Reform of Anglo-American Complicity Law: Conduct, Connectivity and Comparative Solutions
| Author | Alan Reed |
| DOI | http://doi.org/10.1177/00220183221123462 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Articles |
Reform of Anglo-American
Complicity Law: Conduct,
Connectivity and Comparative
Solutions
Alan Reed
Northumbria Law School, Northumbria University, UK
Abstract
The challenge presented by extant Anglo-American complicity law is that it intractably homo-
genises 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-pro-
portionality standardisation, reviewable via evidentiary perspectives in terms of actual interces-
sory conduct. A critique of alternative legal system approaches to complicitous behaviour,
notably the Germanic Criminal Code, provides further significant insights towards the adapta-
tion of a new accessorial liability framework. This broadened template promulgates a syn-
chronous 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 –ade novo facilitation offence as propounded subsequently,
and consideration of reverse burden of proof.
Keywords
Complicitous behaviour, instigation and aiding, comparative perspectives, intercessory
conduct, disavowal, imputed proportionality, novel reform template
Corresponding author:
Alan Reed, Professor of Criminal and Private International Law, Northumbria Law School, Northumbria University, Newcastle
upon Tyne NE1 8ST, UK.
Email: alan.reed@northumbria.ac.uk
Article
The Journal of Criminal Law
2022, Vol. 86(6) 441–487
© The Author(s) 2022
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DOI: 10.1177/00220183221123462
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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 commis-
sion 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 equi-
paration 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 reasoni ngha s been applied to ‘connect’the accomplice to the full cri me, and alter-
native theoretical perspecti ves advanced to justify complicity an d the boundaries of imputed culpabil-
ity.
8
In truth, however, whilst differen t yardsticks have been applied to this elusi ve ‘connectivity’
conundrum, and a search for a p erpetrator –secondary par ty common thread, it remains difficult to
explain, yet alone justify.
9
Complicity activity is whol ly different in temporal indiv iduation, reach,
and impact on the substantiv e offence that transpires : ‘[W]hy does the criminal law potentially
equate the villainy of an Iag o with the loyalty of a spous e who furnishes a lunch to he r perpetrator –
husband?’
10
A fundamental issue for reap praisal is, consequently, whe ther we can continue with
extant rules, across differ ent Anglophone jurisdictions that treat principa l and secondary party offenders
alike in terms of culpability an d blameworthiness.
11
Moreover, whether it is still conscionable to fail to
1. KJM Smith, A Modern Treatise on the Law of Criminal Complicity (Clarendon Press, Oxford 1991), at 4.
2. See Jacob Kreutzer, ‘Causation and Repentance: Re-examining Complicity in Light of Attempts Doctrine’, (2008) 3 New York
University Journal of Law and Liberty 155, at 195: ‘Accomplice liability currently treats all complicit liability the same, regard-
less of its relative impact on the substantive crime committed. Changing this standard is not only desirable as a matter of legal
principle, but is also, a practical thing to do’.
3. See generally, John Gardner, ‘Complicity Causality’(2007) 1 Criminal Law and Philosophy 127.
4. See Jeremy Horder, Ashworth’s Principles of Criminal Law (Oxford University Press, 9th edn 2018) 455–458.
5. See Joshua Dressler, ‘Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to anOld Problem’
(1985) 37 Hastings Law Review 91, at 111.
6. See Robert Weisberg, ‘Reappraising Complicity’(2000) 4 Buffalo Criminal Law Review 217, at 224: ‘[C]omplicity is not a dis-
tinct crime, but a way of committing a crime; and see generally’, GR Sullivan, ‘Complicity for First Degree Murder and
Complicity in an Unlawful Killing’(2006) Criminal Law Review 502; David Lanham, ‘Complicity, Concert and Conspiracy’
(1980) 4 Criminal Law Journal 276; Dennis J Baker, ‘Lesser Included Offences, Alternative Offences and Accessorial
Liability’(2016) 80 Journal of Criminal Law 446; and Jeremy Horder and David Hughes, ‘Joint Criminal Ventures and
Murder: The Prospects for Law Reform’(2009) 20 King’s College Law Journal 379.
7. See Dressler (n. 5) 102: ‘Once the secondary party is found accountable, she is not punished for her own actions or for the extent
of her assistance. Rather, she is punished for the actions of the perpetrator because accessory law is derivative’.
8. See Paul H Robinson, ‘Imputed Criminal Liability’(1984) 93 Yale Law Journal 611; and see generally, Joshua Dressler,
‘Reforming Complicity Law: Trivial Assistance as a Lesser Offence’(2008) 5 Ohio State Journal of Criminal Law 427.
9. See generally, Alan Reed and Michael Bohlander, Participation in Crime: Domestic and Comparative Perspectives
(Ashgate Publishing Limited 2013).
