Complicity

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For the novel, see Complicity (novel). For the film adaptation of the novel, see Complicity (film).
"Complicit" redirects here. For the play, see Complicit (play).

An individual is complicit in a crime if they are aware of its occurrence and have the ability to report the crime, but fail to do so. As such, the individual effectively allows criminals to carry out a crime despite potentially being able to stop it from happening, either directly or by contacting the authorities. The offender is a de facto accessory to the crime, rather than an innocent bystander.

Law relating to complicity varies. Usually complicity is not a crime although this sometimes conflicts with popular perception. At a certain point a person that is complicit in a crime may become a conspirator depending on the degree of involvement by the individual and whether a crime was completed or not.

Complicity is a doctrine that operates to hold persons criminally responsible for the acts of others. Complicity encompasses accessorial and conspiratorial liability. Accessorial liability is frequently referred to as accomplice liability.

An accomplice is a person who helps another person commit a crime, Accomplice liability involves primary actors who actually participate in the commission of the crime and secondary actors who aid and encourage the primary actors. The aid can be either physical or psychological. The secondary actors are called accomplices.

Common law[edit]

At common law actors were classified as prices and/or accessories.[1] Principals were persons who were present at the scene of the crime and participated in its commission.[2] Accessories were persons who were not present during the commission of the crime but who aided, counseled, procured, commanded, encouraged or protected the principals before or after the crime was committed. Both categories of actors were further subdivided. Principals in the first degree were persons who with the requisite state of mind committed the criminal acts that constituted the criminal offense.[3] Principals in the second degree, also referred to as aiders and abettors, were persons who were present at the scene of the crime and provided aid or encouragement to the principal in the first degree.[4] Accessories were divided into accessories before the fact and accessories after the fact. An accessory before the fact was a person who aided, encouraged or assisted the principals in the planning and preparation of the crime but was absent when the crime was committed.[5] An accessory after the fact was a person who knowingly provided assistance to the principals in avoiding arrest and prosecution. It was eventually recognized that the accessory after the fact, by virtue of his involvement only after the felony was completed, was not truly an accomplice in the felony.[6]

Types of assistance[edit]

To be deemed an accomplice, a person must assist in the commission of the crime by "aiding, counseling, commanding or encouraging" the principal in the commission of the criminal offense. Assistance can be either physical or psychological. Physical assistance includes actual help in committing the crime as long as the acts of assistance do not constitute an element of the offense. It also includes such things as procuring weapons to be used to commit the crime, or serving as a lookout during the commission of the crime or providing protection from arrest or prosecution after the crime’s commission. Psychological assistance includes encouraging the principal to commit the offense through words or gestures[7] or mere presence as long as the principal knows that the accomplice purpose is present to provide assistance. It is not necessary that the accomplice's acts cause or contribute to the principal's committing the crime. In other words the prosecution need not prove that the accomplice's acts were either a proximate cause or cause in fact of the crime.[8]

The prosecution must show that the defendant provided assistance, and intended to assist the perpetrator. While substantial activity is not required, neither mere presence at the scene of the crime nor even knowledge that a crime is about to be committed count as sufficient for accessorial liability.[9]

Joint participation and assistance[edit]

Two or more persons may act as principals in the first or second degree or as accessories. For example, one person may hold a gun on the clerk of a convenience store while a second person takes the money from the cash register during a robbery. Both actors are principals in the first degree since each does an act that constitutes the crime and each acts with the necessary criminal intent (to steal). Even though neither did all the acts that constitute the crime under the theory of joint participation or acting in concert the law treats them as partners in crime who have joined together for the common purpose of committing the crime of robbery and each is held responsible for the acts of the other in the commission of the object offense.

Mental states[edit]

Two mental states are required for accomplice liability. First, the accomplice must act with at least the same mental state required for the commission of the crime. For example, if the crime is common law murder the state must prove that the accomplice acted with malice. Second, the accomplice must act for the purpose of helping or encouraging the principal to commit the crime.

