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- Title
REINTERPRETING THE MENTAL ELEMENT IN CRIMINAL COMPLICITY: CHANGE OF NORMATIVE POSITION THEORY CANNOT RATIONALIZE THE CURRENT LAW.
- Authors
BAKER, DENNIS J.
- Abstract
In this article, I will 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 "causal participation " element means the conduct element in complicity can only be made out in the common purpose/joint enterprise complicity scenario when there is intentional encouragement on the part of the accessory. Since the Accessories and Abettors Act 1861 U.K., 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 ofproportionate punishment and fair labelling. It is true that some forms of reckless encouragement and assistance will not be criminalized if the mental element in complicity is intention only, but a lesser offense of reckless participation would plug this lacuna and would allow for fair labelling and proportionate punishment. In this article, 1 draw on the common law of England and America, ancient and modern, to demonstrate that the common purpose complicity doctrine as expounded by Sir Robin Cooke in Chan Wing-Siu v. The Queen (and since adopted by the Lords in England) cannot be reconciled with a consistent line of authorities going back 500 years. Nor can it be reconciled with our contemporary human rights. Historically it was necessary for D2 to authorize D1's actions. Thus D2 could not be liable where he simply foresaw D l 's actions, especially when D2 had expressly forbidden those actions. D2 could only be liable if he had at least obliquely intended to encourage the perpetrator by impliedly authorizing any collateral crimes. Collateral crimes are normally conditional - they depend on what happens while the joint enterprise is being carried out. "Foresight " was only ever meant to pertain to D2's knowledge of any planned collateral crime that would be perpetrated where necessary to make the underlying joint enterprise succeed. It was not meant to supplant the requirement that any criminal response to the contingencies of a joint enterprise be intended and authorized. (D2's implied authorization forms the conduct element because it is factual encouragement). If lawmakers were to accept this interpretation, it would result in a radical narrowing of the doctrine as laid down in Chan Wing-Siu v. The Queen. Such a change, in practical terms, could raise concern that it would remove protection for society. However, this concern could be addressed by amending the Serious Crime Act 2007 U.K. to criminalize reckless participation. The advantage of amendment to the 2007 Act s offenses is that it allows for fair labeling and proportionate punishment.
- Subjects
UNITED States; RECKLESSNESS (Law); LABELING theory; LACUNAE in law; COOKE, Robin; HUMAN rights
- Publication
Law & Psychology Review, 2016, Vol 40, p119
- ISSN
0098-5961
- Publication type
Article