Forms of Participation in Criminal Law PDF

CHAPTER X FOR MS OF PARTICIPATION Johannes Keiler 1. INTRODUCTION As discussed in previous chapters, the doctrines of criminal law traditionally combine to establish individual criminal liability. The paradigmatic case in criminal law is there...

CHAPTER X FOR MS OF PARTICIPATION Johannes Keiler 1. INTRODUCTION As discussed in previous chapters, the doctrines of criminal law traditionally combine to establish individual criminal liability. The paradigmatic case in criminal law is therefore that of a sole perpetrator who is both initiator and executioner of his criminal plans. However, the range of persons that could be involved in crime is often much broader. People frequently cooperate in one form or another in order to bring about a certain criminal result. Several people can for instance work closely together to produce, smuggle and distribute narcotics. Furthermore, it is also conceivable that one person might order or solicit another to commit a criminal offence, possibly promising a reward. Moreover, a person can simply provide aid or assistance, so that the criminal offence can be committed more easily, securely, etc. These cooperative criminal efforts, or cases of complicity, challenge our conceptions of individual responsibility, add a considerable degree of complexity to the evaluation of criminal liability and raise a number of intriguing but nevertheless difficult questions regarding the ascription of criminal responsibility.1 For one, on a fundamental level the question arises as to how the relationship between the perpetrator who commits the actus reus of the criminal offence and the participants who do not, but merely contribute to the commission of the offence, is best conceived. Is liability for participation in crime connected to the liability of the perpetrator(s) or is it an autonomous, independent form of liability? Related thereto is the question of how participation ought to be punished? If Simon hands Negan a gun, so that he can kill Rick, is Simon to receive the same punishment as Negan who pulled the trigger? Put differently, should every participant in a criminal offence receive the same punishment or should we differentiate between the different contributions? 1 Generally see: C. Kutz, ‘The philosophical foundations of complicity law’ in J. Deigh and D. Dolinko (eds.), The Oxford Handbook of Philosophy of Criminal Law (Oxford University Press 2011), p. 149. Intersentia 285  Johannes Keiler Questions moreover arise with regard to the doctrinal categorisation of the different conceivable degrees of involvement in a criminal endeavour. As can be seen from the above, people may collaborate in a variety of ways, reaching from ‘merely’ providing aid or assistance to orchestrating, planning and initiating the respective offence, and it is up to the criminal justice system to devise concepts that can capture the many facets of cooperative criminal behaviour. Besides this, difficult questions may also emerge regarding the required intent for liability for participation in crime. Is it for instance always necessary that the participant intended to contribute to a (criminal) goal which he shared with the perpetrator, or will a lower standard of culpability be sufficient? The answer to this question considerably shapes the scope of liability for participation in crime. Consider the example of Dave, the owner of a gun shop who sells a customer an alarm pistol, which can easily be modified to fire live rounds. Dave suspects that the customer may do so and use the gun for murder. However, he does not himself intend to facilitate murder, but is rather only interested in making a profit. Can he be liable for aiding in the event that the customer uses the gun to kill his wife? However, it is not only in garden-variety cases of participation that the applicable mens rea standard is of importance. It can also play an important role in situations where things do not work out as envisaged by the partners in crime. Consider the case of Anthony and Ben working together to rob a liquor store, in the course of which Anthony suddenly kills the uncooperative shopkeeper with a knife. In this case it is clear that Anthony has committed murder, but what about Ben? Will he be held liable for murder as well, at least to a certain extent? One may, perhaps, argue that this ‘collateral offence’ is part of the risk of being involved in such a dangerous criminal enterprise. If you cling together, you swing together? The answer to these and other questions, regarding the scope of liability for participation in crime, arguably also reveals a tension between the traditional protective function of criminal law and the modern, forward- looking, risk-reducing and risk-managing aims of criminal law.2 In this chapter we will deal with the basis upon which people participating in a criminal offence can be held criminally liable. We will see that penal systems have formulated different answers to the questions raised above and have devised a variety of modes of liability to respond to cooperative criminal efforts. In doing so, we will focus in particular on how the German, Dutch and English penal systems have conceived different concepts to cover the whole continuum of possible involvement in a criminal offence. But let us first be clear on the terminology used, and give a general overview of some conceptual challenges all systems have to solve. 2 C. Kutz, ‘The philosophical foundations of complicity law’ in J. Deigh and D. Dolinko (eds.), The Oxford Handbook of Philosophy of Criminal Law (Oxford University Press 2011), p. 149. 286 Intersentia  Chapter X. Forms of Participation 2. TER MINOLOGY AND SOME CONCEPTUAL CHALLENGES 2.1. TER MINOLOGY When trying to make a comparative analysis of participation in crime we have to realise that the terminology applied in different penal systems is diverse and can lead to confusion. It is therefore vital to be clear in our use of terms from the outset. It is proposed to use the following terms as indicated: 1. A perpetrator is a person whose liability is primary. This means that it can be established independently of all other parties involved in the commission of the offence. His liability is direct and not derived from someone else’s wrongdoing. The perpetrator can also be called the principal (offender). As we will see, perpetration is quite a broad notion, covering different forms of participation, but what they all have in common is that they encompass primary liability. 2. Accomplices or accessories are all those whose liability is derived from the wrongdoing of the perpetrator. In juxtaposition to the perpetrator, their liability is accordingly termed secondary or accessory. In civil law systems, this category includes notions of aiding and instigation. In the common law systems (of England and Wales) this category refers to notions of aiding, abetting, counselling and procuring.3 3. A participant is any partner in crime. This encompasses perpetrators and accomplices.4 2.2. THE EQUIVALENCE OF PER PETR ATORS AND ACCOMPLICES As already mentioned, on a fundamental level, a first major challenge for holding participants to a criminal offence responsible is the so-called equivalence problem: how should we theoretically define the relationship between the different participants in terms of their responsibility and subsequently their punishment? Should we make a clear-cut differentiation between their contributions, or are their roles really equivalent? There seem to be two different approaches that penal systems may adopt. On the one hand, a system might strive for a neat categorisation of participatory conduct into different modes, carrying varying degrees of punishment. It seems to make sense to hold each participant liable according to his particular 3 G.P. Fletcher, ‘Rethinking Criminal Law’ (Little, Brown and Company 1978), p. 637. 4 G.P. Fletcher, ‘Rethinking Criminal Law’ (Little, Brown and Company 1978), p. 637. Intersentia 287  Johannes Keiler contribution. On the other hand, it is possible to consider everyone participating in the criminal endeavour to have committed the offence and leave the precise meting out of punishment to the discretion of the courts. Generally, we can take the common law jurisdictions as representative of this ‘equivalence’ theory, which accepts, at least formally, that all participants should be held liable and punished in the same way.5 This utilitarian way of thinking about participation is well stated in section 8 of the Accessories and Abettors Act 1861: ‘Whosoever shall aid, abet, counsel or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any act passed or to be passed shall be liable to be tried, indicted, and punished as a principal offender.’ It follows that these two different conceptual approaches are also reflected in terms of sentencing. Some penal systems therefore recognise an obligatory mitigation of punishment for accessories (like Germany6 and the Netherlands7) and some systems that favour the ‘equivalence’ theory do not officially impose a mitigated punishment for lesser forms of participation (like England). One should however realise that this distinction is merely a superficial one, as it is still possible in the latter category of countries for punishment for accessories to be mitigated at the sentencing stage by judicial or prosecutorial discretion. The reason for this may be found in classical considerations of just punishment. The wrongdoing or culpability of the accomplice is traditionally considered to be less than that of the (main) perpetrator.8 2.3. THE DER IVATIVE NATUR E OF COMPLICITY It seems to be a defining feature of accessorial liability that it is commonly perceived as a category of ‘derivative liability’. Even the common law systems, which formally accept the equivalence theory and put all accomplices on an equal footing with the perpetrator, adhere to a derivative model of accessorial liability. In short, complicity is not a crime in and of itself (unlike the common law inchoate offences). No one is charged with complicity in the abstract.9 An accomplice always participates in the acts of another. In this sense, accessorial liability is derivative by nature. This raises several questions that have to be solved by all penal systems. 5 G.P. Fletcher, ‘Basic Concepts of Criminal Law’ (Oxford University Press 1998), pp. 189–193. 6 See §27 GCC that enshrines a mitigation of punishment for the aider. 7 See Article 49 DCC that holds that the maximum sentence for aiding shall be reduced by a third. 8 G.P. Fletcher, ‘Rethinking Criminal Law’ (Little, Brown and Company 1978), p. 654. 9 G.P. Fletcher, ‘Basic Concepts of Criminal Law’ (Oxford University Press 1998), p. 194. 