[3] In cases where one is complicit because of a failure to act when one has a duty to act to prevent a crime, complicity differs from omission in that liability for complicity arises from the related to other perpetrators, whereas liability for omission arises from a duty relationship to the victim.
[5] For two persons to be complicit in a crime that does not involve negligence, they must share the same criminal intent; "there must be a community of purpose, partnership in the unlawful undertaking".
[11] An accessory after the fact was a person who knowingly provided assistance to the principals in avoiding arrest and prosecution.
This is no longer the law in England and Wales since the Supreme Court in R v Jogee (2016), following the work of Professor Baker, held that the mental element in complicity is intention.
Lord Toulson, in the foreword to Professor Baker's monograph, Reinterpreting Criminal Complicity and Inchoate Offenses, (2016) writes: "I had a copy of the manuscript of this book when examining the issues raised in R v Jogee [2016] UKSC 8, and it was helpful to me.
Professor Baker’s arguments on the point, which was of central importance in that case, that foresight is evidence from which intention may be inferred, but no more than evidence, and that secondary liability for a criminal offense requires intent to encourage or assist its perpetration, were well researched and cogent.
All in all, Professor Baker’s book is a valuable contribution to the understanding of an important and sometimes confusing part of the criminal law."
In Dennis J. Baker, Glanville Williams: Textbook of Criminal Law, (London: Sweet & Maxwell, 2015) at paras 17-067–17-069; 17-045; et passim, Baker writes: “[U]ntil the decision in the House of Lords in R. v. Powell changed the law [Baker explains elsewhere why there might still have been room to move before R v Powell], the foresight of possibility rule (i.e., the accessory’s foresight of the collateral crime as a possible incident of the underlying joint enterprise), like the probable and natural consequences maxim, was a mere maxim of evidence for inferring that the common purpose extended to the collateral crime.” … Baker goes on: “I will focus on the rules that have been developed for allowing a jury to infer intention and reckless foresight for the purpose of establishing common purpose complicity.
”Furthermore, Baker in the Glanville Williams Textbook of Criminal Law published in September 2015, wrote: “However, the courts have run into error by failing to see that contemplation or foresight of the potential conditional crimes is a special requirement in complicity liability because the accessory’s liability is contingent on the perpetrator’s future criminal choices.
There might be sufficient evidence for a jury to infer that the accessory encouraged the perpetrator by voluntarily agreeing to participate in the underlying criminal joint enterprise if it can also be established that there was a mutual expectation that certain conditional collateral crimes would be perpetrated to make their underlying criminal joint enterprise succeed.
The title of Baker's paper, is basically part of the ratio of R v Jogee as far as the mental element is concerned.
Other academics took the view that joint enterprise was a separate form of complicity with recklessness as to its mental element but attacked the policy injustice of such an approach.
David Ormerod and Karl Laird, Smith and Hogan Criminal Law, (Oxford University Press, 2015) at 238.
578, 598-599 (2006); Jeremy Horder and David Hughes, Joint Criminal Ventures and Murder: The Prospects for Law Reform, 20 KING’S L.J.
See also Baker, Dennis J, Reinterpreting the Mental Element in Criminal Complicity: Change of Normative Position Theory Cannot Rationalize the Current Law (February 4, 2015).
Most jurisdictions hold that accomplice liability applies not only to the contemplated crime but also any other criminal conduct that was reasonably foreseeable.
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 was a foreseeable consequence of the original conspiratorial agreement.
[17] The doctrine of the 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 offense with which they are charged.