A Normative Case for Abolishing the Doctrine of Extended Joint Criminal Enterprise
| Author | Victoria Bo Wang |
| DOI | 10.1177/0022018318822219 |
| Published date | 01 April 2019 |
| Date | 01 April 2019 |
Article
A Normative Case for Abolishing
the Doctrine of Extended Joint
Criminal Enterprise
Victoria Bo Wang
University of Surrey, UK
Abstract
It is submitted in this article that assisting/encouraging is normatively different from and less
harmful and dangerous than perpetration, and that the unfairness and injustice of complicity is
doubled in the context of extended joint criminal enterprise. The defendant’s participation in
the underlying crime is constructed as participation in the collateral crime and such fictitiously
constructed participation is further constructed as actus reus of the collateral crime; and the
defendant’s foresight of the collateral crime is constructed as intention to assist/encourage the
collateral crime and such fictitiously constructed mental state is further constructed as suffi-
cient mens rea for the collateral crime. The double constructive nature of this doctrine cries
out for legal reform, especially in jurisdictions where it is still retained as a sui generis doctrine.
It is proposed that a new lesser offence of risking another’s collateral offending will serve better
the purpose of fair labelling and proportionate punishment.
Keywords
Extended joint criminal enterprise, constructive liability, change of normative position, fair
labelling, proportionate punishment, risk-taking
Introduction
The common law doctrine that a person could be liable for a collateral crime B committed by his or
her confederate if he or she shared a common purpose with that person to do crime A foreseeing
that crime B might be committed in the course of doing crime A is under intensive debate in
recent years. This doctrine is termed as ‘joint enterprise complicity’
1
or ‘parasitic accessorial
Corresponding author:
Victoria Bo Wang, School of Law, University of Surrey, Guildford GU2 7XH, UK.
E-mail: b.wang@surrey.ac.uk
1. R v ABCD [2011]QB 841; R vRahman[2008] 3 WLR 264; Beatrice Krebs, ‘JointCriminal Enterprise’ (2010)73(4) Modern Law
Review578, 592; AP Simester, ‘The Mental Elementin Complicity’ (2006) 122(4) Law Quarterly Review 578, 585–586; Hous e of
Commons, JusticeCommittee, Joint Enterprise,Eleventh Report of Session 2010–12,16, Jeremy Horder’s response to(Q108).
The Journal of Criminal Law
2019, Vol. 83(2) 144–160
ªThe Author(s) 2019
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DOI: 10.1177/0022018318822219
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liability’
2
in England and Wales and ‘extended joint criminal enterprise’ in Australia
3
and Hong
Kong.
4
Under this doctrine, there is no need to prove that D had provided actual assistance or
encouragement to the commission of the collateral crime by P. It was held that D’s liability for the
collateral crime hinged on his or her participation in the underlying crime with a foresight that the
collateral crime might be committed by P in the course of doing the underlying crime.
5
Such a
doctrine could be said to have gained its life after Chan Wing-Siu v The Queen—a 1985 decision of
the Privy Council.
6
This case was then followed by RvPowellandEnglish
7
in England and Wales
as a leading case for joint enterprise complicity, which had been applied thereafter until it was
abolished by the recent case of R v Jogee.
8
Now, it is the law in England and Wales that for an
accessory to be liable for the offences committed by the perpetrator it has to be proved that the
accessory had actually assisted or encouraged the perpetrator intending to assist/encourage the
perpetrator to commit the target crime; and foresight that P might commit the crime is not
sufficient to make D liable for that crime.
9
This reinterpretation of the law of complicity receives
support
10
as well as challenges.
11
The High Court of Australia in its recently decided case Miller v The Queen
12
rejected to follow Rv
Jogee holding that all parties to a joint criminal enterprise should be liable for any collateral crime
committed by a co-venturer that is within the scope of their agreement and that an incidental crime
contemplated by the parties is within the scope of the agreement.
13
The most recent Hong Kong case
involving joint enterprise complicity is HKSAR v Chan Kam-Shing,
14
which reiterated that joint enter-
prise complicity is distinct from standard complicity of assisting/encouraging,
15
and that Chan Wing-Siu
should be followed in Hong Kong. The law governs joint enterprise complicity is no longer common.
16
The divergence among these three influential cases is whether Chan Wing-Siu v The Queen has set the
correct mens rea element to make a participant in a joint criminal enterprise liable for any collateral
crime committed. Likewise, many scholarly works have focused on the mens rea part of complicity
liability providing us very illuminating ideas about whether the law is well principled.
17
However, this
2. R v Gnango [2012] 1 AC 827; JC Smith, ‘Criminal Liability of Accessories: Law and Law Reform’ (1997) 113 Law Quarterly
Review 453, 465.
3. McAuliffe v The Queen [1995] 183 CLR 108; Clayton v The Queen [2006] 168 A Crim R 174.
4. Chan Wing-Siu v The Queen [1985] AC 168; Sze Kwan-Lung v HKSAR [2004] 7 HKAFCR 475.
5. R v Powell and English [1999]1 AC 1, at 2; R v ABCD [2011] QB 845, 849.
6.[1985] AC 168.
7.[1999]1 AC 1.
8.[2016] UKSC 8.
9. R v Jogee [2016] UKSC 8 at [9].
10. Matthew Dyson, ‘Shorn-off Complicity’ (2016) 75(2) Cambridge Law Journal 196, 199; DJ Baker, ‘Lesser Included
Offences, Alternative Offences and Accessorial Liability’ (2016) 80(6) Journal of Criminal Law 446, 449.
11.AP Simester,‘Accessory Liability and Common Unlawful Purposes’(2017) 133 Law QuarterlyReview 73, 86; DJ Baker,
‘Jogee: Jury Directions and the Manslaughter Alternative’ (2017) 1 Criminal Law Review 51, 54; David Ormerod and Karl
Laird, ‘Jogee: Not the End of a Legal Saga but the Start of One?’ (2016) 8 Criminal Law Review 539, 543; Findlay Stark, ‘The
Demise of “Parasitic Accessorial Liability”: Substantive Judicial Reform, not Common Law Housekeeping’ (2016) 75(3)
Cambridge Law Journal 550, 578–9.
12.[2016] HCA 30.
13. Miller v The Queen [2016] HCA 30 at [4].
14.[2016] HKEC 2715.
15. HKSAR v Chan Kam-Shing [2016] HKEC 2715 at [33]–[40].
16.Simester (n 11),73.
17. Simester (n 11); Dyson (n 10); Baker (n 11); Graham Virgo, ‘Joint Enterprise Liability is Dead: Long Live Accessorial
Liability’ (2012) 11 Crimal Law Review 850; GR Sullivan, ‘Doing Without Complicity’ (2012) Journal of Commonwealth
Criminal Law 199; William Wilson and David Ormerod, ‘Simply Harsh to Fairly Simple: Joint Enterprise Reform’ (2015) 1
Criminal Law Review 3; Simester (n 1); Joshua Dressler, ‘Reassessing the Theoretical Underpinnings of Accomplice Liability:
New Solutions to an Old Problem’ (1985) 37(1) The Hastings Law Journal 91.
Wang 145
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