288 Intersentia  Chapter X. Forms of Participation First, what does it mean to say that the accomplice’s liability derives from that of the perpetrator? As Fletcher points out, ‘[i]t must derive from something. The problem is determining what that “something” is.’10 It now seems to be common ground in all penal systems for the liability of the accomplice to be derived not from the specific status and culpability of the perpetrator, but from the wrongfulness of the criminal offence itself. This means that the perpetrator must have at least acted wrongfully or unlawfully, i.e. that his conduct was not justifiable. Thus, defences that are personal to the perpetrator himself (excuses like insanity) do not sever the derivative link, while defences of general application (justifications like self-defence) break the derivative link.11 The derivative relationship also means that the perpetrator must have at least attempted or prepared to commit the criminal offence in order for accessorial liability to arise. A second question, closely linked to the previous one, is how systems may solve the inherent limitations that are the result of the derivative nature of complicity, especially the problem of whether accomplices should still be held liable even if there has not (yet) been a criminal offence, viz. a criminal attempt. Imagine that Giulia incites Pedro to burn down the villa of her rich ex-husband Enzio, but that he changes his mind, or does not succeed in committing the offence, for example because he gets seriously ill before he could actually start to execute his plans. Is it then really acceptable that the ‘instigator’ could not be held criminally liable as there is no offence from which accessorial liability can be derived? Should we endorse the equivalence of completed instigation and attempted instigation? Or can this problem be solved in a different way? And what about the following problem: what if Michael agrees to lend Max his pistol for a heist that the latter plans to commit, but Michael gets arrested before he can actually give the required gun to Max? Should we distinguish between attempted aid and completed aid? It would seem that if we would say ‘no’ to this question there is no longer any derivative relationship between perpetrators and accomplices. Thirdly, the derivative nature of complicity can lead to some other interesting lacunas in the law. For instance, in order to prevent participants from going unpunished because the conduct of the perpetrator is not deemed sufficient to constitute the basis from which the liability of the participants may be derived, for example if the perpetrator can invoke a defence, etc., is it then feasible to conceptually define this form of contribution in such a way that it becomes possible to hold this ‘behind the scenes’ participant to be as liable as the ‘real’ perpetrator? In other words, how can we hold a participant criminally liable if he used another person who is not criminally liable as a tool to commit the actus reus of the offence? Some penal systems refer to this issue as the problem of indirect perpetration or perpetration by means. 10 G.P. Fletcher, ‘Basic Concepts of Criminal Law’ (Oxford University Press 1998), p. 195. 11 See: Chapter VIII, section 2.2. Intersentia 289  Johannes Keiler 2.4. MENS R EA AND DEVIATIONS FROM THE OR IGINAL PLAN A final challenge each penal system has to address is the following problem: what happens if one participant (perpetrator or accomplice), by mistake or deliberately, commits a crime that does not exactly correspond to the original plan? Conceptually this is primarily a problem of mens rea: how much does any participant have to know about what other participants end up doing in order to be criminally liable for the crime that is actually committed? This problem may first arise where the actual perpetrator commits another offence than originally intended by the instigator. Imagine that Mark induces Peter to steal some valuable paintings from an art gallery, but that Peter only steals some rare bronze sculptures. What would Mark’s criminal liability be if Peter does steal the paintings but on the way out beats up the owner of the gallery? Is it possible to hold Mark liable not only for instigating a burglary, but also for the assault? Similar questions may of course arise when aiders who are only assisting the perpetrator(s) do not know the exact details of the plan that has to be executed. What if Charles agrees to assist Peter with the robbery of a night shop, and Peter ends up killing the shop owner? How much does an aider have to know in order to be held liable for such collateral offences? In short, what is the required mens rea for aiding? This problem seems to be of particular importance in the so-called joint criminal enterprise. The simplest form of a joint enterprise is when several participants made a common plan to commit an offence, go ahead and commit that offence, but one participant commits a separate offence which goes beyond the original plan. Consider again the aforementioned example of Anthony and Ben teaming up to rob a liquor store. What if Ben was unaware of the fact that Anthony was carrying a knife or the two had previously agreed that the weapon should only be used to threaten? Can Ben nevertheless be held liable for the homicide? The central doctrinal conundrum is thus to determine which form of mens rea will be necessary to hold participants in crime liable for deviations from the common plan. 3. PARTICIPATION IN GER MANY 3.1. INTRODUCTION If several people cooperate to commit a criminal offence, the German penal system distinguishes between perpetrators (Täterschaft) and secondary participation (Teilnahme). Depending on the type and form of participation in criminal behaviour German criminal law distinguishes in total five different categories of participation in a criminal offence. These five categories can in turn 290 Intersentia  Chapter X. Forms of Participation be summarised again into three forms of perpetration (i.e. direct perpetration and perpetration by means (§25 (1) GCC) as well as co-perpetration (§25 (2) GCC)) and two forms of secondary participation (instigation (§26 GCC) and aiding (§27 GCC)). Before discussing the different forms of participation in crime, a closer look at the relevant articles in the German Criminal Code seems warranted. §25 GCC dealing with perpetration reads as follows: ‘(1) Any person who commits the offence himself or through another shall be liable as a perpetrator. (2) If more than one person commit the offence jointly, each shall be liable as a perpetrator (co-perpetrators).’ §26 GCC dealing with instigation reads as follows: ‘Any person who intentionally induces another to intentionally commit an unlawful act shall be liable to be sentenced as if he were a principal.’ §27 GCC dealing with aiding reads as follows: ‘(1) Any person who intentionally assists another in the intentional commission of an unlawful act shall be convicted and sentenced as an aider. (2) The sentence for the aider shall be based on the penalty for a principal. It shall be mitigated pursuant to §49(1).’ Perpetrators are generally thought to commit the offences in question themselves, while accomplices are deemed to participate in the wrongdoing of another. German criminal doctrine has devised an intricate system to attribute liability to participants in a criminal offence according to their degree of individual guilt and wrongdoing. Thus, German criminal law already distinguishes between the different forms of participation at the level of attribution in terms of the nature or degree of responsibility. The level of responsibility is grouped into different degrees, which diminish from the perpetrator to the accomplice. Perpetrators are eligible for the full punishment enshrined in the criminal offence in question, while aiders, due to their auxiliary role in the commission of the offence, are granted a mandatory mitigation of punishment pursuant to §27 GCC. The instigator, on the other hand, although formally considered to be an accessory to the wrongdoing of the direct perpetrator, effectively takes a medium position as he is eligible for the same punishment as the perpetrator pursuant to §26 GCC. According to this brief outline the following picture emerges in regard to the different forms of participation in German criminal law: 1. the (direct) perpetrator commits the offence himself, i.e. fulfils all the offence elements of the actus reus directly; Intersentia 291  Johannes Keiler 2. the perpetrator by means commits the offence through another by using him as a tool to commit the offence; 3. co-perpetrators commit the offence jointly; 4. the instigator incites another to commit the offence in question; 5. the aider assists another in the commission of the criminal offence. 3.2. DISTINGUISHING PER PETR ATORS FROM ACCOMPLICES Due to the fact that the aider’s wrongdoing and culpability for the criminal offence are considered to be less than that of the perpetrator, the distinction between the two categories has traditionally been of vital importance in Germany. To distinguish between perpetrators and accomplices, German law nowadays resorts to the so-called ‘hegemony over the act doctrine’. The decisive criterion of perpetration in this theory is, crudely stated, the hegemony and control over the execution of the criminal act.12 Accordingly, a person will be held liable as a perpetrator if he controlled the commission of the offence, considerably influenced the shape and manner of the commission and can thus be seen as the central figure in the crime.13 Conversely, an accessory is deemed not to be in a position to considerably shape the commission of the offence, despite his obvious influence on the course of events.14 Thus the intention of the perpetrator as well as his factual contributions to the manifestation of the actus reus need to be taken into consideration.15 The actus reus of the crime in question formally functions as a vantage point for the evaluation, which is subsequently extended by objective as well as subjective criteria. The objective criteria of the theory encompass the factual hegemony and control over the execution of the criminal act. This will be determined by taking into account the objective contribution of the person and its suitability to exert hegemony, as well as what interest (s)he had in achieving the criminal goal.16 The subjective element of the hegemony over the act doctrine encompasses the intention of the person. The person must desire to exert hegemony over the act and intend the 12 G.P. Fletcher, ‘Rethinking Criminal Law’ (Little, Brown and Company 1978), p. 655. 13 J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), p. 210. 14 C. Roxin, ‘Strafrecht Allgemeiner Teil, Band II: Besondere Erscheinungsformen der Straftat’ (Verlag C.H. Beck 2003), p. 10. 15 G.P. Fletcher, ‘Basic Concepts of Criminal Law’ (Oxford University Press 1998), p. 61; J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), pp. 210–212. 16 H.H. Jescheck and T. Weigend, ‘Lehrbuch des Strafrechts: Allgemeiner Teil’ (Duncker & Humblot 1996), p. 652. See also: 5 July 1966 BGH NJW 1966, 1763. 292 Intersentia  Chapter X. Forms of Participation manifestation of the objective offence definition.17 The following rough yardstick can be established: if a person’s conduct does and is merely meant to support the acts of the other(s) but influenced neither the mode of planning nor the commission of the offence, (s)he will more likely be considered an accessory. There is one further important repercussion of the hegemony over the act doctrine. Arguably a person can namely also possess hegemony over the commission of the offence despite not being directly and physically involved in it. Just think for instance of the boss of an organised crime syndicate. Thus, absence at the factual commission of the offence may not stand in the way of imposing liability as a perpetrator if it can be proven that the defendant played an instrumental role in the preparatory or planning stage of the offence.18 3.3. DIR ECT PER PETR ATION The first alternative of §25 (1) GCC, sole or direct perpetration, hardly needs any further elaboration. The German system generally applies a restrictive concept of perpetration. Anyone who, by his own hand, brings about the actus reus of the offence in question is considered to be a perpetrator. Thus, if Walter, having obtained a hunting rifle from his friend Jessie, subsequently shoots and kills his wife Skylar during her daily run in the park, Walter is the sole perpetrator of murder (§211 GCC), while Jessie could only incur liability as an aider.19 3.4. PER PETR ATION BY MEANS The notion of perpetration by means (mittelbare Täterschaft) is, as it is a form of perpetration, just like direct perpetration determined by the hegemony over the act doctrine. §25 (1) GCC succinctly defines the perpetrator by means as the person who commits the criminal act through another. In legal literature the perpetrator by means is more thoroughly defined as the person who uses another person as an instrument to bring about the respective offence definition.20 This other person will generally not be liable for various reasons. In accordance with the teachings of the hegemony over the act doctrine it is required that 17 H.H. Jescheck and T. Weigend, ‘Lehrbuch des Strafrechts: Allgemeiner Teil’ (Duncker & Humblot 1996), p. 652. See also: 5 July 1966 BGH NJW 1966, 1763. 