Reinterpreting Criminal Complicity and Inchoate Participation Offences

Dennis Baker

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317198871
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

In Reinterpreting Criminal Complicity and Inchoate Participation Offences, Dennis J. Baker argues that the mental element in complicity is one of intention, that recklessness alone is not sufficient. This is demonstrated by showing that the ancient and modern authorities on complicity required intention. The book argues the 'causal participation' element in complicity means that the conduct element can only be established when there is intentional encouragement on the part of the accessory. As the Accessories and Abettors Act 1861, like most of the statutory provisions found in the United States, deems that both perpetrator and accessory are perpetrators for the purpose of punishment and crime labelling, limiting the mental element in complicity to intentional participation is, the author argues, the only way to reconcile these provisions with the requirements of proportionate punishment and fair labelling. As some forms of reckless encouragement and assistance will not be criminalised if the mental element in complicity is intention only, the author suggests that the solution is to amend section 45 of the Serious Crime Act 2007 to criminalise reckless participation. In addition, the author argues that standard complicity and joint enterprise complicity have the same mental and conduct elements and thus joint enterprise complicity is not a distinct form of complicity.

1 Introduction

Abstract

In this monograph, I shall argue that no doctrinal nor conceptual distinction can be drawn between what is orthodoxly known as standard complicity and what is orthodoxly known as joint enterprise/common purpose complicity. I shall argue that both have the same mental element and that the conduct element for both is either assistance or encouragement pursuant to section 8 of the Accessories and Abettors Act 1861 (hereinafter the Act of 1861). Because I argue that the conduct element of all complicity has to come within section 8 of the Act of 1861, I shall not dedicate a separate chapter to the topic of standard complicity. I shall explain the way in which contemporary scholars and courts have divided the two forms of complicity, but overall my examination of the conceptual problems with the conduct and mental elements in complicity does not rest on demonstrating that joint enterprise/common purpose complicity is a distinct doctrine.

I shall argue that the mental element in complicity is one of intention. It is submitted that recklessness is not sufficient. This will be demonstrated by showing that the ancient and modern authorities on complicity required intention. Coupled with this, it shall be argued that complicity’s ‘conduct element’ element can only be made out in the common purpose complicity scenario when there is intentional encouragement on the part of the accessory. Since the Act of 1861, like most of the statutory provisions found in the United States, deems that both the perpetrator and accessory are perpetrators (principals) for the purpose of punishment and crime labelling, limiting the mental element in complicity to intentional participation is the only way to reconcile these sorts of provisions with the requirements of proportionate punishment and fair labelling. It is true that some forms of reckless encouragement and assistance will not be criminalised if the mental element in complicity is intention only, but the solution is to amend section 45 of the Serious Crime Act 2007 to criminalise reckless remote participation, because that provision allows for fair labelling and proportionate punishment.

I. The scope of this monograph

This monograph is divided into six chapters. The first chapter raises the core issues and provides some background on the theory and doctrine. The last chapter brings together the different theses considered in the earlier chapters and summarises them into a conclusive whole, reconciling them with the overall theme of fair labelling and proportionate punishment. In Chapter 2, the law of common purpose complicity is examined to support the claim that the mental element in complicity requires nothing less than intention. It will be argued that the English authorities dating back to the mid-sixteenth century support the theory that common purpose complicity requires intentional factual encouragement. It will be argued that common purpose liability as a form of complicity liability rests on the participants’ mutual intentions – that is, their common purpose. The jury has to be able to infer that the common purpose extended to the particular collateral crime. It can do this by inferring that the accessory conditionally or directly intended the collateral crime to be perpetrated for the purpose of making the underlying joint enterprise succeed.

Furthermore, it will be argued that the foresight of possibility maxim proposed by the High Court of Australia in Johns v The Queen¹ was not proposed as a substantive fault doctrine for complicity liability, but was used as an evidential maxim. I shall argue that the Lords in R v Powell² mistook the evidential maxim that is used for inferring conditional intention to be a substantive fault element for common purpose complicity. I argue that the maxim can be used to allow the jury to infer that the accessory conditionally intended to encourage the perpetrator to perpetrate the anticipated collateral crime, if the facts show that the accessory knew that the perpetrator intended to perpetrate the collateral crime should certain conditions arise, such as a security guard confronting them during the course of a robbery.

In Chapter 3, the recent decision of the Supreme Court of the United Kingdom in R v Gnango³ is examined. It is argued that the joint perpetrator theory adopted by some of the judges in that case was not applicable on the facts, because the facts clearly showed that ‘Bandana Man’ (BM) was the perpetrator and Gnango the encourager. It is argued that the jury should have been given a direction with respect to Gnango obliquely intending to encourage BM to kill himself. Coupled with this, the jury should have been given a direction with respect to mutual combats, because some perceived combats are genuine cases of self-defence. I also argue that the provocative act murder doctrine was not applicable in that case. It was not a case of provocative act murder, because BM was merely encouraged; BM was not forced to engage in the gunfight, nor was he an intervening instrument⁴ (a justified agent or an excused agent who was acting under duress of circumstances). His actions were voluntary and unnecessary; therefore, the provocative act murder doctrine was inapplicable.

