in the offence by assisting and encouraging the commission of an actus reus (death by dangerous driving). ³⁵¹ There is a perceptibly dissonant scalarity in terms of ‘fault’ in conduct in contradistinction to the metanarrative in Hughes.

In summary, the aider or encourager of harm(s) ought, in Anglo-American complicity law, to have a separate particularised compartmentalisation within participatory modalities. A new definitional categorisation and standardisation is required, bespoke and dissonant in culpability gradation from the co-perpetrator, or the instigator. The Beihilfe, and Germanic Criminal Code, foreshadows, in part, the optimal way ahead, with a widened import to ‘aiding’ with such complicitous behaviour constitutively embracing, enabling, facilitating, expediting, or intensifying the wrongdoing of another party. ³⁵² It should be fundamental for our fact-finders to evidentially consider the level of ‘fault’ intrinsic to the accessorial conduct per se, with proportionality to the personal responsibility of the individual actor. This ought to be assessed normatively in comportation with a gradation of the accomplice's conduct in providing support, succour, and comfort to the principal offender.

Insubstantial Intercession in the Crimes of Others: Lessons From Germany and the Need for a Bespoke Facilitation Offence

Anglophone jurisdictions have capriciously compartmentalised ‘any’ acts of assistance or encouragement by an accessory towards the effectuation of criminal wrongdoing in derivative equiparation with the offence commission conduct of the actual perpetrator. This has occurred irrespective of causal salience, or, indeed, despite irreducibly slight connection or limited perfunctory association with perpetratory acts. Liability predicated an insubstantial tangential association to harm(s) has unfortunately become a modern form of Anglo-American pageantry. Kadish has asserted that no requirement has prevailed in U.S. criminal law for the prosecution to establish, as it must in other ascriptive personal responsibility causation cases that the harm would not have deontologically transpired without the complicitous behaviour. ³⁵³ A presumption of connection or intercessory behaviour, inductively, often as a matter of legal fiction, has been portrayed, and extensively applied, in a counter-intuitive, and counter-factual manner to achieve dispositorily prescribed outcomes. ³⁵⁴ Perfunctory and tangentially constrained types of participatory modality have been raised to a culpability threshold gradation that is ill-deserved. ³⁵⁵

Anglo-American jurisprudence is, unfortunately, replete with illustrations where no requirement exists to demonstrate that the actual aid or encouragement made any fundamental difference to the principal offender's resolution to commit the harm. ³⁵⁶ Nor that the supposedly contributory acts of the accomplice made any real substantial difference to the effected wrongdoing itself. ³⁵⁷ It is not enough to justify personal inculpation, or responsibility equiparation, where the aid/encouragement is wholly ineffective, and makes no material contribution at all to the offence commission. ³⁵⁸ The call of encouragement to a perpetrator to inflict violence on another person, which demonstrably fails to impart any influence as the principal is deaf, could hardly form the constituents of the actus reus of complicity liability. ³⁵⁹ Beyond such an extreme illustration of wholly ineffectual and failed encouragement, our laws are replete with illustrations where tokenistic and minimalistic acts of aiding/encouraging satisfy the derivative D2 inculpatory threshold, and equiparated liability is propagated. A spectrum of wholly perfunctory and limited intercessory conduct in the crimes of others have prevailed to disassociately ‘find’ liability: carrying the photographic negatives for the principal counterfeiter ³⁶⁰ ; lending a smock to another so as not to dirty his clothes whilst administering a beating, ³⁶¹ a wife preparing food to provide sustenance to her criminally attuned husband ³⁶² ; asking burglars in advance to get bananas ³⁶³ as a precursor to taking the goods; providing the wrong key to encourage the perpetrator to unlock a cellar door, ³⁶⁴ and in Gianetto, ³⁶⁵ a trial judge who instructed the jury in the following terms: ‘[S]uppose somebody came up to [him], and said, ‘I am going to kill your wife’, if (the secondary party) played any part … [like] patting him on the back, adding, saying ‘Oh goody’, that would be sufficient. ³⁶⁶ Dressler has also cogently adumbrated that, in U.S. states that have enacted the Model Penal Code's complicity provision, there is a further broadened liability comportation to where the secondary party does not aid, even in a perfunctory manner, but attempts to do so, as a corresponding touchstone of liability. ³⁶⁷

