Accessory Liability and Common Unlawful Purposes
![handle is hein.journals/lqr133 and id is 75 raw text is:
ACCESSORY LIABILITY AND COMMON UNLAWFUL
PURPOSES
A.P. Simester*
Provost & Chair in Law, National University of Singapore and
Edmund-Davies Professor of Criminal Law, King & College London
I. Introduction
The common law governing so-called joint enterprises has been under stress in
recent years. On occasion, juries have been overly willing to find the existence of
a shared criminal purpose between wrongdoers and their friends, and to find
foresight by those friends of what the wrongdoers might do. A perception of
injustice can only be compounded by the constructive nature of homicide crimes.
Those who neither kill, nor foresee any risk that their colleague may kill, might
yet be eligible for a conviction running even to murder. Many have therefore
welcomed a ruling that joint enterprise liability is no more, at least in England and
Wales. In R. v Jogee; R. v Ruddock,' the Supreme Court joined with the Privy
Council to abolish it. Yet the High Court of Australia demurred when invited in
Miller v The Queen to do the same. So the law of joint enterprise is no longer
common.
Of course, divergence between two of the common law's most senior courts is
hardly unknown, even on fundamental criminal-law questions. The High Court
famously went its own way in the wake of DPP v Smith,' when their Lordships
adopted an objective test of intention. Neither did it endorse Metropolitan Police
Commissioner v Caldwell,' when the House of Lords redefined recklessness.
Strikingly, however, those are decisions that the English courts came to disavow.
Over time, London became realigned with Canberra. Should we hope that the same
will happen again?
II. Two Interconnected Questions
In order to understand the latest divide between our jurisdictions, we need to specify
more precisely what the Supreme Court did in Jogee. Most prominently, the court
abolished what in Australia is called the doctrine of extended joint criminal
I am grateful to Andrew Halpin, Findlay Stark, Bob Sullivan, and the Editor for very helpful comments and
sulgestions.
R. vJogee [2016] UKSC 8; R. v Ruddock [2016] UKPC 7; [2016] 2 W.L.R. 681. For convenience, the joint appeal
will be referred to here as Jogee.
2 Miller v The Queen; Smith v The Queen; Presley v DPP for South Australia [2016] HCA 30 (hereafter cited as
Miller v The Queen).
[1961] A.C. 290; [1960] 3 All E.R. 161 HL; rejected in Parker v The Queen (1963) 111 C.L.R. 610 (reversed on
other grounds (1964) 111 C.L.R. 665). In Parker, the High Court preferred its own precedents, notably Smyth (1957)
98 C.L.R. 163, with Dixon C.J. describing the House ofLords decision as misconceived and wrong. For the first
time, House of Lords decisions were disavowed as binding upon Australian law: see, especially, at 632.
4[1982] A.C. 341; [1981] 1 All E.R. 961. The decision was largely ignored by the High Court of Australia, which
like many jurisdictions continued to prefer a subjective test: see e.g., The Queen v Crabbe (1985) 156 C.L.R. 464
and Royall v The Queen (1991) 172 C.L.R. 378.
(2017) 133 L.Q.R. January C 2016 Thomson Reuters (Professional) UK Limited and Contributors 73](ViewImageLocal?handle=hein.journals/lqr133&div=14&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Already a HeinOnline Subscriber?
profiles profiles most
Accessory Liability and Common Unlawful Purposes
Already a HeinOnline Subscriber?
profiles profiles most
Accessory Liability and Common Unlawful Purposes
Already a HeinOnline Subscriber?
profiles profiles most