CONCEPTUALIZING INCHOATE COMPLICITY: THE NORMATIVE AND DOCTRINAL CASE FOR LESSER OFFENSES AS AN ALTERNATIVE TO COMPLICITY LIABILITY

This article tries to identify the limits of derivative liability and its alternatives. In this article, I provide a doctrinal and theoretical analysis of the new independent direct liability offenses found in section 44-46 of Britain’s Serious Crime Act 2007 to highlight how independent offenses punishing acts of assistance and encouragement are fairer than making accessories and perpetrators equally liable under the law of complicity. I also examine the conduct element for these offenses to determine whether it is apt for catching the sort of reckless encouragement that is often present in the joint enterprise (common purpose) complicity cases and conclude that it is. The main shortfall of the offenses found in the Serious Crime Act 2007 is that they do not cover reckless participation. I conclude that section 44 covers only intentional (inchoate) participation and that section 45 covers only oblique intentional (inchoate) participation. It is submitted that section 45 of the Act of 2007 should be supplemented with a section 45A offense criminalizing reckless (inchoate) participation. Section 45 is an independent offense that criminalizes personal wrongdoing and as it is not a form of derivative liability, but rather personal liability, it allows for fair labeling and proportionate punishment for the independent wrong involved in encouraging and assisting another to perpetrate a crime. Therefore, a variant of the section 45 offense with recklessness as its mental element would also allow for fair labeling and proportionate punishment