Ch. 15 - Part II - Accessories and Theory

Question 1

General Theories of Accessorial Liability - overview

Answer 1

> Involvement & encouragement of others in committing a crime can affect the crime’s nature in a number of ways:
1. V may find it more terrifying and so more serious (Ashworth & Horder).
2. Offenders may feel it harder to withdraw from criminal enterprise, however, Dressler argues that there is no statistical support for the view that offenders in groups commit more serious offences than individuals acting alone.
3. Ohana - where a group of offenders commits crimes together there’s greater likelihood of bystanders being harmed.
4. Warr - Suggests that ‘peer influence is the principal proximate cause of most criminal conduct, the last link in what is undoubtedly a longer causal chain.’
Law has failed to clearly articulate a single theory and instead there are 2 parallel theories on accessorial liability:
1. An inchoate model based on Part 2 of the Serious Crime Act 2007.
2. The derivative theory, based on the general law on accessories.

Question 2

General Theories of Accessorial Liability - list

Answer 2

> 3 theoretical models which may explain why one person should be criminally responsible for helping or encouraging another to commit a crime:

1. Derivative theory of accessorial liability.
2. Causation & accomplice liability.
3. Inchoate model.

Question 3

Derivative theory of accessorial liability - Explanation

Answer 3

> Under the derivative theory of liability the accomplice’s liability derives from the offence committed by the principal.
Accomplices are liable because they have associated themselves with the offence which the principal committed.
Doesn’t argue that accomplices cause principals to commit offences but rather that in moral terms accomplices have placed themselves alongside the principals and identified themselves with the principal’s offences. (P. Robinson).
Joshua Dressler suggest that accomplices forfeit their right to be regarded as responsible only for their own actions by choosing to assist another in committing a criminal offence.
William Wilson: “If liability here is derivative it derives not so much from any community of purpose between P and A as from the fact that A, being in a position to thwart P’s criminal endeavour, failed culpably to do so.
Controversial version of theory is that liability arises from failure to prevent principal acting, e.g. liability for omission.

Question 4

Derivative theory of accessorial liability - Criticisms

Answer 4

> Vague.
Kadish: fundamental principle of criminal law is that individuals are autonomous agents who are responsible for their own actions but not the actions of others.
The stronger the link between the accomplice’s and principal’s act, the more force this theory has.

Question 5

Derivative theory of accessorial liability - does the theory explain the current law? Reasons for yes

Answer 5

> Yes:

1. Accessory is convicted of same offence as principal. Ashworth objects to the German system where accomplice gets max sentence of three-quarters of principal as he says sometimes accomplice is more blameworthy.
2. If principal doesn’t commit AR of the offence, the accomplice isn’t liable for complicity.
3. MR for an accessory requires accomplice (at least) to intend to assist the principal in their offence. Such an accomplice can be said to have adopted the principal’s act as their own.

Question 6

Derivative theory of accessorial liability - does the theory explain the current law? Reasons for no

Answer 6

> No:

1. HoL in Joggee explicitly rejected the notion that the acts of the principal must be desired by the accomplice.
2. Fact that even if principal is acquitted it still possible to convict an accomplice weakens Kadish’s argument that the accomplice’s liability flows from the principal’s guilt.
3. Dicta in Howe: possible for an accomplice to be convicted of a more serious offence than that committed by the principal. However, Kadish explains such cases on the basis that the principal is a ‘semi-innocent agency.’
4. Fact that the accomplice doesn’t have to foresee the exact act of the principal may be said to undermine the derivative theory.

Question 7

Derivative theory of accessorial liability - William Wilson’s concerns about the theory

Answer 7

> W. Wilson, ‘Central Issues in Criminal Theory’ (2002):