It is inapposite to impose full substantive accessorial derivative liability for criminal wrongdoing affected by another, simply on the predicate of what is reducibly, in effect, no more than a positive disposition towards the principal offenders’ actions. The secondary party should only bear imputed proportional responsibility for their complicitous, but personal behaviour: ‘[F]ull accountability for a wrong, whether perpetrated by oneself, or by somebody else, requires responsibility for the wrong in terms of a material in the world connection with the events that constitute the externalities of the crime, and culpability commensurate with the blame and censure associated with its commission’. ³⁶⁸ The German Criminal Code highlights an adventitious pathway for Anglo-American legal systems to follow, in part, and to adapt. There is no synchronous equiparation of culpability across the dis-proportional liability spectrum of co-perpetrator, instigator and aider. ³⁶⁹ It is insufficient for liability to have a presumption of connection in terms of assistance or encouragement: aiding requires a nexus whereby the perpetrator is encouraged by, feels more secure because of the presence of the aider, and a correlation on the part of the accessory in terms of awareness that their presence moderates the attitudinal belief of the perpetrators. ³⁷⁰ If this definitional comportation is not met for aiding, as is the posited scenario with tokenistic or minimalistic acts of assistance or encouragement, then alternative types of participatory modality need to be engendered de novo for this lower threshold categorisation. ³⁷¹

An adaptation of Germanic criminal law precepts and recategorisation of a triumvirate of culpability standardisations present different, and more morally justifiable outcomes – determinativeness in the illustrative postulations herein. It presages an alternative result in the off-debated U.S. precedential authority of State v Tally, ³⁷² where complicitous responsibility for a homicide committed by co-perpetrators was viewed through a lens of attempted aid. This categorisation should be reappraised through an inputted-normative-proportional standardisation, and via propagation of an alternative bespoke new facilitation offence, reconstitutively encompassing personal responsibility, and evidentiary liability thresholds.

In State v Tally, the secondary party had sent a telegram that instructed a telegram operator not to deliver a telegram previously sent to one of the victim's relatives, providing a warning of the imminent threat. The warning telegram was not sent by the operator. Tally was held, co-terminously with others, accessorily liable for the subsequent homicide, predicated on their attempted aid, even though the killers were unaware of Tally's encouragement. ³⁷³ There was no requirement for causal salience in terms of ascriptive personal responsibility for the criminal result, any effectual importation that the killers were influenced by the accessorial contribution, or, indeed, that any succour or comfort was communicated to the co-perpetrators, either directly or psychologically. ³⁷⁴ Liability applied for the effectuation of a result that would have been applied without it. It seems counter-factual and counter-normative to ascribe full complicity liability where conduct is wholly ineffectual, and in no sense is the principal offender(s) ‘influenced’ by the accessorial contribution, nor, indeed, can presumed connection operate to fill the factual evidentiary gap. ³⁷⁵

More generally, a newly formulated ‘facilitation’ offence is needed for broader adoption in Anglo-American criminal law. This newly formulated offence should be standardised at a lower culpability and personal responsibility standardisation than currently applies to all types of assistance or encouragement of harm(s). ³⁷⁶ Perfunctory acts of intercessory behaviour need to be reconceptualised and recalibrated. It should properly demarcate complicitous behaviour that currently improperly straddles tokenistic and minimalistic conduct, and forms of instigation: a via media is required between the scylla and charybdis of extant dis-equiparating participatory modality. Attempted aiding or encouraging is not the same as other types of facilitative complicitous behaviour. The newly formulated facilitation offence will be applicable where the accessory has provided no real-world material succour or support to the perpetrator, where deontologically the aiding or encouragement provided is normatively disproportionate to the establishment of full derivative culpability, moral desert dissociates the individual accessorial actor from equal criminal liability, and evidentially the secondary party is not truly ‘embedded’ in the criminal wrongdoing. ³⁷⁷

The proposed de novo facilitation offence herein draws, in part, upon alternative comparative criminal legal system perspectives, including New York. ³⁷⁸ It conceptualises ‘facilitation’ as providing an individual with the means or the opportunity to commit a crime, and adapts criteria that the BGH in Germany has established, ³⁷⁹ as well as integrating innovative propositions advanced within the article. The facilitation offence, as originally ‘propounded, should be “quasi-excusatory”’ within the panoply of participating modalities, subject to a mandatorily discounted sentence. It is submitted that the following template ought to be adventitiously adopted as part of the comparative reform of complicity precepts:

A person is guilty of criminal facilitation when he intersects in the criminal offence perpetrated by another, by engaging in conduct which provides the means or opportunity for the commission thereof, and which, in fact, aids or encourages such a person to commit an offence. The jury will proportionally consider this determination as a question of fact and review: (1) The nature of the interest that the party has in the result; (2) The scope of the party's participation in the criminal act; and (3) The control, or otherwise, that the party had over the criminal act. Aid or encouragement does not have to be causal for the commission of the principal offence, but it suffices that it facilitates it, or makes it safer for the other party, whereby they feel more secure because of the participation of the aider or encourager.

Intervening Acts Committed by the Principal Offender: Causality, Culpability and Reverse Burden

Causality ties and ascriptive personal responsibility intersect with complicity liability in a particularised and specific manner. ³⁸⁰ The contextualisation is bespoke and individuated, and the lens needs to shine on the issue of whether the unlawful act(s) of the perpetrator ought to be regarded as unilateral, independent and one-sided, outwith the assistance and encouragement of other participatory modalities, consequently abrogating the responsibility of the accessory for derivative offence commission. ³⁸¹ It is within this limited metanarrative that the import of causality (or otherwise), and dissolution of causal ties of behavioural culpability becomes determinatively significant. ³⁸² The independently propagated actional choices effected by the principal offender, their volitional course of conduct, not relationally contributed to by the secondary party, may act as a detumescent bulwark to inculpation. ³⁸³ There is a consequential preclusion of accessorial liability, and personal responsibility, where an intervening cause (a novus actus interveniens) intersects with the commission of criminal wrongdoing: ‘[W]henever we reprove a person the grounds for reproof must originate in the conduct of that person’. ³⁸⁴ The corollary, as Feinberg stated, is, ‘the more expectable harm behaviour is, whether voluntary or not, the less likely it is a negative causal connection’. ³⁸⁵

The comportation of intervening acts by a principal offender, breaking causal ties of other criminal actors, was set out before the appellate court in Anderson and Morris. ³⁸⁶ The quintessentially important concern related to the definitional intersection of causality, rather than inculcated issues of mens rea dissonance and reformulation on the part of the perpetrator. ³⁸⁷ The defendant had joined another to carry out a basic assault but, in the course of the unlawful act, the other party unexpectedly stabbed the victim to death with a concealed knife. The secondary party's conviction for manslaughter was reversed, ³⁸⁸ and Lord Parker set out the parameters of intervening causality and complicitous behavioural liability:

Considered as a matter of causation there may well be an overwhelming supervening event which is of such a character that it will relegate into history maters which would otherwise be looked upon as causative factors. ³⁸⁹

The ascription of causality principles should be relationally relevant to complicity in order to standardise when the action of a principal offender intervenes, and transmogrification of culpability via ‘an overwhelming supervening act’. ³⁹⁰ It engages, as Simester iterates, ³⁹¹ an examination, of the precepts of personal control over criminal liability. ³⁹² A common law rule of Anglo-American criminal law is that the intervention of a free, deliberate, and informed third-party action may break the chain of liability between the initial wrongdoing of an individual actor, and the harm that ultimately transpires. ³⁹³ The dilemmatic choices presented within complicity laws, and still unresolved, relates to the consideration of the nature and ambit of independent act ‘quasi-excusatory’ standardisations, and the need for adaptation of an imputed-normative-proportionality template for holistic propagation. The extant position is that it remains opaque, and subject to solipsistic ad hoc instrumentalistic development, as to when a secondary party is inured from consequential liability by independent and intercessory perpetrator conduct. ³⁹⁴ The successful prediction of outcome-responsibility remains as likely in Anglo-American law as tattooing soap bubbles! Indeed, numerous illustrations prevail across the breadth of Anglophone jurisdiction that reveals such palpable inconsistencies, and counterfactual evidentiary gradations. ³⁹⁵

