Complicity, Proportionality, and the Serious Crime Act

This paper evaluates proportionate punishment and fair labelling in the context of complicity liability. It is argued that only full intentional and extreme (subjective) reckless assistance or encouragement is sufficient for holding a secondary party equally responsible for the principal's primary wrongdoing. It is also submitted that lesser mens rea states such as mere knowledge or belief provide a justification for grading certain forms of complicity as independent and less serious forms of criminality. More specifically, I examine the new provisions found in the United Kingdom's Serious Crime Act 2007 and argue that those provisions could be used in place of the older provisions dealing with accessorial liability to ensure that those who are only subjectively reckless in contributing to the criminality of others are punished less than the principal. If a person is going to be sent to prison for life for merely supplying a gun to a principal, then justice and fair punishment require that the assistance be intentional or at least extremely reckless