18 See for instance: 18 January 1994 BGH NStZ 1995, 122. 19 If Jessie for instance also had an interest in killing Skylar liability as co-perpetrator could perhaps also be possible. Generally see: J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), pp. 213–214. 20 H.H. Jescheck and T. Weigend, ‘Lehrbuch des Strafrechts: Allgemeiner Teil’ (Duncker & Humblot 1996), p. 663. Intersentia 293  Johannes Keiler the deed can be viewed as controlled by the will of the perpetrator behind the scenes and that his influence controls the ‘instrument’.21 The relationship between the ‘instrument’ and the perpetrator behind the scenes must be one of subordination. This subordination can stem from a variety of reasons and it might not always be easy to establish in the particular case at hand.22 One way to establish such a relationship of subordination might be when the perpetrator behind the scenes controls the will of the ‘instrument’ (Willensherrschaft), for example by force, threat, or where the other person acts under duress.23 Another form of subordination might be established by superior knowledge (Wissensherrschaft), where the other person acts due to a mistake. In this respect it is irrelevant whether the ‘instrument’ erred with regard to a defence, the offence definition, the effect of his acts, etc. What is of relevance in this regard is ‘merely’, that the ‘instrument’ is to be treated more mildly by the law due to his mistake in comparison to the situation had he not been mistaken. A further form of perpetration by means is the use of an infant or insane person. Finally a controversial fourth form of perpetration by means based on a person’s power within an organisation (Organisationsherrschaft) has been developed. Crudely summarised, it can thus be stated that perpetration by means will be applicable in circumstances where on the side of the ‘instrument’ a lack of guilt, wrongdoing or fulfilment of all the elements of the offence definition can be established. A spectacular example of perpetration by means can be found in the fairytale-like ‘Sirius case’. In this case the defendant met the victim, who was emotionally and intellectually retarded, in a disco. He soon became her spiritual and philosophical leader, and she totally enslaved to him. To get the money from her life insurance he told her that he was from the planet Sirius whose inhabitants were on a much higher plane of philosophical sophistication than mankind. He pretended that he could also elevate her to this level of sophistication but for that she had to destroy her old body and acquire a new one. She would, he claimed, after killing herself awake in a new body as an artist in a red room on Lake Geneva. She was thus not completely aware that she was about to end her life. He instructed her to kill herself by dropping a hairdryer in the bath while she was in it, but the attempt failed. The Supreme Court convicted the defendant for attempted murder by perpetration by means, arguing that he had used his superior knowledge to use the woman as an instrument against herself.24 21 H.H. Jescheck and T. Weigend, ‘Lehrbuch des Strafrechts: Allgemeiner Teil’ (Duncker & Humblot 1996), p. 663. 22 H.H. Jescheck and T. Weigend, ‘Lehrbuch des Strafrechts: Allgemeiner Teil’ (Duncker & Humblot 1996), p. 665. 23 K. Hamdorf, ‘The Concept of a Joint Criminal Enterprise and Domestic Modes of Liability for Parties to a Crime: A Comparison of German and English Law’ Journal of International Criminal Justice (2007), p. 211. 24 5 July 1983 BGH NStZ 1984, 70. 294 Intersentia  Chapter X. Forms of Participation 3.5. CO-PER PETR ATION 3.5.1. General requirements Pursuant to §25 (2) GCC the notion of co-perpetration requires the joint commission of an offence by several persons. As co-perpetration (Mittäterschaft) is a form of perpetration, the hegemony over the act doctrine is applied here as well. But as several persons work together in the commission of the offence the hegemony over the act rests jointly on the co-perpetrators rather than on one individual. The notion of co-perpetration rests on a particular role allocation meted out in a common plan.25 In the light of this role allocation and the common plan, the responsibility for an offence is then imputed to the particular co-perpetrators. The common plan rests upon each participant and each participant is an equal partner in the joint commission of the offence, so that the respective contributions to the deed add up to a whole and the result of the offence can be attributed to each participant.26 The requisite consensus among the participants can be reached either explicitly or implicitly before the commission of the offence, but can also emerge in the course of the execution of the offence.27 A co-perpetrator does not necessarily need to know all the details of the common plan, but he or she must know the essential aspects of it.28 From an objective point of view, in the light of the common design, co-perpetration requires that each participant makes an essential contribution to the deed. A contribution is regarded as essential if the commission of the deed would be bound to fail without the contribution. The most obvious example of an essential contribution would be the involvement in the actual commission of the crime. However, as already mentioned, jurisprudence, due to the repercussions of the hegemony over the act doctrine, has also assumed co-perpetration on a regular basis in cases where the contribution was rendered much earlier, i.e. in a preparatory stage. The crucial requirement here is that the contribution made at a preparatory stage ‘lingers on’ in the commission of the crime. 25 K. Hamdorf, ‘The Concept of a Joint Criminal Enterprise and Domestic Modes of Liability for Parties to a Crime: A Comparison of German and English Law’ Journal of International Criminal Justice (2007), p. 21; J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), p. 214. 26 J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), pp. 214–219; M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), pp. 163 et seq. 27 J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), pp. 214–219; H.H. Jescheck and T. Weigend, ‘Lehrbuch des Strafrechts: Allgemeiner Teil’ (Duncker & Humblot 1996), p. 678. 28 K. Hamdorf, ‘The Concept of a Joint Criminal Enterprise and Domestic Modes of Liability for Parties to a Crime: A Comparison of German and English Law’ Journal of International Criminal Justice (2007), p. 212. Intersentia 295  Johannes Keiler In one pertinent decision the defendants were allegedly part of a criminal organisation which had specialised in smuggling cigarettes from the Czech Republic into Germany. On one occasion X had smuggled 21 packets of 88 cartons of cigarettes into Germany. B had subsequently helped to load the packets into a vehicle which he, together with another partner, S, had driven to a nearby petrol station, where they met up with D. The police had however become aware of the group’s dealings and arrested the members of the organisation at the petrol station. The Regional Court had acquitted B and D from the joint smuggling of cigarettes on a commercial basis as they had not been directly involved in the importation of the cigarettes. The Supreme Court however quashed the acquittal and referred the case back for re-trial. The BGH set out the following ‘sailing order’ for the re-trial: German Supreme Court, 15 July 1999, NStZ 1999, 609 ‘Regardless of the question when the offence of smuggling has been completed, co-perpetration […] can also arise when the respective contributions of B and D were, according to the initial plan of the offenders, to be rendered before the completion of the offence. The assumption of co-perpetration is also not barred by the fact that the defendants (i.e. B and D) did not carry out any actions proscribed by the actus reus of the offence of smuggling. It is sufficient for imputing liability as co-perpetrators that the defendants on a basis of the common plan and criminal intention contributed to the commission of the offence. Such a contribution may also consist of preparatory or other supportive conduct.’ 3.5.2. Deviation from the common plan Generally speaking, actions of co-perpetrators that exceed the common plan cannot be attributed to the other participants.29 This is particularly so in cases where the perpetrator commits an entirely different deed than intended by the common plan.30 However, as the common plan does not need to be elaborated in detail, minor deviations from the common design can be attributed to the other participants, if they were of a kind which one could reasonably expect in the execution of the crime and if they do not essentially alter the severity or dangerousness of the offence.31 Hence the cardinal question in this context 29 J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), p. 218. 30 K. Hamdorf, ‘The Concept of a Joint Criminal Enterprise and Domestic Modes of Liability for Parties to a Crime: A Comparison of German and English Law’ Journal of International Criminal Justice (2007), p. 215. 31 J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), p. 218. 