ABSTRACT
This monograph tries to identify the limits of derivative liability and its alternatives in an attempt to build a case for reinterpreting the mental element in complicity so that it requires nothing less than intention. If the courts accept the interpretation of complicity under section 8 of the Accessories and Abettors Act 1861 as presented in this monograph, then it is necessary to find a law that can deal with reckless participation. In this chapter, I provide a doctrinal and theoretical analysis of the new independent direct liability offences found in sections 44-46 of the Serious Crime Act 2007 to ascertain whether they cover reckless participation and reckless inchoate participation. I also examine the conduct element for these offences 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 offences 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. Consequently, interpreting the mental element in complicity as requiring nothing less than intention will leave a lacuna in the law. It is submitted that section 45 of the Act of 2007 should be supplemented with a section 45A offence criminalising reckless (inchoate) participation. Section 45 is an independent offence that criminalises personal wrongdoing and as it is not a form of derivative liability, but rather personal liability, it allows for fair labelling and proportionate punishment for the independent wrong involved in encouraging and assisting another to perpetrate a crime. Therefore, a variant of the section 45 offence with recklessness as its mental element would also allow for fair labelling and proportionate punishment.