• Under the German system, punishment for secondary parties is formally discounted to reflect their participatory rather than executory statues.
• There is no such formal discounting in common law systems. This reflects the common law’s more pragmatic approach which permits much theoretical rubbish to be wept under the carpet.
• Absence of rules capable of distinguishing between different levels and forms of participation, means that differentiating degrees and forms of involvement still goes on but becomes a matter of prosecutorial and judicial discretion tailored to questions of individual fault and participatory role. So it allows for the king of sentencing flexibility, which allows the non-perpetrating instigators of crimes to be punished accordingly.
• Theoretical issue is that this undermines the notion that the accessory’s liability derives from what the perpetrator, rather than what he himself has done.
• How can this be instantiated in consistent doctrine?
• An obvious solution is to abandon altogether the derivative basis to accessorial liability, already much disregarded, and render participation in crime an inchoate offence.
• An inchoate basis to liability attacks the fiction that there is a necessary moral congruence between those who perpetrate crime and those who help or encourage its commission or that the principal was somehow acting as the secondary party’s executive agent.
• However, requires complementary provisions for dealing with cases where the secondary party procures the commission of the AR of the offence by an otherwise innocent or semi-innocent principal.
• Also ignores the intuition that it is often appropriate to ascribe authorship of a crime to someone other than the perpetrator.
• Such people shouldn’t be labelled as mere facilitators, but as principals.
• E.g. Sir John Smith in context of murder: “those who are instrumental in bringing about a killing should not have their responsibility set apart from those who directly perpetrate…”
• Another possibility is to retain a form of derivative liability but tie liability as an accessory not to the principal’s mental attitude but to that of the secondary party.
• Somebody who acts for the purpose of effecting a criminal wrong arguably commits a different wrong from someone who acts for the purpose only of assisting or encouraging another to commit such wrong.
• So those who help or encourage because they want the substantive offence to take place could be treated as principal offenders.
• Those who help or encourage because they merely wish to be helpful to encourage the principal offender in the commission of the offence could be treated as facilitators.
• Problem with such approach though is that the distinction between these 2 states of mind will often be paper-thin and certainly sufficiently insubstantial to make for easy prosecutions.
• An altogether more satisfactory way of dealing with the problem of different degrees of causal influence might be to create a structure of offences reflecting such difference. It seems extraordinary that the common law, unlike say the German system, makes no formal distinction between a person who successfully incites another person to kill her husband and an ordinary retailer who knowingly supplies the murder weapon.
• Draw distinction between causal and non-causal participation in crime with former punishable upon an accessorial basis and the latter, involving lesser acts of assistance and encouragement upon an inchoate basis.

Question 8

Causation and Accomplice Liability - the theory

Answer 8

> Liability for accomplices should be based on a finding that the accomplice partly caused the harm to V.
Theory argues that an accomplice is, in effect, a joint principal.
Accomplices are not, therefore, being punished for the acts of the principal (as the derivative theory suggests), but rather are being punished for their own acts & their contribution towards the harm done to V.
Dressler suggests a substantial contribution should be required.
John Gardner supports causal theory and sees it based on the fundamental principle that you are responsible for your own acts & their consequences, but not the acts of other people.
So if the accomplice’s act doesn’t contribute to the eventual crime there should be no liability.

Question 9

Causation and Accomplice Liability - J. Gardner

Answer 9

> J. Gardner, ‘Complicity and Causality’ (2007):

• The distinction between principals and accomplices is embedded in the structure of rational agency.
• I am responsible for my actions, and you are responsible for yours.
• Yet my actions include my actions of contributing to your actions.
• The question which divides agent-relativists and agent-neutralists is merely how much of this kind of rational attention I should be giving to your reasons. Which contributions to your non-conformity make me complicit in it?
• The distinction between principals and accomplices is therefore often marked in morality.
• Strict consequentialists insist that it matters only what consequences my action has, not how those consequences come about.
• They cannot be right because if they were right, an elementary truth about responsibility would be falsified. The elementary truth is that I am responsible for my actions, while you are responsible for yours. Each of us has a different relationship to our own actions from the relationship that we have to the actions of others. The relationship we have to our own actions is direct: we answer for them as such. The relationship were have to the actions of others is indirect: we answer for them only inasmuch as, by our own actions, we contribute to them. If strict consequentialists want to abandon the distinction between these two modes of responsibility for actions they need to abandon, not merely agent-relativism, but also the idea that we each have a special relationship to our own actions.

Question 10

Causation and Accomplice Liability - causation theorycriticism of the

Answer 10

> Critics says that there are important moral differences between the person who stabbed V and the person who supplied the knife.
However, Gardner suggests that although an accomplice and a principal may in some cases by their actions produce the same result, this does not mean they are morally equivalent.
Kreuzner: NB even if one not fully convinced by the causation theory one may want to distinguish accessories whose assistance or encouragement played a tangible role in the harm suffered by V and those whose acts had a minimal causal relevance to the offence committed.