The final point that I raise in Chapter 3 concerns the exclusion of the exempt party/victim rule. That rule holds that a victim cannot be liable for complicity for encouraging another to perpetrate a crime against her. Hence, if X encourages Y to chop off X’s finger, X should not be liable under section 8 of the Accessories and Abettors Act 1861 as a perpetrator for the assault against herself. Only Y should be liable. I also argue that the victim rule is not applicable in cases where the real victim is a third party. In R. v. Gnango, Gnango was not the victim, so the victim rule did not cover him. If Gnango had been a joint victim with Magda Pniewska (the innocent passer-by who was killed in the crossfire from Gnango and BM, who were trying to kill each other as parties to a mutual gunfight in a London car park), Gnango being wounded and Pniewska being killed, the victim rule still would have been excluded as far as the third party was concerned. If Gnango had been the actual victim and the only victim, the victim rule, as a matter of policy, would not have been excluded.

In Chapter 4, I examine the Serious Crime Act 2007. The independent facilitation offences found in sections 44 and 45 of the Serious Crime Act 2007 have improved the law in some respects, because those offences distinguish the perpetrator of the anticipated target crime from the facilitator. The facilitator is not treated as a perpetrator of the anticipated target crime, but is convicted of an independent participation offence. However, if we accept the thesis presented in this monograph that section 8 of the Act of 1861 only criminalises intentional assistance or encouragement, there will be a lacuna in the law. My thesis supports criminalising reckless assistance/encouragement, but I shall argue that this can be done fairly only by enacting an independent offence.

If D sells a gun and is suspicious that P might misuse it, D should not be liable for murder under section 8 of the Act of 1861, but instead should be liable for an independent participation offence similar to the one found in section 45 of the Serious Crime Act 2007, since that type of offence criminalises D at a lower level and allows for fair labelling and proportionate punishment. Nonetheless, as we shall see in Chapter 4, section 45 criminalises only oblique intentional assistance/encouragement and thus is too narrow to cover reckless assistance/encouragement more generally. Consequently, section 45 should be amended so that its mental element is recklessness, not oblique intention.

In Chapter 5, I examine the defence of withdrawal and its application to the law of complicity. I also examine the defence of abandonment and its application to the law of attempted participation under the Serious Crime Act 2007. It seems reasonable to allow for a defence where the encourager or assister has taken steps to render her encouragement and assistance wholly ineffective. If the secondary party retrieves a gun that she has attempted to supply to P before P gets a chance to sight the gun, then she should be able to raise the defence of abandonment. Such a case is not a case of failed attempt, but a case where the assister has had a complete change of heart and has taken reasonable steps to try to do the right thing. The defence of abandonment would provide such defendants with an incentive for neutralising their attempted assistance and encouragement before it has a chance to facilitate the perpetrator’s crime. As the facilitator often will be in the best position to neutralise her attempted participation, it makes sense to provide her with an incentive to do so.

II. Overview

Why a book on the criminal law of complicity.⁵ One would have thought after almost a thousand years the English law of complicity would be well settled,⁶ but the fact is that the English law of criminal complicity is in a shambles. It cannot be reconciled with a normative reading of the basic human rights that emerged in the later part of the twentieth century.⁷ Increasingly, twenty-first-century courts are taking the human rights developed in the twentieth century seriously, but we have a long way to go.⁸ Coupled with this, the law of criminal complicity, as interpreted by the courts of the last few decades, cannot be reconciled with the modern and ancient authorities. Parliament created further complexity when it enacted the Serious Crime Act 2007. The Serious Crime Act 2007 not only introduced new personal liability offences to criminalise consummated encouragement and assistance, but also criminalised attempted participation.⁹ The complexity and incongruity of some of the provisions found in the Serious Crime Act 2007 is such that I have dedicated a lengthy chapter to the interpretive and conceptual problems it raises.

A part of the reason that the law of complicity remains in a shambolic state is attributable to the fact that constructive liability has survived in our modern criminal law. Recent judicial interpretations¹⁰ of the scope of the com...

Table of contents

• Cover Page
• Reinterpreting Criminal Complicity and Inchoate Participation Offences
• Title
• Copyright
• Contents
• Foreword
• Table of Cases
• Preface
• 1 Introduction
• 2 The mental element in complicity requires intention
• 3 Mutual encouragement and parties exempt from complicity liability
• 4 The problem of making participation inchoate
• 5 Defences, labelling and sentencing
• 6 Conclusion
• Index