Abstract
The 2016, the UK Supreme Court case of Jogee confirmed a long-standing convention in English law. In cases where D is assisting or encouraging P to commit an offence, D will only be liable as an accessory for that offence if she intentionally assists or encourages P and if she knows the essential features of the offence. In this paper, I discuss and develop some of the arguments from Sanford Kadish’s 1996 article “Reckless Complicity.” I argue that a special sub-category of complicity, namely ‘enabling’, can be done recklessly, and is sufficiently blameworthy to ground criminal liability.
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Notes
Kadish was writing in the context of the Model Penal Code, which has a higher cognitive standard than mere knowledge of the essential features of P’s offence. Section 2.06 (3) states: “A person is an accomplice of another person in the commission of an offense if (a) with the purpose of promoting or facilitating the commission of the offense, he […] (ii) aids or agrees or attempts to aid such other person in planning or committing it. […]” (my emphasis). For my purposes, I will be focusing on the lower English cognitive standard.
The most wide-ranging theoretical and practical discussion of the different types of complicity is Lepora and Goodin (2013).
Here is a borderline case: P is determined to commit a bank robbery, and asks to borrow D’s gun. D knows that P will commit the robbery either with her (D’s) real gun or with his own (P’s) plastic replica gun. So, we could say (1) that if D lends P her gun, then she is merely facilitating a crime that is going to happen anyway. Alternatively, we could say (2) that D has control over whether P will commit an armed robbery or not; if D withholds her gun, then P will only commit an unarmed robbery, a different crime.
There is a good deal of metaphysical nuance in the notion of “would have done it anyway,” which I cannot explore here. In his book-length treatment of this nuance, Kutz (2000) argued that a single bomber pilot did not make any real difference to the 1000-bomber raid on Dresden in February 1945, and therefore the pilot’s complicity could not be based in a causal contribution but on his “participatory intention.” Gardner (2007) argued explicitly against Kutz by saying that a causal contribution was necessary for complicity. See also Glover and Scott-Taggart (1975), who take a more explicitly consequentialist line.
Jogee [2016] UKSC 8. Because this judgement also provided a summary of the current state of complicity law, I will be citing it directly in the next section.
Section 8 of the Accessories and Abettors Act 1861 reads: “Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence […] shall be liable to be tried, indicted, and punished as a principal offender.”
Johnson v Youden [1950] 1 KB 544, at [546].
Jogee at [90]. The same example was used by Devlin J in National Coal Board v Gamble [1959] 1 QB 11.
In the original discussion of the father and son, Granville Williams believes the father should not be liable for reckless complicity with manslaughter, but could be liable for a ‘failure to prevent’ (1990, p. 12).
Husak (1980) discusses the relationship between omissions and causation.
Bland [1987] 151 JP 857.
This mirrors the law governing conspiracy. In R v Saik [2006] UKHL 18, D worked in a bureau de change in London, and suspected that the money he received was the proceeds of crime. He was convicted of conspiracy to launder money contrary to s. 93C (2) Criminal Justice Act 1988, but successfully appealed, arguing that he lacked the intention to conspire.
Consultation Paper no. 131 (1993) para 2.58.
Carter v Richardson [1974] RTR 314.
Ibid.
Rook [1993] 1 WLR 1005.
Bryce [2004] EWCA Crim 1231, para. 71.
To these two cases, Simester (2016, p. 237) also adds the case of Reardon [1999] Crim LR 392 (CA).
Report no. 305: Participating in Crime (2007), s. 3.77 ff. and especially the recommendations at s. 3.91 and 3.95.
The father-son example is important too because of the antecedent family relationship making it more likely that the father not only knows his son’s character well, but also identifies with him and his behaviour to a certain extent. Yaffe (2012, p. 437), in a response to Moore’s (2009) major work on causality in the law, argues that “sometimes a person’s responsibility for that to which he causally contributes depends on his recognition of an identity between himself and the protagonist of the event for which he is held responsible.”
As stated earlier, I stipulated that the father could be confident that the son would not steal the keys if he withheld them. But one can imagine a third ‘layer’ of recklessness. Imagine the son has stolen the keys and gone for a joyride on several previous occasions, and so the father has taken to keeping the keys on his person at all times. Under such circumstances, the father might on one occasion be reckless about leaving the keys lying around, knowing that his son will be tempted both to steal the keys and to go for the joyride. This third layer would indeed be too causally remote to make the father complicit with any resulting manslaughter.
It should be remembered that in non-murder offences there is room for discretionary sentencing, and so the father’s remoteness to the offence could be reflected in a lesser sentence than that given to the son.
In the same spirit, the reckless agent can be reasonably expected to know enough about certain patterns of natural events. In the classic case of R v Cunningham [1957] 2 QB 396, D broke a domestic gas meter in order to steal the coins inside, and was reckless about whether the gas might escape and endanger his neighbours. This presupposes a level of general knowledge about pipes, about gas and its poisonousness, and about human vulnerabilities.
Although we make character judgements of each other all the time (“my son is so impulsive”), we are also well aware of the limits of such judgements. And such limits are reflected in the criminal law’s reluctance to allow character judgements to play too big a role in prosecution and defence strategies.
Indeed, Kadish (1997, p. 388) floats the suggestion that reckless complicity would only be available in relation to felonies, the thought being that only a felony is serious enough to ‘drag’ the reckless secondary into the orbit of its culpability, whereas a mere misdemeanour would allow the reckless secondary to keep her ‘distance’.
One solution might have been to convict the mother of inchoate complicity under section 44 of the Serious Crime Act 2007. While the notion of inchoateness would suggest more discretionary sentencing, s. 58 (2) and (3) of the Act itself rules this out: “(2) If the anticipated or reference offence is murder, he is liable to imprisonment for life. (3) In any other case he is liable to any penalty for which he would be liable on conviction of the anticipated or reference offence.”
Jogee at [27]. In support, the judgement cites R v Smith (Wesley) [1963] 1 WLR 1200. In this case, Smith and P were in a bar, and started smashing the place up. During the violence, the bartender tried to restrain P, and P stabbed him to death. Smith was convicted of manslaughter on the basis that he knew that P was carrying a knife, and was involved in an illegal common venture that resulted in a homicide, even if Smith did not intend to kill anyone.
People v. Stanciel, 589 N.E.2d 557 (Ill. App. Ct. 1991).
Sections 19–22 have similar provisions in different contexts.
For a wide-ranging empirical discussion, see Schroth (1999).
S v Mkosiyana [1966] 4 SA 655, 658.
There are nuances here that I do not have the space to explore: authority is a moral-legal normative notion, and therefore technically a person with authority is not ‘encouraging’ a subordinate. Power refers to the ability of one person to make another, acting out of self-interest, do something that he would not normally do. Again, this is not really ‘encouraging’. (Remember that the notion of ‘control’ that I described as essential to enabling is something very different from the notion of controlling a subordinate or minion.).
See fn. 27.
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Acknowledgements
I would like to thank David Prendergast and Beatrice Krebs for very detailed comments on an earlier draft, as well as excellent comments from an anonymous reviewer.
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Cowley, C. Reckless Enabling. Criminal Law, Philosophy 14, 51–67 (2020). https://doi.org/10.1007/s11572-019-09499-4
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DOI: https://doi.org/10.1007/s11572-019-09499-4