Question 11

Causation and Accomplice Liability - does the current English and Welsh law reflect the theory

Answer 11

> One difficulty in the causation theory is that under the normal rules of causation an accomplice can’t be said to have caused the principal to commit the crime because of the doctrine of novus actus interveniens: a free, voluntary act of a 3rd party breaks the chain of causation.
2 responses:
1. Might say that causation theory of complicity is not using causation in the sense of legal causation, but rather factual causation.
-Kadish: although the doctrine of actus novus interveniens explains why accomplice isn’t the legal cause, the they are a factual causes generates good reason for holding them liable.
-W. Wilson & J.C. Smith: what is required is a moral causal responsibility, not strict legal causal responsibility.
2. Might be said that the doctrine of actus novus interveniens is honoured as much in the breach as in the observance and needn’t be regarded as part of the law on causation.
-See general arguments against doctrine.
-Innocent agent: accept D has caused 3rd party in a certain way.

Question 12

Inchoate Model - general

Answer 12

> Inchoate model proposes that accomplice liability should be seen as an inchoate offence. (Kutz).
-I.e. the accomplice’s liability doesn’t turn on the guilt of the principal, but rather on D’s act in offering assistance to the principal, believing that the act will be one of assistance or encouragement.
-Reflected in Part 2 of Serious Crime Act as no proof is required that the principal went on to commit any kind of act.
-Crucially, the model doesn’t require that there is a principal who goes on to commit the crime or that the accomplice’s acts were actually assisting or encouraging the principal.
-Law Commission Consultation Paper No. 131 1993: being an accessory involves offering what D believes will be assistance or encouragement to commit a crime; what the principal subsequently did would be irrelevant.
Law Commission laid out arguments for and against theory in a report.

Question 13

Inchoate Model - Law Commission - in favour of inchoate theory

Answer 13

> Law Commission Report No. 300, ‘Inchoate Liabiliy for Assisting and Encouraging Crime.’ 2006:
For:
1. Combating Serious Crime:
-Police would be able to work more effectively, particularly in context of serious organised crime as lack of general inchoate liability hinders development of intelligence-led policing which is now an important weapon in state’s response to organised crime.
2. The Rationale Underlying Inchoate Liability:
-Each offence, by proscribing conduct that manifests an intention to bring about harm and enhances the prospect of harm occurring, enables the criminal law to intervene at a stage before the harm materialises.
-Underlying utilitarian rationale is that benefits of avoiding harm outweigh any disadvantages arising from what some might perceive as the criminal’s premature intervention.
3. Eliminating the Element of Chance:
-Commission Consultation Paper said “under the present law it is a matter of chance, so far as D is concerned, whether he becomes guilty, that chance depending on whether P commits the principal crime.”
4. Sufficiently Capable Conduct:
-Still culpable enough conduct to warrant criminal liability.
-Professor Spencer 1987: “If my behaviour was bad enough to punish where you actually made use of the help I gave you, it was surely bad enough to punish where I fully expected you to use it but you got caught before you had the chance.”
5. Deterrence.
6. A More Coherent Approach:
-Lack of a general inchoate offence of assisting crime has resulted in a piecemeal & haphazard approach.
7. Labelling & Punishment:
-Current approach may inadequately punish D for their conduct but even where a statutory provision does criminalise a preliminary act of assistance, it may fail to adequately label & punish D for what they have sought to encourage/assist.
8. Restoring the Proper Boundaries of Offences:
-Intro of general inchoate liability for assisting crime would facilitate the process of restoring the proper boundaries of other inchoate offences, e.g. statutory conspiracy.

Question 14

Inchoate Model - Law Commission - against inchoate theory

Answer 14

> Law Commission Report No. 300, ‘Inchoate Liabiliy for Assisting and Encouraging Crime.’ 2006:
Against:
1. Liability for Otherwise Lawful Conduct:
-Professor K J M Smith suggests marginal activities that would otherwise constitute lawful conduct, would qualify as criminal assistance.
2. Premature Intervention:
-It would result in premature intervention & might result in D being liable for assisting P who had no intention of committing an offence.
3. Disparity Between the Liability of P and D:
-D will incur immediate liability for assisting P even though P, who may have requested the assistance, incurs no liability until they make an attempt to commit the principal offence.
4. Vagueness and Uncertainty:
-An inchoate offence of assisting with no requirement of knowledge or belief as to the future commission of any specific offence, but related to crime in general, would make the requirements for liability unduly vague & uncertain.
-Also test of knowledge/belief in respect of a particular offence would five rise to problems in cases where assistance is provided and no principal offence is subsequently committed as difficult to prove that P has a particular offence in mind.

Question 15

Does the inchoate theory explain the law on accomplice in England & Wales?