The difficulties presented by the lack of universalistic standardisations in this arena were illustratively presented in the recent case of Tas, ³⁹⁶ reviewing the nature of intercessory perpetrator conduct in a post-Jogee scenario, and the abrogation of common purpose doctrine. The factual scenario presented engaged a planned assault on a victim (use of fists) where the accessory provided backup and an escape vehicle, but the principal offender independently stabbed the victim to death. The accomplice's conviction for manslaughter was upheld by the appellate court, irrespective of D2's ignorance that D1 was in possession of a weapon. ³⁹⁷ There was no automatic entitlement to an acquittal consequential to the principal offender's volitional intercessory conduct. It was a question of fact and degree whether the secondary party's conduct was so distanced in time, place, or circumstances from the conduct of the perpetrator that it would not be realistic to regard the homicide as encouraged or assisted by another. ³⁹⁸ An overwhelming supervening event, inuring the accomplice from liability, only applied if the victim's death, constitutively, was caused by, ‘an act which nobody in the defendant's shoes would have contemplated might happen, and was of such as character as to relegate his acts to history’. ³⁹⁹ This is an extremely high ‘quasi-exculpatory’ threshold to cross. Confusingly, the appellate court in Tas endorsed a dichotomy between two extremes: firstly, those co-relating to ‘causative matters’ which may entitle a trial judge to direct the jury on overwhelming supervening events ⁴⁰⁰ ; and, secondly, other factual concerns which might be regarded as aspects of ‘mere escalation’, where no trial judge direction is implicated. ⁴⁰¹ This framework, however, does not assist in the delineation of causally salient intervening acts, and, unfortunately, obfuscates fact-finder determinations in creating an unclear and non-sustainable binary divide between the causal dissolution of responsibility/escalation of anticipated harm, with complicitous responsibility still adhering to the latter. ⁴⁰²

The earlier decision in Rafferty ⁴⁰³ was endorsed in Tas, mistakenly conflating the former outcome – determination, as predicated also on withdrawal precepts. Withdrawal, as previously discussed, and abrogation of liability via intervening perpetrator causality, is fundamentally different in contextualisation, albeit synergies may apply via adaptation of ‘quasi-excusatory’ norms. ⁴⁰⁴ In Rafferty, the defendant, and other co-adventurers, carried out an attack on the victim at a beach. Rafferty elbowed the victim in the back and stole his debit card (elements of robbery). Before decamping from the scene for over 40 min to find a cash dispenser he called out, ‘come on boy's, leave it’. In his absence the violence escalated, the victim was stripped down, and then drowned. The trial judge left for jury consideration whether D2 had withdrawn from the unlawful common purpose. In reality, this was a non-issue. The appellate court, quite appropriately conclude that Rafferty was not a principal offender as he was not a substantial cause of the unlawful homicide. The defendant could also not be categorised as a secondary party. ⁴⁰⁵ The act of drowning, effected by the other co-perpetrators, was ‘causatively’ of a fundamentally different nature (now casuistically reviewable as ‘an overwhelming supervening event’), from the unlawful robbery enterprise that was contemplated and engaged. Concomitantly, this should have meant that any consideration of ‘quasi-excusatory’ withdrawal precepts was rendered otiose. ⁴⁰⁶

The outcome determination in Tas, and across a number of similar cases where accessorial homicide liability has been engendered including for felony murder, counterfactual and counternormative. It is contradictory to imputations of causality and intervening intercessory principal offender actions. ⁴⁰⁷ Child and Sullivan ⁴⁰⁸ have cogently postulated for reflective consideration, a post-Jogee scenario (not dissimilar to the factual pattern in Tas itself) where substantive doctrinal and theoretical perspectives demand alternative outcomes. ⁴⁰⁹ Illustratively, consider a hypothecate where D2 intentionally assists or encourages D1 to effect harm on V, but through a relatively non-serious course of conduct (punch in the face), but violence escalates, and V is shot and killed. The question posited is whether the secondary party, in such circumstances, ought to be liable for homicide, and, co-determinatively in which crime(s) have they interceded and made proportional contributory reprovable delfacations. ⁴¹⁰ Child and Sullivan ⁴¹¹ legitimately assert, in response, that to hold a secondary party liable for manslaughter in such contextualisations is factually inaccurate in predicting blame on assisting the shooting (or conjunctively the stabbing in Tas), or otherwise linking culpability gradations to mere predictive fiction ⁴¹² :

deriving liability from an unforeseen potential outcome of that conduct is incoherent. ⁴¹³

