About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

133 L. Q. Rev. 73 (2017)
Accessory Liability and Common Unlawful Purposes

handle is hein.journals/lqr133 and id is 75 raw text is: 


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
   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
   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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most