Abstract
Complicity provides a perfect place from which to take steps towards a doctrinally clear and coherent criminal law. In particular, by acknowledging in the complex mass of cases a requirement that the accomplice contribute to the principal's crime. That takes effect differently in assistance and encouragement compared to procuring: (a) an accessory's assistance or encouragement must make a significant contribution to the principal's crime, but does not need to be a but-for cause, and (b) to procure an offence, an accessory must cause it in a but-for sense. This requirement flows from how complicity can be justified and determines the linguistic form of complicity. It extends to the end point of complicity: overwhelming supervening events and withdrawal on the one hand, and sentencing on the other. Fidelity to how we express, and label, the wrongs within participation are important parts of the work we expect it to do. That includes what the wrong in complicity is (and how participants are labelled), the limits in what one can do through another or intend another can do, the causal claims we make in complicity and the differences between forms of complicity. Without even a significant contribution, an accomplice is not meaningfully involved in the principal's crime
Keywords
In complicity, like many other areas of English law, legal actors routinely and mistakenly sacrifice precision about doctrine for the sake of a purportedly practical application of the law. It is too easily accepted that vague rules are the best answer for complex problems, even when that vagueness subverts the law's normative and linguistic foundations. Even the most extreme form of complicity, parasitic accessorial liability, was, in 1999 recognised as difficult: ‘Intellectually, there are problems with the concept… but they do not detract from its general practical worth’, 1 highlighting the choice being made between intellectual rigour and practical value. That choice could be made differently. English lawyers can take small but valuable steps to address this problem, and one sensible place to start is complicity. In particular, we could clarify the contribution a secondary party has to make to the principal's crime. The best way to develop the current law would be that: (a) an accessory's assistance or encouragement must make a significant contribution to the principal's crime, but does not need to be a but-for cause, and (b) to procure an offence, an accessory must cause it in a but-for sense. This would improve the criminal doctrine at the point of establishing liability, in ending liability, and in determining sentence. An accompanying advantage is that this proposal does not require that we forge a new consensus on complicity, or indeed a first consensus, on the theories underpinning complicity. Furthermore, by using the contribution in complicity as a starting point to push for greater doctrinal clarity, a wider improvement to criminal law more generally might be begun. Clarifying the need for contribution in complicity has been something the criminal law should have done already. 2 In the face of seemingly unresolvable tensions of principle, we can at least start to make progress towards a better criminal law by accepting that small steps towards coherent doctrine have value.
This is not a paper about the merits of
Instead of being about
The article considers complicity and its reform in four stages:
The normative gap in complicity; The importance of language in complicity; The threshold of complicitous conduct; and The end of complicity.
The key point is that even if we cannot define complicity perfectly, we need to do better at containing the risks caused by the flexibility and comprehensibility we crave. That is particularly so where, at the moment, those risks are being borne by defendants, and often, the most marginalised defendants in society.
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Small improvements in our law can easily be implemented by judges recognising threads from the existing law, while still centering the role of juries in finding facts and applying normative tests to those facts. The law on complicity has continued for decades with an approach of blurring justifications and foundational distinctions, such as between principal and accessory, and it could potentially continue doing so. However, this proposal offers the opportunity to make the law clearer, more intellectually rigorous, more internally coherent and align better with what lay people, and lawyers, think the law is doing. Such a law is more likely to be better understood and has a claim to be more likely to be followed. It also avoids treating complicity as an inchoate offence, only worse, since the accomplice would not need to contribute at all and yet would still be labelled as having done so.
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Normative Gaps
A first question is how complicity fits within the criminal law. If complicity liability is justified under mainstream criminal law, there would normally be some form of responsibility for conduct or outcome which the law has prohibited, and culpability in how that conduct or outcome came about. In fact, English law has a gap in how it justifies participation through complicity, yet relies on language which asserts that gap has been filled. Indeed, the language asserts to the world that the secondary party contributed to the crime.
Derivate Trial and Full Labelling
In complicity, the prohibited conduct/outcome is defined by the crime committed by the principal, and so too is the culpability required of the accomplice; accomplices are not made liable ‘some self-subsisting crime’. 9 ‘Derivative liability’ is therefore key to understanding English law.
The accomplice's liability is ‘derived from’ the principal's liability, but it is a special form of derivation. Derivation here does not have any sense of ‘lesser than’, like the work of a lesser artist copying a master. Rather, it means ‘equal to’. The accomplice is liable to be indicted, tried and sentenced as if a principal. This is set out in law from the 19th century, its current form being the Accessories and Abettors Act 1861, s. 8. Indeed, it does not matter if some of the jury think the defendant was a principal, and some think the defendant was an accessory. 10 Some special cases aside, discussed below, the principal must commit the offence before the accessory can be liable. All participants are then labelled in the same way as having committed the substantive offence.
This ‘derivative but treated as equal’ rule is well-established law, despite its inherent difficulties. The strongest practical argument in favour is in the ease for prosecutor narratives that the parties were ‘in it together’ and no distinctions need to be drawn between the participants. In some cases, that takes the form of a claim that distinctions cannot be drawn: that the evidence permits the conclusion that each defendant was either a principal or an accessory but we cannot prove which. In that situation, convicting them all for the same offence, rather than no offence, is an attractive proposition. However, there is an alternative: convict all as secondary parties. That would require a principal offence be proven, but no principal needing to be found. Arguably it does less unfairness to accept that, than to label and potentially punish all but one as a principal when they might be accessories.