A new way forward is needed, within the imputed-normative-proportional formula for complicity, as adduced to substantively readdress the nature of intervening causality. This reformulated template needs to pervasively standardise variegated types of course of conduct departures by the principal offender, and volitional independent commission of alternative harm(s) on their part. In such recategorisation, the earlier acts of assistance or encouragement by the accomplice are ‘non-causal’ in terms of higher gradation harm commission by D1, and different level of culpability and personal responsibility is equiparated with moral censure, and blameworthiness. ⁴¹⁴ An optimal pathway to more efficaciously reconceptualise culpability for complicitous behaviour is required. ⁴¹⁵ It is proposed, albeit controversially, that Anglo-American complicity law should beneficially recalibrate intervening principal actor causality as ‘quasi-excusatory’ for homicide and other offences, and with a reverse burden of proof, and standardisation of evidentiary requirements. ⁴¹⁶ A de novo defence ought to apply to limit proportionality imputations to situations where the conduct requirements of complicity are properly engendered and to effectively facilitate juror consideration of intervening dissolution of causality ties. ⁴¹⁷ The burden of proof in this special ‘quasi excusatory’ type defence could legitimately be reversed, with the onus shifted to the second participant. It is, thus, contended that intercessory acts committed by the perpetrator (their course of conduct departure) need to be viewed as an affirmative defence, operating sui generis as an independent offence-modification defence, and cathartically as a quasi-excuse on a reduced culpability framework. ⁴¹⁸ Optimisation principles indicate that a reverse burden of proof should apply on a preponderance of evidence standard and that it is for the recalcitrant defendant to satisfy the court of dissolution of causal ties for homicide, and other crimes, via the volitional intervening course of conduct by the principal actor. ⁴¹⁹

This is reflective of practice in a number of U.S. jurisdictions to the complicity aspect of felony murder and in complementarity with withdrawal, and, in this regard, Robinson has concluded: ‘[T]he burden of production for defences of renunciation, abandonment, and withdrawal is always on the defendant. The burden of persuasion is generally on the defendant by a preponderance of the evidence’. ⁴²⁰ A number of defendants have challenged the constitutionality of this reversal but to no avail. ⁴²¹

In similar vein, special defences to homicide and other offences may apply, predicated on evidentiary normalisations and reverse burden onus, where a complicitous actor can satisfy jurors as moral arbiters that a wholly volitional independent act by a perpetrator is applicable in the following variegated circumstances ⁴²² : (1) D2 did not reasonably believe that the principal offender intended to effect an act likely to result in death or grievous bodily harm, and their acts of assistance or encouragement co-related only to the propagation of non-serious harm; (2) D2 did not carry an offensive weapon during the fatal attack, or supply any such weapon to the principal offender ⁴²³ ; (3) D2 did not reasonably believe that D1 was armed with an offensive weapon at the time of the attack, or any other complicitous individual ⁴²⁴ ; (4) it is a special defence where D2 only provided, in accordance with their intentions, acts of assistance or encouragement in furtherance of any property crime, and not a crime against the person – including robbery, where only some force, albeit minor, was intended, ⁴²⁵ and (5) D2 will be punished to a specific gradation level, less than otherwise, if proved by a preponderance of the evidence that his conduct did not cause to be committed the harm specified by the offence for which he is held accountable. Individuated personal liability will only apply for acts of assistance or encouragement that align with directly and facilitate offence commission. These reforms would beneficially charter an optimal reform of complicity principles, specifically addressing the causal salience of radical course of conduct departures by the perpetrator, the spectrum of imputed proportionality culpability, and substantiality of behavioural contribution to harm(s).

Conclusion

The precise legal topography of Anglo-American complicitous behaviour ought to be distilled within a newly formulated standardisation. The guiding principles that are promulgated in this article may be crystallised in the following terms:

A recalibration of complicity precepts is urgently needed to predicate liability on morally justifiable principles. There needs to be an immediate reappraisal to efficaciously align mode of participation synchronously with normative proportionality standardisations, and as evidentiary attribution before jurors as moral arbiters. This reattribution should be cast within parameters of reasonableness to justify inculpation, and with an attenuated reverse burden onus. It is important to reflect pragmatically on the secondary party's actual intersession with the completed crime(s) and to adapt moral blameworthiness conceptualisations, including an examination of the degree of hegemony or control over others.

