Reform of Complicity Precepts: New Pathways and Comparative Solutions
| DOI | http://doi.org/10.1177/00220183221142634 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Editorial |
Reform of Complicity Precepts:
New Pathways and Comparative
Solutions
Alan Reed
Northumbria University, UK
Within the contours of criminalisation, and the types of criminal conduct that should act as a juridical
touchstone for liability, it is problematical in doctrinal and theoretical terms to define and ascribe the
true parameters of secondary participation. Complicity precepts, in general, provide a lodestar for
when and why individuals other than the perpetrator of a crime should be inculpated, together and in asso-
ciation with the actual and direct progenitor of the harm(s). In this Special Edition of The Journal of
Criminal Law contributors address how complicity principles ought to be reformed to properly context-
ualise the actus reus ingredient elements of complicity, and the debate extends to when liability should be
negated by an overwhelming supervening event ascribed to D1, and to the nature of effective withdrawal.
In the first article of the Special Edition Professor Matthew Dyson suggests that Comp licity provides a
perfect place from which to take steps towards doctrinally clear and coherent criminal law. In particular,
by acknowledging in the complex mass of cases a requirement prevails that the accomplice contribute to
the principal’s crime. That takes effect differently in assistance and encouragement compared to procur-
ing: (1) an accessory’s assistance or encouragement must make a significant contribution to the princi-
pal’s crime, but does not need to be a but-for cause; and (2) 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.
In the second article of the Special Edition, Dr Beatrice Krebs contends that Jogee established that, if
the victim was attacked in a manner different to that which the accessory envisioned, the accessory will
not be liable for a resulting death, provided the fatal act amounted to ‘some overwhelming supervening
act [OSA]…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’.Jogee further suggests that OSA has replaced the fun-
damental difference rule (FDR) which used to keep the foresight test in parasitic accessory liability (PAL)
cases in check, by absolving accessories of liability for murder or manslaughter, where the principal had
caused the victim’s death with a different and more lethal weapon or in a different and more dangerous
Corresponding author:
Alan Reed, Professor of Criminal and Private International Law, Northumbria Law School, Northumbria University, Newcastle
upon Tyne, NE1 8ST, UK.
E-mail: alan.reed@northumbria.ac.uk
Editorial
The Journal of Criminal Law
2022, Vol. 86(6) 387–388
© The Author(s) 2022
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DOI: 10.1177/00220183221142634
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