English law's approach of equal labelling for principals and accessories arguably mischaracterises and misrepresents what the accessory did. 11 It groups all participants under the same label, such as “person convicted of murder”, wiping out all nuance in discussing a potentially huge range of contribution and culpability. 12 This can be problematic both for the label the accessory receives, but also for the asserted equality in what the accessory and principal did. It is far too blunt a labelling process. It does not properly engage with social understandings of law by labelling offences and offenders, and it is difficult to justify the automatic parity of labelling for all parties. 13 Depending on one's particular views about the role of criminal law, this might take the form of a critique of the morality of the wrongdoing, 14 or a less morally-based position. The key levels of labelling appear to be about its audience: the criminal justice system, the offender and the wider public, including any victim(s). On each level, offences generally, and participation in offences in particular, should be defined in a way that differentiates enough to obviously capture the wrongdoing they purport to prohibit. 15
The debate about whether the accessory should be convicted of the same offence as the principal is worth having, and is briefly referred to again, below (section ‘The Formulation of the Wrong in Complicity’). Fuller discussion would require more space, but the issue does tie in with the theme of this paper, of places where English law prioritises practicality over intellectual rigour.
Derivate Sentencing
While all participants are also liable to receive the same sentence, subject to narrow statutory exceptions,
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an accessory might well receive a lower sentence than the principal. Taking the example of Although the culpability of the secondary party may in many cases be less than the principal, the sentences must be viewed proportionately in the light of the policy of the law, that he who encourages the commission of a murder or assists with the commission is to be dealt with as a murderer.
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The line from
The culpability line from
It might be noted that far more structure in sentencing nuance between accessories and principals has been achieved in other legal systems. In some, defined discounts in sentencing for secondary parties exist in the criminal code, 33 and others have guidelines for a structured reduction based for some accomplices, for example, those who were ‘minimal participants’ in a criminal offence. 34 It is not completely clear whether this flows only from culpability differences, or also from responsibility, particularly causation.
Normative Gaps
Here is the conundrum: what contribution and culpability is enough to make a person an accomplice (and thus liable to be treated, labelled and sentenced as a principal) but also one who might be sentenced to less punishment for reasons at least related to that contribution and culpability?
In part, the conundrum might come down to how legal actors construct liability. Liability is first determined by thresholds, binary tests which are sequentially passed. This is then expressed in a scalar output, a sentence. However, the threshold appears to be very low, bringing the trial, label and sentencing outcome into play for many more cases.
More than that, the threshold appears to ignore the very thing that the labelling of participation requires: that there was aiding, abetting, counselling or procuring. The meaning of those words will be discussed in the next section. We turn first to consider the normative gap in justification for complicity liability: how does the criminal law justify and delimit liability in complicity now.
The short answer, well-known amongst those working in the field, is that there is no clear justification and limitation. Courts rarely do better than the Supreme Court in In the language of the criminal law a person who assists or encourages another to commit a crime is known as an accessory or secondary party. The actual perpetrator is known as a principal, even if his role may be subordinate to that of others. It is a fundamental principle of the criminal law that the accessory is guilty of the same offence as the principal. The reason is not difficult to see. He shares the physical act because even if it was not his hand which struck the blow, ransacked the house, smuggled the drugs or forged the cheque, he has encouraged or assisted those physical acts. Similarly he shares the culpability precisely because he encouraged or assisted the offence.
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Principals
Quantifying the portion of the main offence shared by the accessory is difficult. For a start, how English law decides who commits a crime as a principal is itself unclear. The simple understanding is that it is the person who fulfils the physical elements/actus reus of the offence. However, as soon as there is more than one person involved in the crime, more than one might be involved in bringing about those physical elements. There does not appear to be any clear test for how much is enough. In In
Under Lord Kerr's analysis, ‘a contribution’ from each individual was enough to make a person a joint principal. The very fact that the definition of principal remaining unclear is made less practically problematic by accomplices being able to be treated as principals for trial and sentencing. 37 There is still the difficult decision of how to distinguish the principal from the accessory, and whether contribution to the commission of the crime is a useful mode of analysis. This article argues that contribution is a useful marker, but there is a great difference in scale and role between the principal and the accomplice.
Causation in Complicity?