Modes of complicitous behaviour ought to be considered afresh, reviewable via an original ‘quasi-excusatory’ lens that is normatively akin to denunciatory acts of an effective withdrawal, and with parallel syllogisms for reform optimality. It needs to be asked of jurors, as moral arbiters, whether D2 acted with a ‘particularly blameworthy mindset’. Parity of culpability, or otherwise, between principal offender and accessory needs to be recast, and dissonances in moral culpability translated into a transformational reappraisal of inculpatory/non-culpatory behaviour. It is necessary to re-examine the shoals of culpability, of personal responsibility, and of criminalisation itself, providing a more fundamental binomial role for D2's actual intercessory conduct, beyond causality or illusory associated connection(s). Anglophone jurisdictions have repeatedly made antediluvian judicial references and incantations to a need for causation/connection between D2's conduct and D1's criminal wrongdoing. The pithy reality, however, is that other than for procurement, or for overwhelming supervening acts attributable to a principal, causality ties are not relationally attributive. A far stronger synergy is required between delfacatory conduct and criminal harm(s).

1. The adaptive imputed proportionality recalibrated test that is propounded, and new theoretical perspectives on accessorial liability, concentrate normatively on complicitous ‘fault’ in behaviour, set against graduated threshold norms. It focuses on comparative lessons derived from the adventitious Anglo-American implementation of elements of the German Criminal Code, which makes a transformatively significant binary divide between two dissonant categorisations of secondary participation. The instigator of criminal conduct is defined and interpreted as an individual who may have control or hegemony over the actions of others, and who ‘causes’ the perpetrator to effect the commission of the criminal wrongdoing. There is a requirement for ‘direct’ communication between perpetrator and accessory, and psychological control is required. Alternatively, and with a radically differentiated intercession in effected harm, will be the aider who simply facilitates the wrong of another individual actor, via emboldenment, influencing their conduct in a more attenuated manner, through the provision of succour, security and support. Consequently, a more indirect influential connection is prescribed, but with a co-terminous mandatorily reduced sentence, properly aligning and cohering with ‘legitimate’ culpability and responsibility norms.

2. There should be the propagation of a new standardised template for both intercessory assistance and encouragement, aligned and deconstructed in complementarity with withdrawal principles. The conceptual edifice appurtenant to withdrawal fits within the realm of quasi-excusatory defences and reduced culpability. Secondary participation in crime, effected through the accomplice's assistance or encouragement of wrongdoing, may, arguably, similarly be viewed through a spectrum of behavioural engagement that facilitates quasi-excusatory and reduced culpability outcome determination. Minimalistic and tokenistic encouragement of crime is not the same as instigation and material assistance, nor should relational (dis)-equivance continue to skew liability, nor inapposite fudged equiparation continue to prevail.

A pre-inculpatory interlude prevails for withdrawal from participatory engagement, wherein a redemptive change of heart, aligned with appropriate reductive criminal depredation may exculpate via reverse conduct prophylaxis. These precepts ought to be adapted to also apply to temporal individuation of the accessory's actual intercession/contribution to criminal wrongdoing more broadly. This posits a more extensive evidentiary review of delfacatory conduct, traducing T3 (commission of harm stage), and reconstitutively the contributory conduct of the secondary party at T1 or T2 stages in a continuum. Participation in crime as an accessory requires ‘fault’ in the actual conduct itself, beyond simple but for causation. Connectivity plus ‘fault’ in conduct is required as a leitmotif for proportionate liability. Moreover, the precise legal topography for withdrawal, in general, has polarised debate, but, in truth, ought to be viewed through a lens reflecting reduced culpability and/or societal dangerousness of the actor. Their penitent behaviour may counter-act complicitous behaviour and, consequently, in terms of present or future depredations, they do not present as great a societal danger, or at least present a reducibly minimum threat.

