The Liability of Accessories under Statute, in Equity, and in Criminal Law: Some Common Problems and (perhaps) Common Solutions

[This article focuses on accessorial liability under statute, in equity and in criminal law. One of its purposes is to identify some of the common problems that have arisen in determining the liability of accessories in different areas of civil law, whilst drawing some comparisons with the criminal law. It will be argued that the problems that need to be addressed in determining accessorial liability are largely similar in the different contexts, even if they are often formulated in superficially different ways. This article surveys some of the different approaches, though such an overview, of necessity, cannot address (nor attempt to solve) comprehensively all the problems surrounding the liability of accessories in each of the areas of law that are being considered. However, some limited conclusions about possible ways forward will be suggested. Indeed, this article suggests that until the law develops a stable and consistent means of analysis to determine when a person is liable as an accessory to another person’s wrongdoing, we cannot begin to resolve the ongoing difficulties relating to accessorial liability. Hence, a further aim of this paper is to attempt to articulate a series of common questions that are applicable to civil accessorial liability in all circumstances, regardless of the area of law within which it arises. Without such a stable means of analysis, it may be difficult to tackle fundamental normative questions, including what the precise scope or limits of accessorial liability ought to be in relation to particular wrongs. Such an attempt is worthwhile, in my view, notwithstanding that the function or goals of accessorial liability will depend on the specific context within which such liability operates.]