The case authorities on causation within complicity do not offer a clear answer to our conundrum of what contribution and culpability is enough to make a person an accomplice. Most judges seem to appreciate some causative role, but without being able to label it as a but-for cause, they have not agreed an alternative test. To take one of the most recent examples, prior to moving to the Supreme Court, Toulson LJ attempted a formulation of a causal requirement in the Court of Appeal in The prosecution do not have to satisfy a ‘but for’ test, i.e. that P's act would not have happened but for D's assistance or encouragement:
In We must therefore approach the question raised on the basis that we should give to the word ‘counsel’ its ordinary meaning, which is, as the judge said, ‘advise’, ‘solicit’, or something of that sort. There is no implication in the word itself that there should be any causal connection between the counselling and the offence. It is true that, unlike the offence of incitement at common law, the actual offence must have been committed, and committed by the person counselled. To this extent there must clearly be, first, contact between the parties, and, secondly, a connection between the counselling and the murder. Equally, the act done must, we think, be done within the scope of the authority or advice, and not, for example, accidentally when the mind of the final murderer did not go with his actions… We see, however, no need to import anything further into the meaning of the word, unless authority drives us to do so. It is of course possible, and both counsel took this course, to take examples of cases which appear to be anomalous, whichever construction is put upon the wording. Such anomalies do not, in our view, assist. There will always be cases in which difficulties are raised and they are disposed of in the ordinary way by sensible action on the part of the prosecuting authority. So far as the authorities are concerned, there are in them, we accept, phrases which may appear, at any rate at first sight, to assist the view put forward by Mr. Carman.
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proffered advice or encouragement which has no effect on the mind of the principal offender is not counselling… This is not to say that the counselling must be a cause of the commission of the offence. So to require would be to insist that the counselling must be a sine qua non of the offence—i.e., that Dl would not have committed the offence if he had not been counselled.
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In a case of encouragement, as contrasted with assistance, the Law Commission suggested that the encouragement ‘must have the capacity to act on P's mind’. Similarly, KJM Smith argued that rather than proving an effect in fact, it should be shown the conduct ‘at least carried the potential to cause or help the principal to act in the way he acted’. 48 Smith's work is persuasive. It highlights how frustrating the authority is on the relevance of causation was in the mid-1980s, and it is not clear it has significantly improved since then. Smith’s view was that the fact that principal offence has to be proven to have been committed shows that even in the case of encouragement, there is an underlying causal basis. For the assisting form of complicity, there an inescapable assumption of some causal contribution or influence. 49
Causation Calling for a Formulation
As already noted, the same underlying thread of causation has not been tied up into a practical test. The way that the court put it in
Perhaps the most important difficulty with
A case also sometimes cited to support the argument that causation is needed in complicity is there must be some connection or causal link between the counselling, aiding and abetting and the commission of the offence… whether that causal link can be described as substantial or simply a connection, in our opinion there was sufficient evidence before the jury upon which it could properly conclude that such a causal link or connection was sufficiently substantial to satisfy this requirement.
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The court raised a formulation of ‘material contribution’ to an offence: the accessory's conduct should be ‘treat[ed]…as materially contributing to the commission of the offence, whether or not P would have acted in the same way without such encouragement or assistance’. 56 The idea of material contribution is known to tort law, covering situations where a defendant's conduct was not necessarily a but-for cause but influenced in a measurable way the outcome. 57 It has a niche use in tort law in narrow situations where requiring the claimant to prove that but for the defendant's wrong, the claimant would not have suffered the loss, would lead to unacceptable results.
Toulson LJ went on: D's conduct must have some relevance to the commission of the principal offence; there must, as it has been said, be some connecting link. The moral justification for holding D responsible for the crime is that he has involved himself in the commission of the crime by assistance or encouragement, and that presupposes some form of connection between his conduct and the crime.
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Toulson LJ thus went further than just countenancing a ‘material contribution’, he also considered what might happen There may be cases where any assistance or encouragement provided by D is so distanced in time, place or circumstances from the conduct of P that it would be unjust to regard P's act as done with D's encouragement or assistance.
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We are left, in the words of Toulson LJ (and Glanville Williams), trusting to the good sense of juries as triers of questions of fact as well as the fairness of prosecutors in selecting charges. This is quite a surprising amount of trust since the logical consequence is that they are given no directions on the meaning of ‘aid’ nor how to apply it to the case in hand. In effect, the case law does not offer clarity and we are forced to leave the matter to ‘common sense’ in laypeople and prosecutors; again, prioritising what some see as a practical approach over doctrinal or intellectual rigour: Whether D's conduct amounts to assistance or encouragement is a question of fact. Professor Glanville Williams commented in
There is a further, instrumental, reason for complicity, in that it might provide ways to convict despite problems of evidence. Evidence can be difficult to obtain for many offences, but it might be particularly difficult in complicity cases. Multiple parties involved in the crime might make the evidence opaque. Hence a defendant can be convicted without it being proven whether she or he was an accessory or a principal. This is particularly valuable for a group of offenders, and especially for unplanned crimes where there might be no earlier trail of evidence. However, this kind of reasoning is not a justification, just an intuitive appeal to convict because it suits a particular policy. Lord Hutton came close to saying as much in
Academic Engagement with Causation in Complicity
Academics have presented a range of options for the core justification of complicity. This paper does not claim to be building a new justification, and indeed, aligns with a significant body of existing work. It attempts to show how a concrete proposal for recognising a significant contribution to the principal's crime as a requirement of liability for assisting or encouraging would improve specific parts of the law. This might be useful across the wide range of roles that an accomplice might perform in connection with a principal. 65
Many commentators have argued that some level of causative contribution is needed. Perhaps most fully articulated was KJM Smith' argument that there has been some residual sense of consequence and linkage between the accessory and the principal: It has always been implied in the concept of complicity that [D's] involvement … did make some difference to the outcome and as a consequence of this, accessories have been implicitly linked to the harm element in the principal offence.