The accomplice can be guilty of a greater offense than the perpetrator. For example, A and B discover B's wife in an adulterous relationship with C. A says kill C. B pulls his gun and shoots C killing him. B would have the benefit of provocation which would reduce his offense to manslaughter. A, however, would be guilty of murder.

Liability of accomplices for unintended crimes[edit]

Questions arise as to the liability of accomplices for unintended crimes committed by a co-actor, such as whether a getaway driver outside of a building should be responsible for a shooting carried out by an accomplice inside. Most jurisdictions hold that accomplice liability applies not only to the contemplated crime but also any other criminal conduct that was reasonably foreseeable.[10]

Conspiratorial liability[edit]

A conspiracy is an agreement between two or more people to commit a crime or unlawful act or a lawful act by unlawful means. In the United States, any conspirator is responsible for crimes within the scope of the conspiracy and reasonably foreseeable crimes committed by coconspirators in furtherance of the conspiracy, under the Pinkerton liability rule.[10] Notice the extent of potential liability. Under the Pinkerton rule, the conspirator could be held liable for crimes that they did not participate in or agree to or aid or abet or even know about. The basis of liability is negligence - the conspirator is responsible for any crime that were a foreseeable consequence of the original conspiratorial agreement.

WIth the exception of an accessory after the fact in most cases an accomplice is a co-conspirator with the actual perpetrator. For example, the person who agrees to drive the getaway car while his confederates actually rob the bank is principal in the second degree for purposes of accessorial liability and a co-conspirator for purposes of conspiratorial liability. However, many situations could arise where no conspiracy exists but the secondary party is still an accomplice. For example, the person in the crowd who encourages the batterer to "hit him again" is an aider and abettor but not a co-conspirator. As Dressler notes, the difference between the two forms of complicity is that with a conspiracy an agreement is sufficient and no assistance is necessary, whereas with accessorial liability no agreement is required but some form of assistance is necessary for liability.[11]

Innocent Agency[edit]

The doctrine of innocent agency is a means by which the common law attaches criminal liability to a person who does not physically undertake some or all of the offence with which they are charged. A person acts through an innocent agent when they intentionally cause the external elements of the offence to be committed by a person who is themselves innocent by reason of lack of a required fault element, or lack of capacity.[12] A person who uses an innocent agent is subject to the same liability as if they were the one who committed the actus reus.[13]

Notes[edit]

  1. ^ The classification system applied to crimes commited. For treason all actors were considered principals. For misdemeanors participants included principals in the first and second degree and accessories before the fact. There were no accessories after the fact with respect to misdemeanors.
  2. ^ Presence could be either actual or constructive.
  3. ^ Lafave (2000) sec 6.6(a). See also Osland v R [1998] HCA 75; 197 CLR 316 AustLii
  4. ^ Lafave (2000) sec. 6.6(b).
  5. ^ Lafave (2000) 6.6(c)
  6. ^ Sickmann, Andrew John. Accomplice Liability: American Jurisprudence Injecting Mens Rea Under False Hopes of Criminal Deterrence.
  7. ^ Lafave (2000) sec. 6.7(a_
  8. ^ "But for" causation not required for accessorial liability. The fact that the primary actor would have committed the offense regardless of the assistance is not a defense.
  9. ^ Pattern Criminal Jury Instructions, Federal Judicial Center West (1988).
  10. ^ a b Singer & LaFond, Criminal Law (Aspen 1987)
  11. ^ Joshua Dressler, Understanding Criminal Law, 3rd ed. (Lexis 2001) ISBN 0-8205-5027-2 at 487.
  12. ^ McHugh and Gummow JJ in Pinkstone v R [2004] HCA 23
  13. ^ http://www.austlii.edu.au/au/cases/cth/HCA/2004/23.html

Sources[edit]