10. See Dressler, ‘Reassessing the Theoretical Underpinnings of Accomplice Liability’(n. 5) 92.
11. Seegenerally, AP Simester, JR Spencer, F Stark; GR Sullivan and GJ Virgo, Simester and Sullivan’s Criminal Law: Theory and
Doctrine (Hart Publishing Limited 2019) 223–282; and Kimberly Kessler Ferzan and Lawrence A Alexander, Crime and
Culpability: A Theory of Criminal Law (Cambridge University Press 2009).
442 The Journal of Criminal Law 86(6)
demarcate and distinguish bet ween different types of accessorial behaviour, and inter cession in ultimate
harm(s): ‘punishment is rendered prop ortionally to culpability because this app roach is considered deon-
tologically 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 dis-
tillation of other hardy perennials within the criminal justice complicity garden, notably definitional
fault element requirement for secondary participation,
14
and the extended common purpose doc-
trine.
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 inter-
cessory contribution to the offence by D2, (or otherwise), was contested in pre-eminent scholarly con-
tributions, led by Dressler,
16
Kadish
17
and Robinson.
18
At the epicentre of this significant debate, and the dissonant views articulated, was whether causationserves
as an essential ‘tool’in the accurate measurement of an actor’sm oral desert, and proportionalpunishment 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 caus-
ality 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 commitsthe wrong.
22
The juxtaposition, however, as Moore has presented on a number
12. Dressler (n. 5) 92; and see Andrew P Simester, ‘The Mental Element in Complicity’(2006) 122 Law Quarterly Review 578, at
588–589: ‘[D]octrines of complicity are quite separate from those concerning the perpetration of crime …[I]ndeed, we can put
this more strongly. The proper question to ask is not whether S is culpable in respect of the occurrence of P’s crime, but whether
the occurrence of that time can legitimately be attributed to S (as well as P). At issue is not culpability but responsibility –in
particular, the principle of wrong-responsibility’.
13. See generally, GR Sullivan, ‘Doing Without Complicity’(2012) Journal of Commonwealth Criminal Law 199; Richard Taylor,
‘Procuring, Causation, Innocent Agency and the Law Commission’(2008) Criminal Law Review 32; JR Spencer, ‘Trying to
Help Another Person Commit a Crime’in P Smith (ed), Criminal Law: Essays in Honour of J.C. Smith (1987) 148; Kimberley
Kessler Ferzan and Lawrence A Alexander, Reflections on Crime and Culpability (Cambridge University Press 2018); and
Heidi M Hurd and Michael S Moore, ‘Untying the Gordian Knot of Mens Rea Requirements for Accomplices’(2016) 32
Social Philosophy and Policy 161.
14. See generally, GR Sullivan, ‘Intent, Purpose, and Complicity’(1988) Criminal Law Review; RA Duff, ‘Can I Help You:
Accessorial Liability and the Intention to Assist’(1990) 10 Legal Studies 165; Simester (n. 12); and Glanville Williams,
‘Complicity, Purpose and the Draft Code’(1990) Criminal Law Review 4; and see Law Commission No. 305, Participation
in Crime (2007).
15. See generally, Richard Buxton, ‘Being an Accessory to One’s Own Murder’(2012) Criminal Law Review 275; David Ormerod
and Karl Laird, ‘Jogee: Not the End of a Legal Saga but the Start of One?’(2016) Criminal Law Review 539; Andrew P
Simester, ‘Accessory Liability and Common Unlawful Purposes’(2017) 133 Law Quarterly Review 73; William Wilson
and David Ormerod, ‘Simply Harsh to Fairly Simple: Joint Enterprise Reform’(2015) Criminal Law Review 1; Matthew
Dyson, ‘Principals Without Distinction’(2018) Criminal Law Review 296; and B Crewe, A Liebling, N Padfield and G
Virgo, ‘Joint Enterprise: The Implications of an Unfair and Unclear Law’(2015) Criminal Law Review 252.
16. Dressler, ‘Reassessing the Theoretical Underpinnings of Accomplice Liability’(n. 5).
17. Stanford H Kadish, ‘Complicity, Cause and Blame: A Study in the Interpretation of Doctrine’(1985) 73 California Law Review 323.
18. Robinson, ‘Imputed Criminal Liability’(n. 8).
19. See Kadish (n. 17) at 391: ‘The problem raised by this use of causation follows from the characteristic ways in which human
actions are conceived as taking place. Actions are seen not as caused happenings, but as the product of the actor’s self-
determined choices, so that it is the actor who is the cause of what he does, not one who set the stage for his action’.
20. Smith (n. 1) 55–99; and see generally, KJM Smith, ‘Withdrawal in Complicity: A Restatement of Principles’(2001) Criminal
Law Review 769.
21. Gardner (n. 3) 120–129.
22. Ibid.
Reed 443
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