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By contrast, Kadish frames the accessory's contribution not in terms of causation about the crime, but rather in terms of influencing the will of the principal. 71 He rejects the possibility of describing the accomplice as causing the action of the principal, instead the principal ‘freely and voluntarily chose to act’. 72 Other arguments in this direction have been made, at times including a preference for inchoate liability. 73
Finally, Rebecca Williams has recently argued for the importance of causation in complicity, perhaps as a form of ‘semi-causation’. 74
There is another group who point out some difficulties with how to apply causation within complicity. A leading critic was Glanville Williams, and that criticism was recently amplified by Catarina Sjölin.
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Williams wrote in 1989 that: Principals cause, accomplices encourage (or otherwise influence) or help. If the instigator were regarded as causing the result he would be a principal, and the conceptual division between principals…and accessories would vanish. Indeed, it was because the instigator was not regarded as causing the crime that the notion of accessories had to be developed.
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Williams’ expression of the issues was quoted with approval by Lord Bingham in one of the leading criminal law cases on causation,
The claim, made by Williams, Bingham and Sjölin, that to require causation by the accessory would be to make the accessory into the principal, and therefore must be resisted, seems appealing at first. It provides something that looks like a distinction between principal and accessory. However, it might be doubted on both practical and theoretical grounds.
First, it must not be forgotten that that does not seem to be a distinction the rest of the law of complicity values. For over 170 years English law already treats accessories as if they were principals for trial, labelling and sentencing, so the only difference remaining is in the test for being a principal or an accomplice. That is, as discussed above, one that seems to turn first on causation, and to a lesser extent, as discussed below (under ‘The Importance of Language in Complicity’) on the fault elements. And that difference does not therefore have any effect in practice. More generally, not requiring causation at all simply makes it easier to convict, and that person will then be treated as a principal. This is hardly protecting the value of a difference between principals and accessories.
Second, on theoretical grounds, if the definition of a principal's role in causation is imprecise, it is not obvious that it formed the grounds for differentiating complicity and principalship. Instead, there is an opportunity now for different levels of causation to ground those two forms of participation. Picking up what Lord Kerr said in
The Importance of Language in Complicity
As noted already, the language we use to describe wrongdoing is an integral element of the existence of that wrongdoing, for the public, the defendant, the victim(s), and the wider justice system. The labelling of the offence in criminal law is important. Less commonly remarked upon is the need for the right language for the constituent parts of liability. That applies for components of liability like fault terms including intention and recklessness no less than elements like causation and consent. For present purposes, it is the language of complicity that is important. Four examples of the importance of phrasing complicity correctly will be considered here: (a) the wrong in complicity, (b) the limits of complicitous verbs, (c) the forms of complicity and (d) distinguishing between forms of complicity.
The Formulation of the Wrong in Complicity
The first example of the importance of language in complicity is what the accomplice is connected to: the principal, or the crime. ‘It is the assistance, not the ultimate crime, that must be intended by the secondary party’, or so the English Court of Appeal wrote in If the crime requires a particular intent, D2 must intend to assist or encourage D1 to act with such intent. D2's intention to assist D1 to commit the offence, and to act with whatever mental element is required of D1, will often be co-extensive on the facts with an intention by D2 that that offence be committed. Where that is so, it will be seen that many of the cases discuss D2's mental element simply in terms of intention to commit the offence. But there can be cases where D2 gives intentional assistance or encouragement to D1 to commit an offence and to act with the mental element required of him, but without D2 having a positive intent that the particular offence will be committed. That may be so, for example, where at the time that encouragement is given it remains uncertain what D1 might do; an arms supplier might be such a case.
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In cases of concerted physical attack there may often be no practical distinction to draw between an intention by D2 to assist D1 to act with the intention of causing grievous bodily harm at least and D2 having the intention himself that such harm be caused. In such cases it may be simpler, and will generally be perfectly safe, to direct the jury (as suggested in
Stating that the defendant was an ‘accessory to murder’ is a simple and common shorthand. The full form, something like ‘accessory to the principal committing murder’ or ‘assisted/encouraged the principal to commit murder’, is clearly more cumbersome. English law has adopted the derivative liability principle, thus in general the accessory's liability is tethered to the principal's. As the Supreme Court note, in group violence cases there might be little harm in the slip of language that the accessory is connected to the
In addition, this language issue becomes more pressing if the fair labelling difficulties with labelling an accessory as having committed the offence are taken seriously. One option would be to replace the Accessories and Abettors Act 1861 with a secondary party is convicted of the offence of ‘being a secondary party to X offence’. In form it would mirror the inchoate liability under, say, s. 1 of the Criminal Attempts Act 1981. For example, D
The Limits of Complicitous Verbs
We turn now to purported problems of language legal actors which affect participation generally, and complicity in particular. This brings us to a discussion of when you can act through another, and what you can intend another to do. Both are important in setting limits on what causative role an accomplice can perform, as well as the underlying argument about the importance of language in complicity.
What Can You Do Through Another?
