The individual participant's criminal liability for complicity in Norwegian criminal law

In Norwegian criminal law, each participant in a criminal act is assessed independently based on their own relationship to the offense. This departs from older theories of criminal law, where the accessory's responsibility had an accessory nature - meaning that there could be no question of accessory liability without a principal perpetrator being responsible.

In the Penal Code of 1902, this notion has been completely abandoned. The starting point is that each participant is only judged according to their own relation to the offense they have contributed to or attempted to contribute to. This is not expressed in any specific legal provision, but follows from the fact that all participants, both main perpetrators and accessories, are directly punished under the individual penal provisions, without the law indicating that they should be treated differently.

The Conditions for Punishability for Each Participant

Attempted Accessory Liability

An accessory can be punished even if the principal perpetrator has not progressed to a punishable attempt. An unsuccessful attempt to persuade another to commit a crime is punished as an attempt at accessory liability. The same applies to other forms of participation.

For example: A plans a theft and receives counterfeit keys and other assistance from B. Even if A does not go through with the attempt, B can be punished for attempted accessory liability. This may seem unnatural since the principal perpetrator goes free because they are only at the preparatory stage. The explanation is that the assistant has already made their contribution; it no longer depends on them whether the theft will occur or not.

Criminal Responsibility

The issue of criminal responsibility is assessed independently for each participant. If a participant is legally incapacitated, due to reasons such as insanity or young age, this does not affect the punishability of the other participants.

Subjective Guilt

The same applies to subjective guilt. If the principal perpetrator goes further than the accessory anticipated, the accessory is not liable for the excess. For example:

• If one assists in a robbery, one is not liable for accessory to murder if the principal perpetrator kills the victim

• If one participates in a theft, it does not become aggravated theft for one's part if one of the other participants, without one's knowledge, was armed

• If the participants agree to break in to obtain spirits, and one without the knowledge of the others takes the opportunity to steal cash or jewelry, the others are not liable for this

It is also possible that the principal perpetrator does not go as far as the accessory had anticipated; then it is only an attempted accessory for the exceeded part.

In some cases, one may be liable for intent, while another for negligence. For instance, a murderer may have persuaded a pharmacist to deliver poison without a prescription. In this case, the pharmacist cannot be punished for accessory to murder but perhaps for negligent homicide.

Special Intent Requirements

When the law requires a specific intent for the action to be punishable, it generally depends on whether the intent is present in each participant. However, this can lead to unreasonable results in some cases.

For instance: When a person is involved in another's theft, it does not seem to significantly affect the accessory's guilt whether he acts with the intent of personal gain or merely intends to harm the owner. It seems unreasonable that someone who consciously helped a thief should only be held accountable under the much milder provision of unlawful possession deprivation.

The organization of the law on this point is unclear and varies among different provisions:

1. In some cases, the penal provision is worded such that the intent requirement undoubtedly also applies to the accessory (e.g., § 257 concerning theft)

2. In many cases, the wording of the law's elements is ambiguous (e.g., § 255 concerning embezzlement)

3. In other cases, the wording of the law suggests that the intent of the principal perpetrator is decisive (e.g., § 134 concerning evading military service)

There is especially reason to make exceptions to the main rule in crimes that presuppose that the principal perpetrator is in a specific duty relationship, for example, betrayal (§ 275). The crime takes on its character through the conscious violation of the duty relationship. Therefore, one who deceives a subordinate into acting against the interests of the principal cannot be punished for accessory to betrayal even if he has the intent of personal gain; but the deceiver may be punished if the intent exists in the subordinate, even if the deceiver acts with other motives.

Other Conditions of Punishability

Other conditions of punishability are also individually assessed for each participant:

• A participant may be exempt from punishment due to withdrawal from an attempt without this applying to others

• A participant may fall outside the scope of Norwegian criminal law, while others fall within it

• The statute of limitations may apply to one participant but not to another

When a crime requires that the perpetrator is in a specific personal relationship, for example, kinship in the case of incest, the accessory can be punished even if he does not stand in such a relationship.

Objective Legitimacy

When there are reasons that make the action objectively legitimate, such as self-defense, necessity, or consent, this will generally apply to all participants. But this is not always the case:

• If someone threatens another with death to make them give false testimony to the police, the threatened individual may be exempt from punishment due to necessity, while the person who made the threat is naturally responsible for having incited the false testimony

• In wartime situations, an action may be a legitimate war act for a participant who is an enemy soldier while it may be punishable for another who is a Norwegian citizen

This principle was applied during the post-war legal settlements in connection with denunciations to the German occupation authorities. From the German perspective, arrests and sentences were legitimate exercises of public authority, but it was illegal for a Norwegian to assist the enemy in suppressing Norwegian resistance.

The same applies when a defendant makes a false statement. Even if the accused cannot be punished for this, someone who induces them to give a false statement can be punished for accessory liability.

Sentencing for Each Participant

Penal Code § 58 gives the courts the power to reduce the sentence below the normal minimum and to a lesser sentence for participants "if their contribution has been significantly induced by their dependent position to another guilty party or has been of minor importance compared to others."

Even though the wording could suggest that only accessories can benefit from sentence reduction, this is not how the provision is interpreted in practice. The latter alternative - the minor importance of the action - can indeed be more difficult to apply to the principal perpetrator, but the first alternative regarding the actor's dependent position can also be applied to the principal perpetrator.

A classic example is a thief who takes his young son along and uses him to crawl inside and fetch the valuables. The provision directly concerns only reduction below the usual minimum penalty, but the points are also relevant in sentencing within the ordinary penalty framework.

Under § 58's last clause, the punishment can in some cases be completely waived. The precondition is that the conditions for penalty reduction are present, and either that the relevant penal provision includes fines as a penalty alternative or that it concerns a misdemeanor. Here, the court has purely discretionary authority.

Conversely, there is an aggravating provision in the Military Penal Code § 28: When several soldiers are involved in an offense against the Military Penal Code, the penalty can be increased by up to one half. While Penal Code § 58 is motivated by the lesser subjective guilt that may exist in each participant, the military provision is motivated by the increased danger that an offense represents when carried out by multiple individuals.

Within the general area of the Penal Code, there is usually no provision to deviate from the upper penalty limit. However, in sentencing within the ordinary penalty framework, it can be an aggravating circumstance if the perpetrator, for example, has enticed a young person into the crime.

Conclusion

Norwegian criminal law follows a principle of independent assessment of each participant in a criminal act. This principle encompasses all conditions of punishability - from attempts and criminal responsibility to subjective guilt and specific intent requirements. Although this system generally yields reasonable results, there are cases where the wording of the law is unclear and can lead to unreasonable outcomes, particularly concerning requirements for specific intent.

The sentencing follows the same principle, but Penal Code § 58 gives the courts the ability to reduce or completely waive the sentence in cases where a participant's role has been less significant or characterized by dependency on another participant. This reflects an evaluation of each participant's subjective guilt and role in the criminal act.