Answer 15

> No.
If P doesn’t commit offence then A can’t be held liable.
Is for incitement but no comparative offence in relation to assistance.

Question 16

Theories of Accessorial Mens Rea - overview

Answer 16

> Weisburg: law is inevitably complex due to the no. of different matters to which the MR must relate:
1. Accomplice’s act.
2. Act of the principal.
3. State of mind of principal.
4. Circumstances in which principal acts.
Plus must decide whether it is necessary to prove intention, recklessness, or negligence.

Question 17

Theories of Accessorial Mens Rea - Purpose

Answer 17

> Could argue that prosecution should be required to show it was A’s intention that P commit the crime with A’s assistance/encouragement.
Appropriate to have a higher standard for MR due to difficulty in locating harm to V directly caused by A?
Supporters inc. inchoate liability supporters & excessive criminalisation supporters.

Question 18

Theories of Accessorial Mens Rea - Recklessness

Answer 18

> Could argue that must show A foresaw P would go on to commit the crime with A’s acts of assistance or encouragement.
Supporters may think A needs to have lower MR than P.
Derivative liability.
Joining together with P, foreseeing they will commit a crime, A adopts that offence as their own.
Debate over what should be foreseen as it’s harder where what was foreseen & what occurs differ slightly.

Question 19

Theories of Accessorial Mens Rea - Accomplice’s MR should be same as that required for the principal - In favour

Answer 19

> Grace Mueller, ‘The MR of Accomplice Liability’ 1988:
Justification for full MR approach (why A should be required to possess MR of the offence):
1. Matter of social policy, people shouldn’t have to worry & check they haven’t done anything which might later subject them to criminal liability.
2. Concept of culpability provides basis for our criminal justice system, the act requirement is secondary to the mental element. In many cases, an act is required primarily as proof that mental culpability exists.
3. Societal goals of deterrence & retribution don’t undermine the argument for a full MR approach. Probably only smallest incremental increase in deterrence if accomplice is held liable on some lesser MR.
4. Tison v Arizona 1987: “Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious the offense is, and, therefore, the more severely it ought to be punished.

Question 20

Theories of Accessorial Mens Rea - Accomplice’s MR should be same as that required for the principal - Against

Answer 20

> A. Simester, ‘The Mental Element in Complicity’ (2006):
In his view an accessory should only be liable if they have knowledge that the offence will be committed.
At least where recklessness is sufficient to convict P of the relevant substantive offence, why should full knowledge be necessary on A’s part? If knowledge is required, A will escape liability in many cases where she willingly assists P to commit a crime, and has same MR (i.e. recklessness) toward that crime as P.
Objections:
1. Doctrines of complicity are quite separate from those concerning the perpetration of a crime.
-AR requirement is independent of the substantive offence so no reason why MR requirement for participation should be determined by the principal offence.
2. Proper question to ask is not whether A is culpable in respect of the occurrence of P’s crime, but whether the occurrence of that crime can legitimately be attribute to A (as well as P). At issue isn’t culpability but responsibility.
-In a liberal society, the right to be treated as individuals is fundamental.
-Criminal liability is personal and as such, the citizen has a right not to be convicted & labelled as a criminal unless she is personally responsible, and blameworthy, in respect of the crime of which she is convicted.
-Simply put: if my action is lawful and not wrong, someone else’s crime does not become my lookout - and should not be my moral or legal responsibility - simply because I foresee its possibility.
-Something more is required. That ‘something more’ is supplied by my MR: by a requirement that I either intend, or at least know, that P means to commit a crime. It is only then that my helpful, but otherwise lawful, conduct becomes a wrong.

Question 21

Theories of Accessorial Mens Rea - Accomplice’s MR should be same as that required for the principal - Graham Virgo

Answer 21

> G. Virgo, ‘Joint Enterprise Liability is Dead: Long Live Accessorial Liability’ [2012]:

• If the imposition of accessorial liability cannot be justified on the facts by establishing causation or an actual or presumed connection with the crime committed by D1, then a 3rd way should be that D2 should be liable for the commission of the substantive offence by DQ where D2 can be considered to be associated with the commission of that offence in some way.
• Principle of association.
• Whereas other explanations of accessorial liability, causation & connection, depend on establishing some effect on or link to the commission of the crime committed by D1, this need not be proved where the justification for the imposition of liability is association.
• The focus is instead on the conduct of D2 in its own right & whether this can be considered to establish that D2 is associated with the crime committed by D1, without resorting to any artificial presumption of effect on D1.
• Principle of association might be a perfectly adequate explanation of joint enterprise liability, but it’s still necessary to consider whether this form of liability can be considered distinct from general accessorial liability.
• Principle of association provides the link to enable so-called ‘joint enterprise liability’ to be treated as falling within general accessorial liability. If D2 can be considered to be associated with the crime committed by D1, then he will be liable for the offence’s commission as an accessory if he foresaw the commission of the offence as a possibility.
• Principle of association can also be logically extended to impose accessorial liability where D2 assists or encourages D1 to commit crime A, foreseeing that crime B might be committed.
• Association is sufficient to justify conviction.