The first example is about what one can
Some have argued
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that the English language does not always permit a person to be described as performing a verb
It is difficult to be sure of the logic underlying this claim about the limits of some verbs. It appears to be a difficulty with an unknown number and range of verbs being used indirectly, mediated through another human agent. Agency like that in everyday and non-criminal use might not have featured these kinds of fact patterns, leaving a sense of unease in the use of the verbs. Agency, in its wider and lay sense, of one acting on behalf of another, might not normally in everyday usage have included sexual activity. So too, driving seems to involve more individual voluntariness than might in common parlance be described as permitting the control to be another's. The same might be true in other languages, particularly cognate ones. This is not an instance where the claim is articulated that legal English must track common usage; it is most commonly stated or assumed simply that the verbs do not permit this use at all. No evidence for this restrictive reading is typically cited. And even if verbs were so restricted in the past, it does not seem to be necessary now. No confusion would be caused using verbs indirectly, or mediated through another agent, if used carefully and appropriately, as all words should be in a legal context.
If the claim, that there are some actions which one cannot commit through another, is treated as correct, innocent agency will be ruled out and such situations will have to be handled through complicity. In particular, English law developed an exceptional form of complicity,
However, after
Similarly, what of where the wrong only exists because of some quality of the person who actually carries out the physical components? Thus, the offence of bigamy is constituted when D
What Can You Intend About Another?
The second example of a problem of linguistics is what one can Save in special cases of causing or procuring, S cannot intend
This is deep philosophical water. It might help to separate intention into
The law currently has no other terms but intention to capture purpose with regard to an object within the canon of mens rea. If we wish to describe the accessory's mental state as a purpose about the principal's conduct and mental state, intention is the only word we have. If ‘intention’ is inapt to describe an accomplice's mental state about the principal's acts and mental state then that would leave a gap. Note, the idea of ‘intending to help’ another, which the law still requires in any case, is not directly about the mental state of the other, it is about the accessory's mental state about the effect of the accessory's conduct.
One option is to describe A's conduct in a different formulation. The closest we have is offences where an additional fault element is added on to conduct, but not in the common method of an ‘ulterior intent’, like ‘intending thereby to injure, aggrieve or annoy’ in s. 24 OAPA 1861. The main example of this form of non-‘intention’ purpose in mens rea is a formulation about purpose, in particular ‘for the purpose of’. This formulation of the fault of a person is relatively rare. One example is in the offence of voyeurism, ‘for the purpose of obtaining sexual gratification’ in s.67(1) Sexual Offences Act 2003). This phrase does not perform the same semantic work as ‘intention/intend’, and its core use is in offences where there is already some conduct and other mental state already engaged. However, it does lead to a similar outcome. One problem in using it is how rare the formulation is in existing law. The other problem is that if we were to start using it here, it would be unclear why we do not use it in the rest of the law. The argument might go that, if intention is meant to capture purpose, why not just refer to ‘purpose’ throughout. This might be worth considering. Nonetheless, while using a mens rea term of ‘intention’ clearly has some problems, but it is unlikely that anytime soon we could replace it.
Similarly, while a new term might be found, though inserting it into the criminal law might be difficult, since English law has not added a new fault concept for nearly a century, not since recklessness was inserted (albeit that it was not given its present two-limbed form until the late 1970s). 97 It is also not clear what this term would be.
At least for the moment, the better option is to consider whether the linguistic limits of ‘intention’ are, ultimately, a choice. Just like Glanville Williams having a preference for
The same logic looks unremarkable elsewhere in the criminal law, such as within impossible attempts. Under the Criminal Attempts Act 1981, s. 1(2), a person is liable for attempting to carry out a crime that is in fact impossible to commit. This includes something being impossible in the way the defendant attempted. Section 1(3) makes clear that even if the intention to carry out the course of conduct which would amount to an offence is in some way defective, it will still be sufficient if the facts were as the defendant believed them to be. The logic seems to be that the defendant must believe that his means can influence the outcome of the attempt. In the same way in complicity, when assisting, encouraging or procuring the principal, the accessory must intend to assist, encourage or procure. What makes the accessory liable for, say, murder, is his intention to be an accessory to murder. That involves the accessory intending that the principal intend to kill or intend to cause grievous bodily harm, an intention that the accessory must have while encouraging, assisting or procuring.
Causal Claims in Complicity Language
Having addressed the limits of the language we use for verbs of complicity, we return to the underlying problem: that those verbs and the very language of complicity relies on causal claims. The opposite claim would seem ridiculous but for the fact that it is routinely made. How can A ‘assist’ B if B does not benefit in any way? How does A ‘encourage’ B if B is no more likely to commit, or interested in, the crime? To create a separate and technical legal meaning to ‘assist’ or ‘encourage’ might be permissible in certain circumstances, but to strip them of a core of their lay meaning is illogical and damaging to the criminal justice system generally.
That the terms assist and encourage, no less than procure, require a form of causation is also supported by other rules in the same context. One option would be to prosecute under the Serious Crime Act 2007, Part II. Encouraging or assisting a crime, intending or believing it would take place under ss. 44–46 of the Act covers conduct which is capable of encouraging or assisting a crime. There are some ill-defined limits to what that covers, along with some difficult issues of impossibility under the Act, but the very fact that the Act had to use language of ‘capable of encouraging or assisting’ in those sections, makes it clear that it sought a wider scope than normal accessorial liability. An act which in fact could not assist or encourage should not be included within the scope of liability there, just like it should not be sufficient for complicity.
