Unlawfulness’s Doctrinal and Normative Irrelevance to Complicity Liability
| Date | 01 October 2017 |
| Published date | 01 October 2017 |
| DOI | 10.1177/0022018317728832 |
| Subject Matter | Articles |
Article
Unlawfulness’s Doctrinal and
Normative Irrelevance to
Complicity Liability: A Reply
to Simester
Dennis J Baker
University of Surrey, Guildford, UK
Abstract
In this essay I shall try to show that there is normative nor doctrinal foundation for the
extended joint enterprise doctrine. I shall argue that the “unlawfulness” justification that has
been invoked to justify the extended joint enterprise has no doctrinal basis in English law and is
also normatively vacuous. Almost every case concerning common purpose complicity sce-
narios where unlawfulness has been an issue hinge on the doctrine of constructive crime, so I
shall attempt to show that those who are invoking that doctrine of unlawfulness to support
their normative case for extended joint enterprise liability are working from a mistaken
doctrinal premise, because the doctrine of constructive crime in the development of the law of
complicity was limited to homicides, whereas complicity’s doctrine of common intent applied
to all unlawful joint enterprises. Furthermore, it is contended that unlawful agreements
(conspiracies) in themselves do not supply a normative justification for this sort of complicity,
even when the agreement is consummated, because the accessory does not take an equal
normative position in an unintended collateral crime that is merely foreseen as a possibility.
Keywords
complicity, extended joint enterprise, doctrine of constructive crime, unlawfulness
Introduction
The aim of this essay is to show that the judges siting in the majority in Miller vThe Queen
1
(hereinafter
Miller) got the law wrong. I attempt to do this by briefly setting out why I think the decision in RvJogee
2
(hereinafter Jogee) is legally sound. This essay is as much a defence of Jogee as it is a critique of Miller.
Corresponding author:
Dennis J. Baker, University of Surrey, Surrey, GU2 7XH, UK; Wuhan University, Hubei 430072, China.
Email: dennis.baker@surrey.ac.uk
1. [2016] HCA 30.
2. [2016] 2 WLR 681.
The Journal of Criminal Law
2017, Vol. 81(5) 393–416
ªThe Author(s) 2017
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DOI: 10.1177/0022018317728832
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In this essay, I shall also argue that there is no doctrinal foundation for Professor Simester’s claim that
(extended) joint enterprise complicity was an established doctrine of complicity in English and Aus-
tralian law.
3
In addition, I shall argue against Simester’s normative claim that a participant in a joint
enterprise ought to be equally liable for any crimes that are collateral to that enterprise including murder,
even when she has not assisted or encouraged the collateral crime. Simester’s normative claim is that
participation in the underlying enterprise (i.e. participation in a ‘joint’ burglary) is normatively as wrong
as perpetrating the collateral crime per se (i.e. the collateral murder of the burglarised house’s occupant).
In Jogee, the Supreme Court held that the law as stated in RvPowell
4
and Chan Wing-Siu vThe
Queen
5
was based on a mistaken interpretation of the law. Prior to the decision in Jogee, I argued that the
law of complicity in England and Australia ought to be interpreted as follows.
6
1. The mental element in complicity is intention. This may be inferred from evidence of foresight of
virtual certainty. D1 must intend to assist or encourage D2 with the ulterior intention that D2 uses
his or her assistance (or be encouraged by his or her encouragement) to perpetrate the anticipated
target crime. D1 must intend D2 to act with the requisite fault for the target crime.
7
Nonetheless,
in most cases (including murder cases), the jury will not need a Woollin-type direction and will
simply be asked to consider whether the accessory intended the perpetrator to perpetrate the
anticipated target crime.
2. The conduct element for complicity is aid, abet, counsel or procure (i.e. an act of assistance or
encouragement). Hence, nothing short of an act of assistance or encouragement will satisfy the
conduct element for complicity.
8
3. In rare cases, conditional intention may be an issue, but generally it will not raise any issues.
Conditional intention may be inferred from evidence that D1 foresaw that there was a possibility
that a collateral crimemight have to be perpetrated upon some contingency arising duringthe joint
perpetrationof the underlying crime, if there is alsoevidence showing that D1 believedas a matter
of virtual certainty that D2’s response to the contingency would be to perpetrate the anticipated
collateralcrime.
9
(Suppose D1and D2 jointly perpetrate a burglary and both partiesforesee there is
a 20 per cent chancethey might be interruptedby a security guard during the courseof the burglary.
Also supposeD1 believes the virtually certainconsequence of a securityguard approaching them is
that D2 will kill theguard to avoid going back to prison. In such a case, the jury would bedirected
that they are not entitled to find [conditional] intention with respect to the [contingent] collateral
crime, unless theyfeel sure that D1 believed that thevirtual certainty of D1 joining theunderlying
joint enterprise was that D1 would send D2 a message of encouragement with respect to the
collateral crime and that D1 believed as a matter of virtual certainty D2 would perpetrate the
collateral crime upon the need for it to be perpetrated arising.)
10
3. A. P. Simester, ‘Accessory Liability and Common Unlawful Purposes’ (2017) 133(1) LQR 73.
4. [1999] 1 AC 1.
5. [1985] AC 168.
6. D. J. Baker, Reinterpreting Criminal Complicity and Inchoate Participation Offences (Routledge: Oxford, 2016) 77–125. See
also D. J. Baker, ‘Reinterpreting the Mental Element in Criminal Complicity: Change of Normative Position Theory Cannot
Rationalize the Current Law’ (2015) 40 Law & Psychology Review 121, 243 where I argued: ‘The law of common purpose
complicity took a wrong turn, because maxims of evidence such as foresight of probable and possible consequences, not only
mirror substantive criminal law fault elements, but also have been blurred with them for centuries’. (First published on SSRN
as: D. J. