The Contribution of Complicity
| Author | Matthew Dyson |
| DOI | http://doi.org/10.1177/00220183221133439 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Articles |
The Contribution of Complicity
Matthew Dyson
*
University of Oxford, UK
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 dif-
ferently in assistance and encouragement compared to procuring: (a) an accessory’sassist-
ance or encouragement must make a significant contribution to the principal’scrime,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 meaning-
fully involved in the principal’scrime
Keywords
Complicity, causation, significant contribution, aid, abet, counsel, procure, assist, encourage,
overwhelming supervening event, withdrawal, fair labelling
In complicity, like many other areas of English law, legal actors routinely and mistakenly sacrifice preci-
sion 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
* Professor of Civil and Criminal Law, University of Oxford and Tutorial Fellow of Corpus Christi College, Oxford; Associate
Member of 6KBW College Hill; Visiting Professor and Senior Fellow, Notre Dame London Law Program. With particular
thanks to Alex Sarch, Nicholas Cooke QC, Miles Jackson, Julian Roberts, Beatrice Krebs and the anonymous reviewers.
Corresponding author:
Matthew Dyson, Civil and Criminal Law, Corpus Christi College, University of Oxford, Oxford OX1 2JD, UK.
Email: matthew.dyson@law.ox.ac.uk
Article
The Journal of Criminal Law
2022, Vol. 86(6) 389–419
© The Author(s) 2022
Article reuse guidelines:
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DOI: 10.1177/00220183221133439
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they do not detract from its general practical worth’,
1
highlighting the choice being made between intel-
lectual 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 sig-
nificant 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 advan-
tage 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 doctrinalclarity, 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 tensionsof 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 Jogee.
3
What is now the leading decision on complicity, from 2016,
has its proponents and some detractors. The decision removed the category of Parasitic Accessorial Liability.
Now, for each crime, an accessory is only liable if she assists, encourages or procures it, intending to assist,
encourage or procure it; where the crime requires fault, the accessory must intend the principal to have that
fault. There is certainly space to debate the value and effect of the decision.
4
However, those debates can too
easily treat complicity as a special box of its own, seeing or promoting as exceptional problems which
predate Jogee and/or apply beyond it. For example, conditional intention, and the substantial injustice test
for appealing out of time, predate Jogee. So too did the removal of separate doctrinal rules for participants
in a common purpose; what remains is the predominant prosecution narrative that the defendants were ‘all in
it together’. On the substantive merits of Jogee itself, there is no good reason why, as a general rule, it should
be easier to convict a person of a second crime merely because a first crime has been committed. Even if it
were, there is certainly no good reason why such an extreme form of liability as parasitic accessorial liability
should be used to do so. Under parasitic accessorial liabili ty, even the absence of contribution to the princi-
pal’s commission of the second crime, and the accomplice’s mere foresight of the possibility that the prin-
cipal would commit it, make the accomplice liable in full for it.
5
In addition, an accomplice should have to
intend to contribute to each crime of the principal. And, also as now, the accomplice should also know
enough of the principal’s conduct and plans, to know of the criminality on the normal basis that the law
is deemed to be known. We have already felt the consequences of failing to articulate and test for doctrinal
components in complicity and instead relying on lay-led applications of vague doctrine. This is highly prob-
lematic. It makes inconsistent results more likely. It makes the law l ess coherent and less predictable. It
reduces the ability of the subjects of the criminal law to have fair warning of what conduct is prohibited
and live lives avoiding the criminal law. Courts relying on vague doctrine is not uncommon, and many
legal systems criminalise complicity without having a robust and precise explanation for it driving precise
legal rules. However, English law seems to have adopted, or fallen into, a far more opaque and conviction-
maximising position. That has permeated criminal legal culture, so that any steps away from the permissive
and often punitive vagueness are criticised (and some of the reactions to Jogee should be seen in that light
6
).
2. See 1.3.2 and 1.3.4 below, with, for example, KJM Smith’s significant work in 1986 and 1991.
4. For the present author’s views, see Matthew Dyson, ‘Principals without distinction’[2018] Crim LR 296.
5. Chan Wing-Siu [1985] AC 168.
6. The immediate response in Archbold was particularly revealing of the approach of its editor(s), for example, Archbold: Criminal
Pleading, Evidence and Practice 2017 (Sweet & Maxwell, London), [19–31] on waiting to see whether the courts in England and
Wales would decide to follow an Australian decision not applying Jogee.
390 The Journal of Criminal Law 86(6)
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