Participatory complicitous conduct and repentant negation of prior engagement align synchronously together in terms of imputed proportionality degrees of moral blameworthiness and societal dangerousness characterisation. The redemptive change of heart of the accessory means that imputed criminal liability for complicity may be inapposite as the ‘flame of dangerousness’, created by initial attitudinal behaviour, has been doused to undo or prevent harm. The reasoning here is that the individual, considered inwardly on a prognostic basis, has revealed him or herself as possessing more limited socially dangerous characteristics, and, therefore, should be inculcated a quasi-excuse. Tokenistic or minimalist intercession in wrongdoing by limited acts of assistance or encouragement should co-terminously reflect reductionist culpability thresholds, via mandatory lower sentences, or effectuation of an alternative facilitation offence.

Modes of instigatory and renunciatory behaviour should be reviewed de novo through a complementary and synchronous lens to effectively deconstruct moral blameworthiness. Conduct of an irreducibly minimal nature is inadequate to meet the threshold test: perfunctory verbal disclaimers of liability; failure to attend on the day of the commission of the criminal purpose (omission), or fleeing from the scene of the crime are all ineffectual manifestations of imputed countermand. Normatively, these types of limited remedial disengagement are not sustainable or adequate as a vignette of redemptive behaviour: the ‘price’ of exculpation has not been satisfied. Minimalistic and tokenistic acts of disavowal do not negate liability. It is capricious, accordingly, to treat limited acts of assisting or encouraging harm(s) as ranking pari passu in culpability equiparation to the responsibility of the actual progenitor of the criminal wrongdoing. There is not the same normative proportionality or imputed responsibility, and to suggest otherwise is the antithesis of any fair and just Anglo-American criminal justice system(s).

It is submitted there is much to learn from a comparative extirpation of the German Criminal Code, and recalibration of perpetrator/secondary party complicitous behaviour. A perpetrator is phenomenologically embodied as an individual actor that can be said to ‘control’ the very behaviour prescribed by the criminal offence. Tatherschaftslehre: A perpetrator may be imputed normative personal liability across a spectrum of behavioural intercessory conduct, all within the ‘controlling’ the criminal act panoply. Liability pertains either by controlling the action itself (Handtungsherrschaft), by controlling the mind of another participant, or alternatively, and pragmatically, via the assertion of operational control. A binomial division, with imputed-normative-proportional policy inculcations, applies in the Strafgesetzbuch, between perpetrators and accessories who are instigators of criminal wrongdoing and, alternatively, accessories who merely ‘facilitate’ criminal conduct.

An instigator is conceptualised in the German Criminal Code as a secondary party but treated as a principal offender if relational causality ties to wrongs are evidentially established. Aiding is prescribed a far more comprehensive definitional comportation, but in a quasi-excusatory fashion, receiving a mandatory statutory sentencing discount. This ‘quasi-excusatory’ analysis resonates with an earlier critique of withdrawal, and reverse conduct prophylaxis. It also adheres to an imputed-normative-proportional standardisation, as propounded herein, for complicitous behaviour, reviewable via a new evidentiary framework. It reflects a dissonant template that has been adapted by the BGH, coalescing around three comportationally significant factorisations that are of crucial salience: the scope of the individual actor's participation; the nature of their interest in D1's delfacations; and, importantly, their hierarchical control over the conduct of other participatory wrongdoers. An optimal recalibration of liability ought to focus on how a secondary party has intersected with the criminal offence. A hierarchical reordering of culpability between the instigator (facilitator) who makes a direct physical or psychological contract with the perpetrator, and the aider, whose intercessory behaviour is more attenuated, and whose attributive responsibility is reduced, should adventitiously be standardised.

1. The fundamental question in terms of complicity liability ought to be whether an accomplice has provided assistance or encouragement that straddles the proportionality threshold test dividing line for liability. This judicial divining-rod sits between limited/non-limited intercession with criminal wrongdoing, so that imputed liability is morally justifiable. A review of complicitous behaviour that morally justifies inculpation before jurors were consistently adumbrated by Lord Justice Toulson, both in leading appellate judgments, and scholarly commentaries. It is necessary to posit a series of alternate threshold levels for a participatory modality to guide an inputted-normative-proportionality standardisation and one that is relationally relevant across a spectrum of complicitous engagements in harm(s). It is instructed by a contrasting review of comparative legal systems and informed by an evaluation of reverse conduct prophylaxis denunciatory conduct for withdrawal.