296 Intersentia  Chapter X. Forms of Participation is ‘whether the act committed by one of the perpetrators was fundamentally different from the performance of the common plan as foreseen by the co-perpetrator’.32 The Supreme Court has formulated the principle in the following way: ‘co-perpetrators will be liable for any conduct of other partners which was reasonably expectable in the circumstances of the case at hand, even though the conduct in question was not explicitly envisaged by the defendant’.33 An instructive decision can be found in the following case. The defendants A and B had met the victim V around 8 pm on the street while on their way to a restaurant. V, who was drunk and in an aggressive mood, barged into A and B and insulted them. Irritated, A and B responded with shoving V, but the situation soon calmed down and A and B went to the restaurant and V to a nearby bar. Shortly afterwards, V left the bar again and saw A and B sitting in the restaurant. V yelled at and again insulted them, which infuriated A and B. The two now decided that V needed to be taught a lesson and, to be sure that they would come out of this situation victorious, A called his brother C, who had been weight lifting intensively for three years. When C arrived at the scene he put on weighted knuckle gloves, which A and B saw and approved of. The three then agreed that V ought to be punished for his behaviour. They found V in front of a pub and there the three jointly assaulted V, who went to the ground and was subsequently kicked three times in the torso by C. Nevertheless, V managed to flee into the bar, but not without first again insulting C. Furious, the three went after him and C continued his assault (still wearing weighted knuckle gloves), while A and B made sure that none of V’s friends inside the bar or other bystanders interfered. C landed several blows to V’s head and torso, which led to a broken nose and cheekbone. Still, V continued to insult and ridicule C, who as a result grabbed V and hurled him forcefully against the wall, which led to a skull fracture and severe lasting injuries. The Regional Court had convicted A and B inter alia of causing dangerous bodily injuries pursuant to §225 (1) No. 2 GCC, but had acquitted them of the aggravated offence of causing serious bodily injury pursuant to §226 GCC. Only C was found guilty of causing serious bodily injury, as according to the court the hurling of V against the wall amounted to a fundamental deviation from the common plan of A, B and C due to the severity and dangerousness of the conduct. The prosecution subsequently appealed and the Supreme Court overruled the judgment and referred the case back for a re-trial. In the following passages the Court first restates its general approach to deviations from the common 32 K. Hamdorf, ‘The Concept of a Joint Criminal Enterprise and Domestic Modes of Liability for Parties to a Crime: A Comparison of German and English Law’ Journal of International Criminal Justice (2007), pp. 216 et seq. 33 See: 26 April 2012 BGH NStZ 2012, 563. Intersentia 297  Johannes Keiler plan in the context of co-perpetration and subsequently points out some shortcomings in the Court of Appeal’s argumentation. German Supreme Court, 14 December 2016, NStZ 2017, 272 ‘A non-attributable excess [by one of the co-perpetrators – JK] only presents itself in case of substantial deviations from the common plan. Conduct of the other partners which was reasonably expectable in the circumstances of the case at hand will be deemed to be covered by the co-perpetrator’s intentions even though he had not explicitly envisaged the conduct in question. The same applies to deviations in which the agreed upon conduct is substituted by one which is equal in terms of severity and dangerousness. Likewise will a co-perpetrator be liable for any modality of an approved criminal offence if he was indifferent to the course of action of the other co-perpetrators. […] The Court of Appeal has failed to establish if the three defendants had agreed on a certain form of corporal punishment or agreed on certain limits or if they were ultimately indifferent as to which conduct of the other co-perpetrators would be a part of their retaliatory actions. […] Likewise has the Court of Appeal failed to establish whether the conduct which was part of the common plan (punching, kicking, etc.) was not equally dangerous as C’s conduct. It is not immediately clear why punches with weighted knuckle gloves were part and parcel of the common plan but not the hurling of V against the wall.’ The general mens rea standard for co-perpetration according to German law, as outlined by the court above, is thus intention (in the form of dolus eventualis). In any case, this case nicely demonstrates that some deviations that were to be expected under the circumstances, respectively mere minor deviations from the original plan or unforeseen outcomes, to which the participant was indifferent, can nevertheless be attributed to a co-perpetrator. This will be possible as long as the deviation does not lead to a substantial change in the severity and dangerousness of the offence. 3.6. FOR MS OF COMPLICITY: INSTIGATION AND AIDING 3.6.1. General requirements As forms of complicity, the liability of the aider and instigator is considered in German law to derive from the wrongdoing of the perpetrator.34 The corollary of this doctrinal approach is that liability for aiding can only arise after a criminal 34 J. Wessels, W. Beulke and H. Satzger, ‘Strafrecht Allgemeiner Teil, Die Straftat und ihr Aufbau’ (C.F. Müller Verlag 2014), p. 228. 298 Intersentia  Chapter X. Forms of Participation offence has been committed. It follows that attempted aid will generally not give rise to criminal liability. Thus, if John lends Bob a knife to kill his mortal enemy, liability for aiding can only arise once Bob has entered the attempt phase. The same reasoning would formally also apply to instigation, but the German legislator found this repercussion flowing from the derivate nature of the instigator’s liability untenable and therefore introduced §30 GCC, which now criminalises attempted instigation. Both aiding and instigation generally require an intentionally committed and unlawful act by the perpetrator. This means that assisting a person who can invoke an excusatory defence can give rise to liability for aiding and instigation, whereas this will not be possible if the perpetrator can invoke a justificatory defence, as such defences remove the wrongfulness of the perpetrator’s deed and accordingly also remove the necessary foundation for deriving liability. In addition both forms of secondary participation require intentional assistance, respectively instigation to or of the perpetrator’s act. 3.6.2. Instigation The actus reus of instigation pursuant to §26 GCC requires causing someone to commit an intentional and unlawful act. In Germany the emphasis thus lies more on the indirect violation of the legally protected interest by the instigator who causes another to commit an intentional and unlawful act. This indirect violation is seen in the communicated inducement of the perpetrator.35 Accordingly, the means of instigation can take any form of an explicit or implied inducement. One can think here of orders, persuasions, requests or the promise of a reward, as well as suggestions, questions, etc.36 The instigator causes another to commit a criminal offence. Thus, the means of instigation must have caused a psychological change in the mindset of the intermediary.37 The instigator must have evoked the will to commit the criminal offence.38 Before the instigation the intermediary had no plans (or concrete plans) to commit the criminal offence, but afterwards the will to commit the crime had been formed and the offence committed. We have already heard that the instigator must cause someone to commit a criminal offence, but this does 35 A. Schönke and H. Schröder, ‘Kommentar zum Strafgesetzbuch’ (Verlag C.H. Beck 2014), §26 Mn 3. 36 A. Schönke and H. Schröder, ‘Kommentar zum Strafgesetzbuch’ (Verlag C.H. Beck 2014), §26 Mn 4. 37 A. Schönke and H. Schröder, ‘Kommentar zum Strafgesetzbuch’ (Verlag C.H. Beck 2014), §26 Mn 1–2; C. Roxin, ‘Strafrecht Allgemeiner Teil, Band II: Besondere Erscheinungsformen der Straftat’ (Verlag C.H. Beck 2003), p. 149. 38 A. Schönke and H. Schröder, ‘Kommentar zum Strafgesetzbuch’ (Verlag C.H. Beck 2014), §26 Mn 1. Intersentia 299  Johannes Keiler not mean that the instigator must be the conditio sine qua non of the offence.39 A pre-existing proclivity of the instigated person thus does not preclude liability.40 This is a corollary of the simple practical fact that a person nurturing a certain criminal proclivity will be easier to persuade to commit an offence than someone whose mind is a tabula rasa. Even in situations where the instigated person offers his services to the instigator in exchange for a reward, liability for instigation is conceivable, as his concrete decision is dependent on the conduct of the instigator. With regard to mens rea standards, instigation, just like aiding, requires double intention in Germany. The instigator must intentionally induce the commission of the offence and must intend the offence to be committed. The instigator wishes the offence to be committed by the intermediary and he wants to be the instigator of this crime. Dolus eventualis will be sufficient. The knowledge of the instigator required in relation to the offence to be committed must encompass the essential elements but need not cover every detail.41 This essentially corresponds to the approach adopted by the English Court of Appeal in Bryce, mentioned below in relation to accessorial liability in general.42 Taking into account the temporal distance between the instigation and the commission of the criminal offence, it becomes apparent that in theory frictions can emerge if the intermediary deviates from what the instigator initially had in mind. If the deviation is only minor, the broad concept of dolus eventualis will in the majority of cases bridge the gap between what the instigator had in mind and what the intermediary effectively brought about.43 However, if for instance the perpetrator commits a less serious offence than envisaged, the instigator can, as his liability is derived from the offence of the perpetrator, only be liable for what was actually accomplished, provided it remains within the general category of offences that was contemplated by the instigator and not something completely different.44 It is however possible that the instigator will then be liable for attempted instigation pursuant to §30 GCC. If in the converse situation the perpetrator exceeds what was envisaged by the instigator, one will have to distinguish. Generally, the instigator can only be held 39 A. Schönke and H. Schröder, ‘Kommentar zum Strafgesetzbuch’ (Verlag C.H. Beck 2014), §26 Mn 2, 6. See also: 7 September 1993 BGH NStZ 1994, 29. 40 A. Schönke and H. Schröder, ‘Kommentar zum Strafgesetzbuch’ (Verlag C.H. Beck 2014), §26 Mn 6–9. 41 21 April 1986 BGH NStZ 1986, 407. See also: 12 September 1996 BGH NStZ 1997, 281. 42 R v Bryce 2 Cr App Rep 592. 43 A. Schönke and H. Schröder, ‘Kommentar zum Strafgesetzbuch’ (Verlag C.H. Beck 2014), §26 Mn 17–19, 22, 25. See also: 12 September 1996 BGH NStZ 1997, 281. 44 A. Schönke and H. Schröder, ‘Kommentar zum Strafgesetzbuch’ (Verlag C.H. Beck 2014), §26 Mn 25. 300 Intersentia  Chapter X. Forms of Participation liable for the crime he intended.45 If however the instigator was indifferent or negligent as to the result, liability seems possible. 