Question 22

The Theory of Joint Enterprise - meaning

Answer 22

> Is joint enterprise simply one way of being an accessory or should cases of joint enterprise be regarded as sufficiently different to justify different legal treatment? (Krebs).
Simester argues against the view expressed in Jogee that joint enterprise is simply one way of assisting or encouraging.

Question 23

The Theory of Joint Enterprise - A. Simester

Answer 23

> A. Simester, ‘Accessory Liability and Common Unlawful Purposes’ 2017:

• A needs to intend their own act of involvement, and have MR regarding P’s acts as well as regarding P’s MR. More generally, it is a mistake to think that A’s culpability must equal P’s. What matters is whether A is sufficiently culpable to be held guilty of P’s crime.
• There is a broader worry that extended joint criminal enterprise law may be Draconian in practice.
• The decision in Jogee is clearly informed by a sense that the application of extended joint criminal enterprise liability rules has in recent years produced significant injustice.
• Over-zealous findings of shared criminal purposes - with foresight - against those on those on the periphery of wrongdoing.
• Common purpose liability should be a form of guilt by enterprise, not by association; a point emphasised forcefully by the High Court in Miller v The Queen.
• If extended joint criminal enterprise doctrines have indeed been abused, or indeed are prone to abuse, that certainly supplies a reason to get rid of them.
• However, could tweak instead, e.g.:
  1. Tighten definition of joint enterprises, by perhaps requiring A foresaw P’s further crime as probable.
  2. Or limit convictions to where S was certain that the collateral offence would be committed by A in the event of a particular, foreseen circumstances.
• Such revisions would depart from existing case law, but not to the radical extent Jogee does.
• Having 2 distinct channels of complicity liability affords the law greater flexibility and moral sensitivity when determining whether A is a participant in P’s crime.
• Direct aiding/abetting doctrines are simply too blunt by themselves to capture, without substantial over-or-under-inclusion, all forms of association with P’s crime that warrant a finding of guilt alongside P.
• The common unlawful purpose doctrine doctrine responds to contingencies of scope, which is what really matters here, rather than contingencies of A’s intention. It allows the common law to accommodate fast-moving developments, provided they occur in the pursuance and within the foreseen scope of the criminal enterprise, and in the presence of A.
• Lord Steyn also noted, the doctrine allows the courts to overcome at least some of the traditional evidential difficulties associated with group wrongdoing.
• The Court in Jogee overestimates the capacity of aiding/abetting law to accommodate such difficulties. Joint criminal enterprises are a distinct moral phenomenon. Indeed, only by recognising that can we adequately protect the law of aiding & abetting.

Question 24

Doctrine of common purpose

Answer 24

> In criminal law, the doctrine of common purpose establishes that where two or more people agree to a commit a crime, each will be responsible for the acts of the others that fall within their common purpose or design.

Question 25

Doctrine of joint enterprise

Answer 25

> Joint enterprise is a doctrine of criminal law which permits two or more defendants to be
convicted of the same criminal offence in relation to the same incident, even where they had
different types or levels of involvement in the incident.
In recent years, however, there has been growing controversy over the doctrine of joint
enterprise.
These criticisms have focused on what is said to be the potential for individuals to be convicted and sentenced, under the doctrine of joint enterprise, for the most serious offences on the basis of highly peripheral involvement in the criminal acts. It is argued that in many such cases the level of participation in
the offence was so slight, or the evidential threshold of conviction so low, that the conviction amounts to a substantial injustice.
A related criticism is that young men from black, Asian and minority ethnic (BAME) groups are disproportionately affected or are explicitly targeted by joint enterprise convictions in cases of presumed gang-related violence.
It has been argued that joint enterprise operates as a kind of criminal justice ‘drag-net’, sweeping up large numbers of young people into criminal prosecutions on the basis of their social networks and associations rather than any active involvement in criminality.