Indeed, Parliament removed the possibility of liability for attempting to assist or encourage in the Criminal Attempts Act 1981, s. 1(4)(b). However, if complicity does not require any proof of causation, the criminal law seems at the least to be subverting much of the effect of that Parliamentary rejection. That is, if the assistance or encouragement need not have any causal effect within complicity, there is much less pressure to consider liability for doing acts which were more than merely preparatory to assistance and encouragement.
The place that these causal claims are strongest is in procuring, but there are further nuances to the meaning of these terms. We therefore turn to consider the different forms of complicity.
Distinguishing Between Forms of Complicity
The modern use is to truncate the ‘aid, abet, counsel and procure’ found in the Accessories and Abettors Act 1861, s. 8. These four physical element words are often, in modern language, summarised as liability for one who ‘assists or encourages’. There ‘aids’ equates to ‘assists’ without difficulty. However, ‘abets, counsels or procures’ is mostly, but not completely, equivalent to ‘encourages’. In particular, while presence at the scene of the crime is the only thing that distinguishes abetting (present) from counselling (absent), procuring could cover more than encouragement, in that it need not involve communication with the principal. For that reason, while three modes are practically important (excluding abetting as a separate mode), all four will be discussed below.
More than simply a matter of language, the content of each term has had a significant impact on the development of secondary liability more broadly, especially its fault element. That is, different modes of being a secondary party tend to provide different justifications for liability as well as different standards of, and evidence for, fault. The nuance that we need to engage in here is in respect of what has been called ‘consensus’, a ‘meeting of the minds’.
Perhaps the clearest exposition of the four modes of accessory liability came in
Lord Widgery C.J., giving judgment for the Court of Appeal, agreed in large part with the trial judge who: took the view that in the absence of some sort of meeting of minds, some sort of mental link between the secondary party and the principal, there could be no aiding, abetting or counselling of the offence within the meaning of the section. So far as aiding, abetting and counselling is concerned we would go a long way with that conclusion. It may very well be, as I said a moment ago, difficult to think of a case of aiding, abetting or counselling when the parties have not met and have not discussed in some respects the terms of the offence which they have in mind. But we do not see why a similar principle should apply to procuring. We approach section 8 of the Act of 1861 on the basis that the words should be given their ordinary meaning, if possible. We approach the section on the basis also that if four words are employed here, ‘aid, abet, counsel or procure’, the probability is that there is a difference between each of those four words and the other three, because, if there were no such difference, then Parliament would be wasting time in using four words where two or three would do. Thus, in deciding whether that which is assumed to be done under our reference was a criminal offence we approach the section on the footing that each word must be given its ordinary meaning.
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procuring requires causation but not consensus; encouraging requires consensus but not causation; assisting requires actual help but neither consensus nor causation
100
Turning now to each of the four historic terms: aiding, abetting, counselling and procuring, it is evident that their common meanings lend themselves more easily to certain fault element configurations and justifications for liability and raise questions for causation too.
There was not accidental presence in this case. The appellant paid to go to the concert and he went there because he wanted to report it. He must, therefore, be held to have been present, taking part, concurring, or encouraging, whichever word you like to use for expressing this conception. It was an illegal act on the part of Hawkins to play the saxophone or any other instrument at this concert. The appellant clearly knew that it was an unlawful act for him to play. He had gone there to hear him, and his presence and his payment to go there was an encouragement. He went there to make use of the performance, because he went there, as the magistrate finds and was justified in finding, to get ‘copy’ for his newspaper.
105
To procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening. We think that there are plenty of instances in which a person may be said to procure the commission of a crime by another even though there is no sort of conspiracy between the two, even though there is no attempt at agreement or discussion as to the form which the offence should take. In our judgment the offence described in this reference is such a case.
109
Indeed, the line between procuring and counselling/encouraging can be difficult to draw. In practice, it is not normally necessary to do so, and hence how the Supreme Court in A, a scout, sees B, an elderly person, who was standing by a pedestrian crossing, looking from one lane of traffic to the other. A, determined as a scout to support others, assertively takes B's arm, and walks B across the crossing. Does A ‘help’ B? Arguably, only if it was B's purpose to cross the street. If B is in fact watching the road for a car to arrive to collect B, crossing to the other side might not further that purpose at all. It could, however, be procuring: A might be said to procure B crossing the road. The difference is that procuring does not require furthering B's purpose. Similarly, if A merely shouted ‘Go on, cross the road’, does A ‘encourage’ B? First, B might not hear A, so there would be no encouragement even on the current interpretation of the rules. Second, B might not care what A thinks, and the encouragement might have no effect. Indeed, it is even possible that A's comment makes B less likely to proceed; that B might still proceed cannot make A's comment into encouragement. And third and finally, A only encourages B if A shares the aim of B crossing the road.
To summarise the current way complicity is conventionally said to apply: would look like this.
The better position would be to articulate the requirement that, outside of procuring, of ‘significant contribution’ is needed. It would make the law clearer, reducing the risk of misunderstanding and the transaction costs in applying it. It would better justify complicity liability, as well as align with the language the nature of the offending relies on to be understood and to convey censure. It also helps to avoid unjust results. In particular, it meaningfully links the liability a person faces for their responsibility and culpability for the actions of another. That would be expressed in the following way:
In these diagrams, ‘furthering’ is used to indicate that the accomplice is supporting the plans of the principal. Common Purpose (‘CP’) is not needed for any form of complicity. It is sufficient, but it is not necessary. The accessory need not intend the crime to take place. The next section turns to consider what ‘significant contribution’ is.
111
Threshold for Complicitous Conduct
The paper so far has shown that even though there are weak normative foundations for the law of complicity as it is now, it has adopted a doctrinal position which does not make use of the most normatively defensible set of requirements for liability. Some minimum level of contribution by the accessory to the principal's crime must be required. Without it, we would be in conduct crime or inchoate crime and that is clearly not how the law is treating accessories, for trial, sentencing or labelling. The criminal law is certainly capable of employing a non-but-for form of causation and complicity is the only place where that would be justified so far. The weak normative justifications can support that, at least.
Now is the ideal time to bring some rigour to the contribution that an accessory must make to the principal's crime. This is a step judges can take immediately. This would be a much smaller change than those in
The best position is a two-part approach: to be liable for assisting or encouraging a crime, the accomplice must make a substantial contribution to the principals’ commission of it; to be liable for procuring the principal's crime, the accomplice must bring the crime about. Put in reverse, why should we be criminalising a purported accessory for an insubstantial contribution? The only reason seems to be that criminalising more easily is a good thing. To defend that on deontological grounds would be very difficult; to defend it on instrumental grounds would need a lot of evidence, that has so far not been shown. If there was no contribution, then we are dealing not with derivative liability, but inchoate liability; that is, complicity is not the appropriate area of criminal law but there might be an offence elsewhere, particularly under the Serious Crime Act 2007.
The change to recognising ‘substantial contribution’ would be open to courts to make as an incremental development in the law from
Alternatively this recognition could be given effect by legislation, but that does not seem necessary in fact. Indeed, legislation already uses this causative language elsewhere.
The phrasing of ‘significant contribution’ is used elsewhere in the criminal law, to highlight non-but for causes which are none the less relevant to our decisions about the relevance of an issue. The most obvious example is in respect of the partial defence of diminished responsibility, which leads to a conviction for manslaughter, not murder. 116 The Supreme Court has felt able to rely on the jury's good sense of what a sufficient enough contribution was. 117 This would be, like many things within complicity, is still a jury question. Jogee emphasises that in general terms. While there are reasons to re-consider how much we use juries to decide substantive questions of law, the level of contribution can meaningfully be given to a jury. Another phrasing, ‘material contribution’ is used in tort law, as already noted. However, that approach would normally lead to liability for the proportion of the harm caused, not the whole loss. That proportional causation approach does not fit the binary approach to liability for a given offence that the criminal law displays, and as such a different form of language would better mark out the role the test is playing within criminal law. “Significant contribution” uses language better suited to the role of the jury and chiming with existing language elsewhere in criminal law. It remains a jury question, but one where it might be possible over time to give examples if they were truly needed.
Note the new test is not formally a reversal of the burden of proof. Its application might nonetheless might in practice ask whether the evidence raises an inference of contribution. Doing acts which
The End of Complicity: Overwhelming Supervening Events and Withdrawal
A final benefit of tightening the expression of the requirement of an accessory's contribution is that it might assist with working out the ending of a person's liability through complicity. The core issue is how causation, if formally irrelevant, can be relevant to some concepts designed to remove or reduce the accessory's criminal liability.
It has already been shown that the current approach to sentencing does not categorically differentiate the principal from the accessory as a matter of law, nor formally, as a matter of sentencing guidelines. The two factors that are raised in judicial discussion about sentencing accessories seem to be the
Aside from a conviction and sentencing, the two ways we are interested in are the newly formulated ‘overwhelming supervening event’ and the established defence of withdrawal. In a sense, they are the flip side of the same coin. In an overwhelming supervening event, defendants argue that their contribution has been eclipsed by something the principal did; in withdrawal, defendants argue that they themselves have removed their participation from the scope of liability. It would be absurd if only accessories who had causally contributed to the principal's crime could avail themselves of overwhelming supervening event or withdrawal. That does not appear to be what the limited case law says either. If it did those who had done less towards the crime would have fewer ways to reduce or remove liability, which is hard to justify. It would also raise doubts about the very function of the defences: if no responsibility for the principal's crime is required, such as when there was an overwhelming supervening event or withdrawal, why have defences which at least in part deny causation?
Overwhelming Supervening Events
The precise character of this concept is unclear, but in practice it operates as something the defendant must first raise. The defendant argues that the prosecution has not proven its case by raising evidence that there was in fact not assistance or encouragement (or surely, procuring) at the point the crime was committed. There might have been in the past, but overwhelming supervening events intervened. In some overwhelming supervening act by the perpetrator which nobody in the defendant's shoes could have contemplated might happen and is of such a character as to relegate his acts to history.
