Locating Complicity: Choice, Character, Participation, Dangerousness and the Liberal Subjectivist

The dominant liberal subjectivist account of the criminal law presupposes a nexus between the conduct and culpability of the defendant, the type and extent of any liability imposed, and the concomitant punishment. As such, liability should attach only where this accords with the requirements of individual justice. This priority manifests itself in the doctrinal structuring of criminal offences, which comprise a sufficiently causative 'actus reus' in coincidence with the appropriate level of mental culpability, as signified by the requisite 'mens rea', and the absence of a justificatory or excusatory defence. As has often been noted, however, this central ideal is in competition with a parallel need; that of regulating society and preventing harm. The tension inherent to addressing these twin aims is evident in a consideration of accomplice liability, which has long posed problems for the operation of the criminal law, and has been revisited on numerous occasions by the appellate courts, the Law Commission and scholars.