3.6.3. Aiding The concept of aiding is an abstract one and myriad different forms of conduct may be subsumed under it. In general terms it can be stated that any conduct that furthered or made the commission of the offence easier, more secure or swifter can be qualified as aiding. Lending a jemmy to a known burglar or providing weapons for a robbery certainly constitute textbook examples. But opening a bank account under a false name for a friend in order to provide a vehicle for realising the proceeds of forged checks, hiring cars to be used in a robbery, transporting someone to or from the scene, or lending a helping hand during the commission of the crime, as for instance holding a security guard at bay, may also all give rise to liability for assistance. Jurisprudence, presumably to overcome evidentiary difficulties, requires that the assistance has furthered the offence. A strict causal link between the assistance and the commission of the offence is thus not required by the courts.46 The mens rea standards regarding aiding are remarkably similar to those of instigation. It is generally required that (i) a person intends to assist the act of the principal and (ii) that he knew the essential matters that constitute the objective elements of the offence. Thus, one can in general terms also speak here of a requirement of double intention. Dolus eventualis will be sufficient. Concerning the degree of knowledge of detail as to the criminal offence required by the aider, one can generally say that a generic form of knowledge or intention is required. The assistant’s knowledge must encompass the essential factual elements, but need not cover every detail. Generally, the assistant needs to know the type of crime that will be committed. It is thus immaterial that he did not know the exact particulars of the respective plan. Those were the merits of the English landmark decision in R v Bainbridge, which also reflects the prevalent view in Germany.47 In a pertinent German case, for instance, the defendant had sold special equipment to the perpetrator so that the latter could empty brand X slot machines. He had also demonstrated the usage of this equipment to the perpetrator in a local pub. With this equipment the perpetrator had over three months emptied several slot machines in the region. The Court of First Instance had acquitted the defendant as he did not know the exact time, place and other circumstances of the commission of the 45 A. Schönke and H. Schröder, ‘Kommentar zum Strafgesetzbuch’ (Verlag C.H. Beck 2014), §26 Mn 25. 46 See: 16 November 2006 BGH NJW 2007, 384. See also: 8 March 2001 BGH NJW 2001, 2409. 47 R v Bainbridge 1 QB 129. Intersentia 301  Johannes Keiler thefts subsequently carried out by the perpetrator. The Appeal Court however overruled the decision.48 Regional Court Bayern, 27 March 1991, NJW 1991, 2582 ‘The Court of First Instance acquitted the defendant of aiding the thefts committed by the perpetrator as he was unaware of the main features of the offences in question. Although it accepted that the defendant would empty slot machines of brand X with the equipment he had sold him, it argued that the main offence(s) remained too indeterminate as the defendant was inter alia unaware of the exact time and location of the thefts. By applying this reasoning the Court of First Instance has misinterpreted the general mens rea requirements for aiding. An aider ought to know that he is aiding a particular criminal offence of another and that his contribution will facilitate the commission of the offence. He however only needs to foresee the main features of the offence to be committed by the perpetrator. Details of the deed, i.e. when, where, against whom and under which circumstances the crime will be committed need not to be known by the aider. In the present case it was indeed unknown when, where and to whose detriment the theft would be committed. However, the defendant was well aware that the perpetrator would steal money from slot machines of the brand X. Therefore he had sufficient knowledge of the main offence to be carried out by the perpetrator.’ 4. PARTICIPATION IN THE NETHER LANDS 4.1. INTRODUCTION Just like the German penal system, the Dutch system distinguishes five different forms of participation in crime, depending on the degree and mode of involvement. These are enshrined in Title V, entitled ‘participation in a criminal offence’, in Articles 47–49 DCC. Article 47 DCC dealing with perpetrators reads as follows: ‘(1) The following are liable as perpetrators: 1. those who commit a criminal offence, either personally or jointly with another or others, or who cause an innocent person to commit a criminal offence; 2. those who, by means of gifts, promises, abuse of authority, use of violence, threat or deception or providing the opportunity, means or information, intentionally solicit the commission of the crime. (2) With regard to the last category, only those actions intentionally solicited by them and the consequences of such actions are to be taken into consideration.’ 48 See also: 7 November 2001 BGH NStZ 2002, 145. 302 Intersentia  Chapter X. Forms of Participation Article 48 DCC dealing with accessories reads as follows: ‘The following persons are liable as accessories to a serious offence: (1) those who intentionally assist during the commission of the serious offence; (2) those who intentionally provide the opportunity, means or information necessary to commit the serious offence.’ Article 49 DCC provides: ‘(1) In the case of complicity as an accessory, the maximum of the principal penalty prescribed for the serious offence is reduced by one third. (2) In the case of a serious offence carrying a sentence of life imprisonment, a term of imprisonment of not more than twenty years shall be imposed. (3) The additional penalties for complicity as an accessory are as for principals. (4) Only those actions that were intentionally facilitated or promoted by the accessory and the consequences of such actions are to be taken into consideration in sentencing.’ Contrary to common parlance and slightly differently from the German approach, Article 47 DCC distinguishes four forms of perpetration as the instigator is also considered to be liable as a perpetrator. While in Germany instigation is formally categorised as a form of secondary participation, the Dutch system puts the instigator on an equal footing with the perpetrator. This means that there exists in the Netherlands only one form of complicity, i.e. aiding, of which Article 48 DCC formulates two modalities: (i) aiding or assisting during the commission of the offence and (ii) providing the opportunity, means or information necessary to commit the offence. Article 49 DCC foresees a mandatory mitigation of punishment for aiders. Despite minor differences in the classification and scope of the different forms of involvement, both systems distinguish five forms of participation in crime. 4.2. DIR ECT PER PETR ATION: FROM A R ESTR ICTIVE TO A FUNCTIONAL APPROACH The least complicated form of direct perpetration is of course factual perpetration, where the person commits the actus reus himself. The challenge however in any penal system is how to deal with persons who play an instrumental role in conceiving, ordering, organising or controlling the commission of the offence rather than the factual perpetrator who is either unaware of the legal consequences of his conduct, or obeys orders or commands. There are several possible solutions to this problem of allocating criminal liability to ‘the mastermind behind the scenes’, of which perpetration by means and instigation are the most traditional ones. Depending on the exact nature of Intersentia 303  Johannes Keiler the relationship between the factual perpetrator and the one behind the scenes, one may prosecute the latter as a perpetrator by means or as an instigator. We will discuss both forms of participation later on. There is however another possibility for holding the perpetrator behind the scenes criminally liable, i.e. by enlarging the definition and scope of perpetration itself. We have seen how in Germany this has led to the hegemony over the act doctrine: not only the factual perpetrator is to be considered a perpetrator, but also, and even more importantly, the person who had some form of control over the commission of the offence. A similar development in Dutch jurisprudence has led to a comparable expansion of perpetration with the emergence of the so-called doctrine of ‘functional perpetration’. The notion of functional perpetration evolved gradually over time, but the landmark decision was the infamous IJzerdraad (iron wire) judgment in 1954 where the Supreme Court established the conditions under which the functionally responsible person behind the scenes could be held criminally liable. In this case the question arose in which circumstances the conduct of an export manager could be seen as the conduct of the owner of the company.49 The Supreme Court held that this could be the case if (i) it was within the owner’s power to control/determine the employee’s conduct, and (ii) the employee’s act belonged to a category of acts ‘accepted’ by the firm as being in the course of normal business operations. Accordingly the ‘IJzerdraad criteria’ are often dubbed the criteria of power and acceptance. The notion of power revolves around the factual control of the suspect over the (non-)manifestation of the criminal conduct. This aspect constitutes the normative core of the concept of power. The perpetrator with control over the factual perpetrator is in a (hierarchic) position to prevent the criminal conduct from occurring.50 The power to control can for instance be grounded in an employment relationship or other variations of subordination, as well as in close co-operation. The notion of acceptance on the other hand is a much more subjective criterion which in essence requires an intentional involvement in the conduct factually committed by another actor.51 Acceptance can for instance be assumed if the perpetrator was aware of the criminal conduct and embraced, tolerated or even encouraged it. It may be interesting to note that this doctrinal development towards non-restrictive, functional perpetration prepared the ground in the Netherlands for the gradual acceptance of the idea that not only natural persons, but also legal entities can be considered 49 HR 23 February 1954, NJ 1954, 378. 50 E. Gritter, ‘Functioneel plegen door een natuurlijke persoon’ in J.B.J. van der Leij (ed.), Plegen en Deelnemen (Kluwer 2007), p. 20. 51 E. Gritter, ‘Functioneel plegen door een natuurlijke persoon’ in J.B.J. van der Leij (ed.), Plegen en Deelnemen (Kluwer 2007), p. 28. 304 Intersentia  Chapter X. Forms of Participation functional perpetrators, and should therefore be held criminally liable. This will be discussed in Chapter XI. 4.3. CO-PER PETR ATION Article 47 DCC does not mention any criteria for the establishment of co-perpetration, but merely states that those who commit the offence jointly shall be punished as perpetrators. But how strictly should one interpret ‘jointly’? The answer is crucial for differentiating co-perpetration from mere aiding. The paradigmatic case of co-perpetration is of course when several people do an act that is part of the actus reus, for instance if in a robbery John wields a gun while his partner grabs the loot, or when in an assault Rick holds the victim while Mark hits him in the stomach. But is it really necessary that all participants contribute equally to the actus reus, or is a more extensive approach allowed, comparable with what we have seen in Germany? 