Question 26

Joint Enterprise: The Law

Answer 26

> Guidance issued by the Crown Prosecution Service (CPS) in 2012 described three main types of
joint enterprise:
1. Where two or more people join in committing a single crime, in circumstances where they are, in effect, all joint principals.
2. Where D assists or encourages P to commit a single crime.
3. Where P and D participate together in one crime (crime A) and in the course of it P commits a second crime (crime B) which D had foreseen he might commit.

> The 2nd and 3rd categories concern the assignment of secondary or ‘accessorial’ liability for a criminal offence.
Cases involving an accessory accused of assisting or encouraging a principal defendant (category 2) are often described in terms of ‘basic’ or ‘general’ accessorial liability.
Where the principal’s commission of a second offence arose out of an original joint offence (category 3), this is commonly denoted ‘parasitic accessorial liability’ (henceforth PAL).
The concept of PAL developed over the course of the past three decades through case law.
At the heart of PAL is the principle that defendants’ liability could rest on their foresight of a possible collateral offence committed by their co-defendant.
This principle has been roundly criticised for permitting defendants to be convicted of offences in relation to which they had no intent and no intent to assist or encourage, and in the commission of which they were not involved.

> In October 2015, a joint session of the UK Supreme Court and Privy Council heard two appeals against joint enterprise convictions for murder: R v Jogee and Ruddock v The Queen (Jamaica).1 Both appeals were allowed, in a decision that effectively abolished PAL. In the judgment handed down on 18 February 2016, it was stated that the common law on joint enterprise had previously taken a ‘wrong turn’: the courts should not have treated defendants’ foresight of an offence as equivalent to intent to assist that offence, and this had had the effect of over-extending the scope of secondary liability. The Jogee and Ruddock judgment was also critical of the way in which ‘generalised and questionable policy arguments’ had contributed to
the development of the law.

Question 27

Actus Reus Issues

Answer 27

> Striking what a wide range of behaviour is covered by the AR of being an accessory.
G. Williams supports idea of reducing accessoryship to influencing & helping. Help is much easier to understand than aid.
Range of activities involved has led several commentators to suggest it isn’t possible to provide one set of legal regulations & approaches to deal with the whole range of forms of accessoryship.
Currently, actions which have only the most limited connection to the ultimate offence can generate accomplice liability.
Such a wide range means that everyday common conduct which we would not expect to be an offence could constitute an offence (Kadish) and also throwing the net of accomplice liability too wide could effectively constitute liability for omissions and possibly interfere with basic human rights.

Question 28

Reform of the Law - overview

Answer 28

> Law Commission has made 2 reports on reform of the law of accessories:
1. First one makes the radical suggestion that there will be inchoate offences of assisting and encouraging crimes. These will be committed whether or not P commits the crime. A version of their model made its way into the offences in Part 1 of the Serious Crime Act 2007.
2. Second report advocates retention, with slight modification, of the current law on accessories.
So, in effect the Law Commission is advocating a use of both the derivative & inchoate models of liability.
A more radical reform would be to do away with the idea of accessorial liability altogether.
Victoria Wang has argued it is wrong to treat accessories & principals as equivalent.

Question 29

Reform of the Law - Victoria Wang

Answer 29

> Victoria Wang, ‘A Normative Case for Abolishing the Doctrine of Extended Joint Enterprise’ 2018:
-Assisting/encouraging is less harmful and less dangerous than perpetration in that the harmfulness of assistance/encouragement is contingent on the perpetrator’s making an independent & autonomous choice to commit the target crime.
-Assisters/encouragers stand one step further from the prohibited harm.
-Participation is a remote harm, as compared to perpetration, which the criminal law seeks to prevent.
-Assisting/encouraging is less dangerous than perpetration because accessories don’t have control over the occurrence of the prohibited harm and they do not have the fortitude or resolve to commit the crime by their own hands.
-No control over the conduct which causes the eventual harm.
-They may never commit the crime if they are going to use their own hands to do the dirty work.
-It’s easier to imagine killing someone than actually doing it.
-There is a difference in the mental psychology and hence dangerousness of a remote party to a direct act of killing.
-Treating an accessory the same as a perpetrator is a form of constructive liability because they neither have AR nor MR of the target crime.
She concludes that the doctrine of accessorial liability should be abolished and replaced with a specific offence of doing an act that risks another committing an offence.

Question 30

Concluding Thoughts

Answer 30

It is not only questions of proof that create difficulties: there is the more profound question of the extent to which one person should be responsible for the actions of another.