2. The aider or encourager of harm(s) ought, in Anglo-American complicity law, to have a separate particularised compartmentalisation within participatory modalities. A new definitional categorisation and standardisation is required, bespoke and dissonant in culpability gradation from the co-perpetrator, or the instigator. The Beihilfe, and Germanic Criminal Code, foreshadows, in part, the optimal way ahead, with a widened import to ‘aiding’ with such complicitous behaviour constitutively embracing, enabling, facilitating, expediting, or intensifying the wrongdoing of another party. It should be fundamental for our fact-finders to evidentially consider the level of ‘fault’ intrinsic to the accessorial conduct per se, with proportionality to the personal responsibility of the individual actor. This ought to be assessed normatively in comportation with a gradation of the accomplice's conduct in providing support, succour, and comfort to the principal offender.

3. More generally, a newly formulated ‘facilitation’ offence is needed for broader adoption in Anglo-American criminal law. This newly formulated offence should be standardised at a lower culpability and personal responsibility standardisation than currently applies to all types of assistance or encouragement of harm(s). Perfunctory acts of intercessory behaviour need to be reconceptualised and recalibrated. It should properly demarcate complicitous behaviour that currently improperly straddles tokenistic and minimalistic conduct, and delfacatory acts of instigation: a via media is required between the scylla and charybdis of extant dis-equiparating participatory modality. Attempted aiding or encouraging is not the same as other types of facilitative complicitous behaviour. The newly formulated facilitation offence will be applicable where the accessory has provided no real-world material succour or support to the perpetrator, where constitutively the aiding or encouragement provided is normatively disproportionate to the establishment of full derivative culpability, moral desert dissociates the individual accessorial actor from equal criminal liability, and evidentially the secondary party is not truly ‘embedded’ in the criminal wrongdoing.

The proposed de novo facilitation offence herein draws, in part, upon alternative comparative criminal legal system perspectives, including New York. It conceptualises ‘facilitation’ as providing an individual with the plans or the opportunity to commit a crime, and adapts criteria that the BGH in Germany has established, as well as integrating innovative new propositions. The facilitation offence, as originally propounded, should be ‘quasi-excusatory’ within the panoply of participatory modalities, subject to a mandatorily discounted sentence.

A person is guilty of criminal facilitation when he intersects in the criminal offence perpetrated by another, by engaging in conduct which provides the means or opportunity for the commission thereof, and which, in fact, aids or encourages such a person to commit an offence. The jury will proportionally consider this determination as a question of fact and review: (1) The nature of the interest that the party has in the result; (2) The scope of the party's participation in the criminal act; and (3) The control, or otherwise, that the party had over the criminal act. Aid or encouragement does not have to be causal for the commission of the principal offence, but it suffices that it facilitates it, or makes it safer for the other party, whereby they feel more secure because of the participation of the aider or encourager.

1. Special defences to homicide and other offences may apply, predicated on evidentiary normalisations and reverse burden onus, where a complicitous actor can satisfy jurors as moral arbiters that a wholly volitional independent act by a perpetrator is applicable in the following variegated circumstances: (1) D2 did not reasonably believe that the principal offender intended to effect an act likely to result in death or grievous bodily harm, and their acts of assistance or encouragement co-related only to the propagation of non-serious harm; (2) D2 did not carry an offensive weapon during that fatal attack, or supply any such weapon to the principal offender; (3) D2 did not reasonably believe that D1 was armed with an offensive weapon at the time of the attack, or any other complicitous individual; (4) it is a special defence where D2 only provided, in accordance with their intentions, acts of assistance or encouragement in furtherance of any property crime, and not a crime against the person – including robbery, where only some force, albeit minor, was intended; and (5) D2 will be punished to a specified gradation level, less than otherwise, it proved by a preponderance of the evidence that his conduct did not cause to be committed the harm specific by the offence which he is held accountable. Individual personal liability will only apply for acts of assistance or encouragement that align with, and directly facilitate, offence commission. These reforms would beneficially charter an optimal reform of complicity principles, specifically addressing the causal salience of radical course of conduct departures by the perpetrator, the spectrum of imputed proportionality culpability, and sustainability of behavioural contribution to harm(s). The unconscionable ‘disgrace’ of definitional conduct element requirements (or non-requirements) for complicity that Dressler charted over thirty years ago is still ripe for reconceptualisation and reformulation.