4.3.1. Conscious, complete and close cooperation As early as 1934, the Dutch Supreme Court moved from a restrictive concept of co-perpetration to a more open one. In the case at hand, two men had according to a common plan set fire to a barn. The defendant in this case had held the ladder which his partner in crime used to climb to the loft to set fire to the hay stored there. At first, they were unsuccessful, as the hay seemed wet and did not catch fire, and a second attempt with dryer hay from the ground floor, which the defendant handed to his partner, also failed. Eventually, however, the hay caught fire and the barn burned down. The defence had argued that the Court of Lower Instance had wrongly convicted the defendant as a co-perpetrator of arson, as he had not committed any part of the actus reus of arson, but had merely provided help by holding the ladder, an argument based on a strict restrictive view of perpetration. The Supreme Court held that, taking into account the common plan of the two arsonists, their cooperation was so complete and close that it was in the end coincidental that the fire was effectively only set by the defendant’s partner. The conduct of the defendant could therefore not be characterised as providing assistance, but rather as co-perpetration.52 Thus, the Court established that an actual contribution to the manifestation of the actus reus was not required for the establishment of liability as a co-perpetrator, as long as the cooperation was intentional, complete and close. This requirement, i.e. conscious, complete and close cooperation, became the distinctive criterion 52 HR 29 October 1934, NJ 1934, 1673. Intersentia 305  Johannes Keiler for co-perpetration. It evidently consists of two parts, an objective one, i.e. complete and close cooperation, and a subjective one, i.e. the cooperation has to be conscious, hence intentional. The determining factor thus seems to be the intensity of the cooperation and from this landmark decision it can be deduced that a common plan or the exchangeability of roles can both be used to establish sufficiently close cooperation.53 4.3.2. Is physical presence necessary? A concrete physical contribution during the commission of the crime is no longer required for the establishment of co-perpetration. But is it also conceivable that a participant’s contribution during the preparatory phase, or even after the act, is so substantial that this amounts to co-perpetration? In other words, is there any kind of physical presence necessary for co-perpetration? Arguably there is a risk if one were to accept this possibility too easily, as the boundaries between perpetration and aiding may become unclear. Activities which are traditionally seen as aiding the commission of a crime, like procuring burglary tools or hiding the booty, would then be subsumed under the heading of (co-)perpetration. On the other hand, if a specific form of (preparatory) assistance is so essential for the commission of the offence, would it then still be just to qualify this behaviour as mere aiding? This is especially relevant for combatting more organised forms of crime. In addition, the person in the background conceiving and shaping the criminal behaviour (the mastermind) should be held liable as a co-perpetrator and not as an accomplice. Unsurprisingly it is now accepted in Dutch jurisprudence that neither a physical contribution nor presence at the commission of the crime is necessary for the establishment of co-perpetration. The Dutch Supreme Court started to develop this approach in 1981. The defendant in the case at hand had orchestrated the theft of semitrailers. He had planned the crime, chosen the trailers which should be stolen, had falsified letters of consignment to be shown to the police in the case of a traffic control, and provided a truck to transport the containers and a shed to which the loot could be brought. However, the defendant was not present at the theft of the trailers, which was carried out by his partners. The Supreme Court left the conviction for theft in co-perpetration intact and ruled that a physical presence at the locus delicti was not required, as long as the defendant had cooperated completely and closely with his partners.54 Nevertheless, the role of the not-present perpetrator in the preparatory phase or after the fact must have been a significant one in order to justify liability as a perpetrator. 53 M.M. Van Toorenburg, ‘Medeplegen’ (Deventer 1998), p. 126; J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 454 et seq. 54 HR 17 November 1981, NJ 1983, 84. 306 Intersentia  Chapter X. Forms of Participation 4.3.3. Is physical presence sufficient? The question may arise as to whether someone who is present during the commission of the offence and fails to distance oneself can be held liable as a co-perpetrator. While (continued) presence at the scene can in some circumstances be interpreted as contributing to the crime, especially where a person is present by virtue of a pre-arranged plan, it stands to reason that if we would apply this in a strict manner, such an approach would create a collective risk-responsibility, in cases where several people cooperate to bring about a prohibited harm. This would come close to the proverbial ‘cling together, swing together’. According to the individual guilt principle it seems to be generally accepted that mere presence during the commission of the crime is insufficient to amount to co-perpetration. The fact that a failure to distance as such is insufficient to establish co-perpetration is substantiated by a judgment from 2008. In this case, pieces of paving stone were thrown onto a motorway from a viaduct straddling the road. One of the pieces broke the windshield of a car, as a result of which the driver lost control of his vehicle and crashed into the crash barrier, which caused his death. Four adolescents were prosecuted for murdering the driver of the vehicle. But only two of the boys had effectively thrown the stones, while the others were merely present at the scene. Both the Court of First Instance and the Court of Appeal had acquitted the latter two as the mere failure to distance themselves was deemed insufficient to amount to co-perpetration. The Supreme Court upheld the acquittal. Here are some crucial paragraphs from the Supreme Court’s decision, starting with a summary of the public prosecutor’s argument for co-perpetration. Dutch Supreme Court, 18 March 2008, NJ 2008, 209 ‘3.2.2 The indictment of the Advocate General at the Court of Appeal involves the following: “Despite the fact that [suspect] himself has not thrown a stone and has therefore not executed the act himself, I believe that he was nevertheless so much involved in the throwing of the pieces of paving stone that he should be considered to be a co-perpetrator. According to the state of current jurisprudence, the bottom limit of co-perpetration is established by: – being part of a group and not just being present by accident; – not distancing oneself from that group if wrongful and criminal actions are taking place that are not unforeseeable, unexpected or sudden; – failure to intervene, thereby preventing co-perpetrators to commit offences, when it is foreseeable that new offences will be committed. The investigation revealed that the four suspects have acted as a group. The group drew together and moved a car from one location to another. Moreover, throwing the paving stone came to [suspect] as no surprise. He has foreseen what Intersentia 307  Johannes Keiler was going to happen. There have already occurred several similar incidents and all suspects, including [defendant], knew about that. [Suspect] commented that he soon felt that [fellow suspect 2] and [fellow suspect 1] were going to do something weird. He had the idea that [fellow suspect 2] did not see the seriousness of the matter. [Suspect] also stated that he had discussed with [witness] that they hoped that [fellow suspect 2] and [fellow suspect 1] were not going to do something crazy. [Suspect] has then said that he hoped they would not throw a brick or something like that. [Suspect] also stated that he heard [fellow suspect 1] and [fellow suspect 2] say they were going to throw something. Given the number of incidents and the time course of the events that evening, [suspect] could have distanced himself from the actions of his co-defendants. That did not happen. In his own words, he was unhappy with the state of affairs and he would also have expressed this to his co-defendants. According to his statement [suspect] was aware that he would be criminally liable for the actions of his friends. He literally says: ‘… and I was afraid, because I was there when they were throwing and I was afraid that I would be an accomplice.’ It is therefore remarkable that [suspect] decided to remain, even after having heard the remark of [fellow suspect 1] and [fellow suspect 2] that they were going to throw something, just before the fatal incident with the paving stone on the viaduct. Given the position of the car and where he was seated [defendant] must have seen that [fellow suspect 1] and [fellow suspect 2] had the tile pieces in their hands. He made no attempt to prevent [fellow suspect 1] and [fellow suspect 2] from throwing the tiles from the viaduct. Therefore, [the defendant] can be convicted as a co-perpetrator.”’ The Court of Appeal however acquitted the defendant of co-perpetration with the following pivotal motivation: ‘[T]he Court considers that the defendant has not committed any part of the actus reus, and neither has it been established that he agreed with throwing the pieces of paving stone. Also in relation to this last aspect, there have been no other facts or circumstances which should lead to the conclusion that there has been a close and complete cooperation between the suspect and the two fellow suspects.’ The Dutch Supreme Court upheld this decision: ‘The Court has acquitted the defendant for co-perpetration of murder and considered that in this respect the legal and convincing evidence is lacking. The Court has […] examined whether there has been such a close cooperation between the suspect and the two fellow suspects that defendant may be qualified as a co-perpetrator. The Court answered in the negative and held that the accused has not committed any part of the actus reus and that neither has it been established that he agreed with throwing the pieces of paving stone. In particular in relation to this last aspect, the Court further found that other facts or circumstances which should lead to the conclusion that there has been a close and complete cooperation were lacking. Part of the Court’s consideration is the opinion that the circumstance mentioned by the Advocate General that the defendant, according to the public prosecution, had knowledge of what was about to happen, but did not distance himself, is in the given circumstances 308 Intersentia  Chapter X. Forms of Participation insufficient to establish the required conscious and close cooperation This opinion does not show a wrong understanding of the concept of “co-perpetration”, while it does not exclude the possibility that such a conscious and close cooperation can also be reached “implicitly”.’ Generally, one may thus conclude from jurisprudence that the mere failure to distance oneself is insufficient to establish co-perpetration. At most it can only offer an additional argument by which the intensity of a pre-existing cooperation can be proven.55 4.3.4. The Supreme Court gives an overview In 2014 the Dutch Supreme Court summarised its earlier case law and gave a general overview about the doctrine of co-perpetration. The court emphasised that the question when certain conduct could be classified as co-perpetration was of great practical importance but could only be answered on a case by case basis. To make application of the law clearer the Supreme Court therefore highlighted several doctrinal points of interest and also came forth with a non- exhaustive list of factors that may indicate a close and complete cooperation between the participants. It thereby also touched upon the difference between co-perpetration and aiding. Dutch Supreme Court, 2 December 2014, ECLI:NL:HR:2014:3474, NJ 2015, 390 ‘3.1. Even if someone has not fulfilled all elements of a certain offence definition himself, Articles 47–51 DCC contain several options to hold someone […] liable for his involvement in a criminal offence, provided that certain requirements are fulfilled. In case of co-perpetration the conditions for liability require that a conscious, complete and close cooperation can be established. The emphasis thereby rests on the notion of cooperation and less on the question who committed which factual conduct. In praxis it is an important and difficult question when a cooperation was so close and complete to amount to co-perpetration. […] 3.2.1. Classifying conduct as co-perpetration seems only justified if an intellectual and/or material contribution of sufficient weight by the defendant can be established. […] This is especially important as in this context one is often faced with the question if a certain conduct amounts to co-perpetration or aiding. […] 3.2.2. This means that if the alleged co-perpetration does not essentially consist of the joint execution of the criminal offence but of conduct which is often associated with aiding (such as providing information, functioning as a lookout and providing assistance during flight), the judge if he nevertheless wants to establish co-perpetration, is under a strict obligation to carefully motivate his decision. When deciding whether or not the necessary complete and close cooperation 55 See for instance: HR 14 October 2003, NJ 2005, 183. Intersentia 309  Johannes Keiler for co-perpetration can be established the judge may consider factors such as: the intensity of the cooperation, the division of tasks among the partners, the role in the preparatory phase, the commission or execution of the offence and the importance of the defendants’ role therein, the presence of the defendant at crucial moments during the commission of the offence and his failure to distance himself from the criminal enterprise at a suitable time. In this context it has however to be noted that a failure to distance oneself on its own is not of great significance for establishing co-perpetration (as established in previous case law). After all, the crucial element [of co-perpetration – JK] is that the defendant contributed essentially to the commission of the criminal offence. […] 3.2.3. The contribution of the co-perpetrator will in general be rendered during the commission of the criminal offence in the form of a joint execution of the crime. But the contribution can also be rendered in the form of different conduct before and/or during and/or after the criminal offence. In addition, it can also not be ruled out that the contribution [of the co-perpetrator – JK] is mainly rendered before the commission of the criminal offence.’ Thus, in this landmark decision the Dutch Supreme Court provides on the one hand further guidance regarding the exact application of the doctrine of co-perpetration.56 On the other hand, the Supreme Court also sought to distinguish the concept of co-perpetration more clearly from the bordering notion of aiding. According to the Court, the difference between these forms of participation can arguably be found in the weight and quality of the contribution that the co-perpetrator, respectively the aider provides. While a co-perpetrator contributes significantly to the commission of the criminal offence, the aider (merely) supports or facilitates the commission of a criminal offence. Thus the intention with which a contribution is rendered will also be of importance.57 The Supreme Court thus confirmed the openness of the requirement of complete and close cooperation, which provides room for the lower courts to adjust the concept, based on a non-exhaustive list of factors, to the case at hand. 4.3.5. Deviation from the common plan As the criminal liability for co-perpetration is largely based on the common purpose or plan according to which the offence was committed, it seems to follow that deviations by one participant can generally not be attributed to the others. Yet, as the common plan does not need to be elaborated in detail, some deviations from the common design can under certain circumstances be attributed, if they were of a kind which one could reasonably expect to occur in the execution of the crime.58 In general the inherent dangerousness of the 56 See also: A. Postma, ‘Facetten van medeplegen’ Delikt en Delinkwent (2015), pp. 123–141. 57 A. Postma, ‘Facetten van medeplegen’ Delikt en Delinkwent (2015), p. 131 et seq. 58 HR 10 April 2007, NJ 2007, 224. 310 Intersentia  Chapter X. Forms of Participation conduct agreed upon, as well as the dangerousness of the means and instruments applied (e.g. usage of blunt objects, a knife or a firearm), will be important factors in the consideration of whether or not participants can be held liable for the collateral damage. The concept of dolus eventualis can facilitate the attribution of deviations from the common plan greatly in the event that the defendant knowingly and willingly exposed himself to a considerable chance that a certain consequence would result from his actions.59 The following case might serve as an example here. After an argument with a group of Albanians in a nightclub, the brothers A and B went to A’s house to pick up a gun and to subsequently confront the Albanians again. B had taken the gun and tried together with A to re-enter the nightclub, but the bouncers refused to let them in again. As a result, B randomly fired three shots at the closed door of the nightclub (allegedly to hit the bouncers), which caused the death of two young women standing behind the door. The defence had argued that the defendant had not accepted the considerable chance that his brother would fire at the bouncers. The Supreme Court however concurred with the reasoning of the Court of Lower Instance and held that given the fact that he was aware that his brother was carrying a gun and that his brother under certain circumstances could act violently, the defendant had accepted the considerable chance that his brother would act violently and maybe use the gun on their return to the nightclub.60 This example demonstrates that the concept of dolus eventualis will often mitigate the problem of differing intentions between co-perpetrators. It seems that only the most blatant and unforeseeable deviations from what the perpetrators had in mind cannot be attributed to a co-perpetrator in the Netherlands. Recent case law also seems to adopt a more objective (causality based) rationale to attribute deviations from the common plan. For example, the Supreme Court has ruled that the collateral offence of causing a deadly accident by dangerous driving can also be committed in co-perpetration if this conduct was (directly) connected to a prior offence committed in co-perpetration. In the case at hand, two men had caused the death of a pedestrian during their attempt to flee from the police after an unsuccessful robbery. The court held that if two men jointly commit a robbery (crime A) or attempt to, they may also be held jointly responsible for each other’s actions during an ensuing getaway (crime B) if the risk of crime B was inherent in crime A. This was the case even if no agreement as to this conduct had been reached between the co-perpetrators and despite the fact that the passenger could hardly influence the actions of the driver. The defendants were 59 See: Chapter VII, section 2.3. 60 HR 8 May 2001, NJ 2001, 480. Intersentia 311  Johannes Keiler thus convicted of negligently causing a deadly accident in co-perpetration and sentenced to four years’ imprisonment.61 4.4. PER PETR ATION BY MEANS Perpetration by means was originally created to hold the person behind the scenes criminally liable if the factual perpetrator himself is innocent. This may for instance be the case where the instigator of the offence makes use of a child, or a person acting under mistake or someone insane at the time of the commission of the offence. Suppose that the nanny Christine asks eight-year-old Michael to take a rare and valuable book from his father’s library, suggesting that it is really her own book. In this case Michael cannot be held liable because he is below the age of criminal responsibility. The intuitively correct solution for such cases is to punish the person who manipulates the innocent agent as a means to his or her criminal end. It is important to note that the notion of perpetration by means is hardly used any more due to the existence of the notion of functional perpetration. 4.5. INSTIGATION Closely related to perpetration by means is the doctrine of instigation, which is qualified in Article 47 DCC as a form of perpetration. Both forms of participation deal with the inducement of one person by another to commit a criminal offence. The reproach is accordingly in both situations that they have caused an intermediary to commit a criminal offence. The main difference however lies in the criminal status of the intermediary. While generally speaking, according to the doctrine of perpetration by means, the intermediary must not be criminally liable, i.e. must be an innocent agent, in relation to instigation the intermediary must be criminally liable for the offence committed. As the instigator induces another to commit a criminal offence, this implies that the instigator must have caused a psychological change in the mindset of the intermediary.62 Before the instigation the intermediary had no (concrete) plans to commit the offence, but afterwards the will to commit the crime has been formed and the offence is committed. However, this does not mean that the instigator must be the sole cause (the conditio sine qua non) of the offence. If there was already an existing desire to commit the offence, this will not preclude 61 Gerechtshof ’s-Hertogenbosch, 22 June 2016, ECLI:NL:GHSHE:2016:2428. This decision was later upheld by the Supreme Court in: HR 20 February 2018, ECLI:NL:HR:2018:241. 62 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 485; H.G.M. Krabbe, ‘Uitlokking’ in J.B.J. van der Leij (ed.), Plegen en Deelnemen (Kluwer 2007), p. 139. 312 Intersentia  Chapter X. Forms of Participation instigation if the means used actually form the extra persuasion to commit the crime. On the other hand, the fact that the instigator must cause the commission of the offence excludes cases where the person is already determined to commit the offence. It is however possible for his actions to still amount to aid and hence lead to liability as an accessory. 4.5.1. Means of instigation An interesting difference between the German and Dutch approaches to instigation is that Article 47 DCC circumscribes the means by which one can instigate, while in §26 GCC such a specification is absent. Article 47 DCC enumerates nine means which can be used for instigation, namely gifts, promises, abuse of authority, use of violence, threat or deception, and providing the opportunity, means or information. The form of a conclusive enumeration was initially chosen for the sake of legal certainty, but the broad interpretation given to these means in practice has diminished this endeavour.63 With regard to providing information, this must amount to more than a simple encouragement to commit the crime in question. It must consist of communicating facts or circumstances by which the commission of the offence is made possible or facilitated.64 While this definition still retains some value, in 2000 the Dutch Supreme Court adopted a new definition of providing information. In the case at hand, the Supreme Court held that providing information could be seen in a phone call from a mother to her son, telling him that an acquaintance had threatened to kill her, knowing that her son had a history of violent behaviour.65 The Court held that providing information encompassed factual statements which are important for the commission of the envisaged offence, in the sense that they are suitable in the circumstances of the case to procure the commission of the offence. By requiring that the information constitutes a factual statement, it is quite clear that there is still room for statements that only morally encourage, which are not a means of instigation. The difference seems to be that information is factual in nature, whereas this is not necessarily the case for simple encouragement. Although the means of instigation are interpreted broadly in the Dutch system, some means are still excluded. Not only encouragement, but also persuasion, begging, provoking or daring are insufficient means.66 This is notably different to the situation in Germany, where any means causing another to commit a criminal offence will be sufficient. 