118
Conversely, there may be cases where anything said or done by D2 has faded to the point of mere background, or has been spent of all possible force by some overwhelming intervening occurrence by the time the offence was committed. Ultimately 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. An early example is R v Hyde (1672), described in A, B and C ride out together with intention to rob on the highway. C taketh an opportunity to quit the company, turneth into another road, and never joineth A and B afterwards. They upon the same day commit a robbery. C will not be considered an accomplice in this fact. Possibly he repented of the engagement, at least he did not pursue it. Nor was there at the time the fact was committed any engagement or reasonable expectation of mutual defence and support, so far as to affect him. In other words, on the particular facts A and B were not regarded as having committed the robbery with C's encouragement or assistance. Any original encouragement was regarded as having been spent and there was no other assistance. (It appears from Hale's account that C parted from A and B at Hounslow and that the later robbery took place three miles away.)
119
He did not assent that the daughter should be poisoned, but only that the wife should be poisoned, which assent cannot be drawn further than he gave it, for the poisoning of the daughter is a distinct thing from that to which he was privy, and therefore he shall not be adjudged accessory to it.
123
Plowden's commentary on the case in his report attempts to draw a distinction using other examples, set out below. His commentary is a good summary of the views of earlier commentators. Before turning to the specific examples he draws on, however, it is important to understand the difficulty he faced in drawing such a distinction. This is highlighted by how Plowden himself bookends his examples: Note, it seems to me reasonable that he who advises or commands an unlawful thing to be done shall be adjudged accessary to all that follows from that same thing, but not from any other distinct thing… But I greatly approve of the said opinions of the justices concerning the accessary in the case before reported, because the poisoning of the daughter was a distinct fact, to which Archer gave no advice nor counsel, and whose death he did not procure.
124
This example might highlight the continued relevance of the rule that an intentional departure from an agreed plan can end any liability the secondary party had, a rule that predates the modern formulation of overwhelming supervening event. 125
There is now appellate case law on overwhelming supervening events which addresses this issue,
126
in Once encouragement or assistance is proved to have been given, the prosecution does not have to go so far as to prove that it had a positive effect on D1's conduct or on the outcome: In our view, that passage is an insuperable obstacle to the suggestion that the concept of OSA should be viewed through the lens of causation. To the contrary, as the Supreme Court in the next two sentences in paragraph 12 explain, it is encouragement and assistance principally that count. As it seems to us, the Supreme Court in these paragraphs in
Instead, the UKSC's earlier reluctance to see as relevant a level of causation short of but-for, misled the Court of Appeal into rejecting the obvious mode of operation of the overwhelming supervening event concept.
Accepting that some causative link must be required, in the form of a substantial contribution for assistance or encouragement, neatly brings overwhelming supervening event within the mainstream and guides juries in their decisions. The question is first, what level of contribution through assistance or encouragement did the accessory provide. Then, second, did that persist to the point that the principal committed the offence? The alternative that
Withdrawal
Withdrawal is a complex area of law, with a deeply uncertain set of tests. While inchoate liability for assisting or encouraging under the Serious Crime Act 2007, conspiracy and attempt will be unaffected by a withdrawal, liability through complicity can be ended by the defendant in certain circumstances. It is generally accepted that a person can withdraw up to the point that the principal goes far enough to have committed an attempt. 130 The test is unclear largely because two elements are in tension: a reduction in the contribution to P's crime, and a sufficient removal of culpability.
First, the erstwhile accessory must ‘serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw’, according to
Second, in for there to be withdrawal, mere repentance does not suffice. To disengage from an incident a person must do enough to demonstrate that he or she is withdrawing from the joint enterprise. This is ultimately a question of fact and degree for the jury. Account will be taken
It is entirely unsurprising that breaking the causative link should be relevant to withdrawal since, as this article argues, substantial contribution should be needed to generate liability to begin with. A test for withdrawal is hard to set up in general terms, but the courts have made clear that the accessory normally need not prevent the crime. This is the flipside of the accessory's contribution not needing to be a but-for cause of the principal's offence at the start.
In short, if we more fully acknowledge the requirement that encouragement be causal, then this helps clarify what contribution must be cancelled in order to successfully withdraw.
Concluding Contribution
This paper has suggested some small but significant changes to the operation of the law of complicity to bring it greater doctrinal and linguistic rigour. Building a criminal justice system on claims of practicality, but in fact calling on lay people to apply vague doctrine is too uncertain, too risky and too likely to produce unjust results across the jurisdiction. In particular, the apparent practicality of the current interpretation, that assisting and encouraging are non-causal, harms the value of the claim that the law of participation has. It exacerbates further the failures of fair labelling already in this area of law. The article proposes recognising that for an accessory to assist or encourage a principal, the accessory must make a ‘significant contribution’ to the principal's crime. These are terms and concepts well-known to the criminal law, and can be left to juries to apply. If the accessory has not even made a significant contribution, the liability inchoate, rather than being a form of participation, and should not be shoehorned into complicity. By putting slightly more attention into the doctrinal rigour of the contribution an accomplice has to make to the principal's crime, we improve the law of complicity generally. That includes both substantive legal issues, such as the test for being accomplice. It also includes matters of sentencing and ending complicity by clarifying overwhelming supervening event and withdrawal. These changes in complicity would also highlight the potential for small sequential changes to make a tangible contribution to the wider improvement of the criminal law.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship and/or publication of this article.