63 See also: WODC report, Daderschap en deelneming doorgelicht, pp. 111 et seq. 64 HR 29 October 1991, NJ 1992, 267. 65 HR 27 February 2001, NJ 2001, 308. 66 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 485. Intersentia 313  Johannes Keiler 4.5.2. Mens rea of instigation Instigation requires double intention. The instigator must intentionally induce the commission of the offence and must intend the offence to be committed. The instigator must wish that the offence be committed by the intermediary and must want to be the instigator of this crime. Article 47(1) sub 2 DCC contains the requirement that the instigator intentionally solicits the commission of a crime. The importance of this requirement is underlined by Article 47(2) DCC, which aims at situations where the intention of the instigator diverges from the intention of the intermediary. The instigator must thus intentionally solicit the commission of a crime, thereby using one of the nine means listed in Article 47 DCC. Furthermore, the instigator must act intentionally with regard to the particular offence which he wishes to be committed.67 4.5.3. Deviation from the instigator’s plan How does the Dutch system deal with situations where the perpetrator deviates from what the instigator had in mind? If the deviation is only minor, the concept of dolus eventualis will bridge the gap between the instigator’s intention and what actually took place. A nice example can be found in a case where A instigated B and C to steal a colour copier from a copy shop which he needed to forge money, by promising B and C a financial reward. B and C set out to steal the copy machine but returned with a black and white copier. A sent them back to the copy shop to steal the colour copier, but they were arrested by the police at the scene. The defence had argued that A’s intention was to instigate the theft of a colour copier and that he could not be held liable for instigating the theft of the black and white copier. The Supreme Court however held that A had accepted the considerable chance that another copy machine than intended by him might get stolen when he ‘hired’ B and C to carry out the theft.68 Thus, due to the broad concept of dolus eventualis, it can be said that the crime committed must correspond in a general way to what the instigator intended. 4.5.4. Attempt to instigate As we have seen, all forms of participation are derivative by nature; they depend on the commission of, or at least the attempt to commit, an offence. This is of course no less true for the liability of the instigator. But what if there is not even an attempt to commit the instigated crime, let alone a complete offence? What if 67 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 480; H.G.M. Krabbe, ‘Uitlokking’ in J.B.J. van der Leij (ed.), Plegen en Deelnemen (Kluwer 2007), pp. 141–144. 68 HR 29 April 1997, NJ 1997, 654. 314 Intersentia  Chapter X. Forms of Participation the instigated person changes his mind, or does not succeed in committing the offence, for example because he gets arrested before he could actually start to execute his plans? Like in the German system, the Dutch legislator considers it to be unacceptable if such circumstances were to lead to the instigator’s non-liability. Article 46a DCC therefore criminalises attempted instigation: ‘An attempt to instigate another to commit a crime by employing one of the means listed in Article 47(1), no. 2 is punishable, provided that no sentence is imposed that is heavier than that which may be imposed for an attempt to commit the crime, or, where such an attempt is not punishable, for committing the crime itself.’ As discussed in Chapter IX, this corresponds to the situation in England where ‘attempted instigation’ originally gave rise to liability for incitement (an inchoate offence), which has now been replaced by the Serious Crime Act 2007. It is important to keep in mind that the notion of the attempt to instigate should not be confused with the mirror notion of instigation to an attempted crime, for example when the instigated person shoots but misses his victim. In such a scenario the derivative nature of the instigation remains completely intact as there is at least an attempt to murder. In addition, it should be remembered that only the attempted instigation is punishable pursuant to Article 46a DCC, but attempted aid is not considered punishable. 4.6. AIDING From the wording of Article 48 DCC one can already distil some important features. Firstly, the article distinguishes between two different forms of aiding. Article 48(1) DCC deals with so-called concurrent forms of aiding; the accessory assists during the commission of the criminal offence. Article 48(2) DCC on the other hand deals with preceding forms of aiding; the accessory provides the opportunity, means or information necessary to commit the criminal offence. The distinguishing factor between Article 48(1) and (2) DCC is thus the temporal aspect of when the aid was provided. Nevertheless, this distinction has been watered down by a broad interpretation given by jurisprudence to the means in Article 48(2) DCC. Scholars have also criticised the distinction and have argued that the circumscription of preceding assistance no longer corresponds to the modern conception of criminal wrongdoing.69 The Supreme Court seems to have taken the criticism to heart and has started in recent jurisprudence to pay less attention to the distinction between the two forms of assistance.70 69 H.D. Wolswijk, ‘Medeplichtigheid’ in J.B.J. van der Leij (ed.), Plegen en Deelnemen (Kluwer 2007), pp. 193–194. 70 See: HR 24 March 2009, ECLI:NL:HR:2009:BG4831. See also: WODC report, Daderschap en deelneming doorgelicht, p. 47. Intersentia 315  Johannes Keiler Concerning the actus reus of aiding, it needs to be established in regard to Article 48(1) DCC that the aid furthered or facilitated the commission of the offence71 and in regard to Article 48(2) DCC that the aid facilitated or made the commission of the offence possible.72 According to Dutch jurisprudence it is not necessary that the aid provided constitutes a conditio sine qua non. It is sufficient that the conduct in question furthered the commission of the offence. The mens rea standards for aiding are comparable with those in Germany. Just like for instigation, a double intention is required. The person must (i) intend to assist the act of the perpetrator and (ii) know the essential matters that constitute the objective elements of the offence. In general dolus eventualis is sufficient. Concerning the degree of knowledge that is required by the aider, one can safely say that a generic form of knowledge is sufficient. The aider must know the general type of crime that will be committed, but he does not have to know the details of the respective plan (of the perpetrator). A good example of this requirement is a case where the defendant had assisted three of his friends in an attempt to kill the victim. He had provided the means of transportation for finding the victim and had functioned as a driver. He did not however know the precise manner of the planned attack. In the course of the attack one of the perpetrators pulled out a gun and fired several shots at the victim. The Court of Appeal had acquitted the defendant, but the Dutch Supreme Court quashed the acquittal and held that in order for liability for assistance to arise it was not necessary for the defendant to know the precise manner of the commission of the offence, but that it was sufficient that he was generally aware of the type of crime he was assisting.73 It follows that if a variation were to occur which affected a specific aspect of the offence that the participant wanted to assist, this may impede a conviction for assistance. For example, if John hands Peter a duplicate key to burgle his aunt’s apartment, but when she catches him in the act he assaults her, John is arguably not liable for assisting Peter in the assault. However, liability can still arise if the collateral offence was a foreseeable consequence. Dolus eventualis will make the attribution possible. A case in point is that of two brothers who were threatened by two acquaintances. Before the four met again, brother A handed B a gun and it was agreed that he should hold the two acquaintances at bay. However, the situation escalated and B killed one of the visitors. The defence argued that A had not intended the killing of the visitor, but the Supreme Court held that when handing his brother the gun he had accepted the considerable chance (dolus eventualis) that his brother would use it to kill.74 71 HR 7 April 1998, NJ 1998, 558. 72 HR 10 June 1997, NJ 1997, 585. 73 HR 4 March 2008, NJ 2008, 156. 74 HR 26 February 1985, NJ 1985, 651. 316 Intersentia  Chapter X. Forms of Participation 5. PARTICIPATION IN ENGLAND AND WALES 5.1. INTRODUCTION If several persons are involved in the realisation of a criminal deed, English criminal law distinguishes between primary parties, also called perpetrators or principals, and secondary parties, also called accessories or accomplices. Perpetrators are the persons who directly bring about the actus reus of the offence. Their liability is directly based on the respective definition of the criminal offence. Accomplices on the other hand ‘merely’ contribute to the offence committed by the perpetrator. The legal basis for accomplices for indictable offences is enshrined in the Accessories and Abettors Act 1861. Section 8 of the Accessories and Abettors Act 1861, as amended by the Criminal Law Act 1977, reads as follows: ‘Whosoever shall aid, abet, counsel or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any act passed or to be passed shall be liable to be tried, indicted, and punished as a principal offender.’ However, not much heed is paid to a clear demarcation of the four notions in English law and neither is the distinction between perpetrators and accomplices regarded as vital. This blurry demarcation stems on the one hand from the fact that accomplices are put on an equal footing with perpetrators and can be punished as such, i.e. each of them is deemed to be guilty of the full offence.75 Furthermore this is compounded by the fact that judges are not obliged to state in their verdicts whether a person was found guilty as a perpetrator or as an accomplice. ‘The crucial point is that the jury must be unanimous that the accused was either the principal or an accessory’.76 In addition, it is merely required that the adduced evidence proves that the act of the defendant falls within one of the four categories.77 5.2. PER PETR ATION Usually the perpetrator is referred to as the one whose act is the most immediate cause of the actus reus.78 Thus, it becomes apparent that English 75 A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doc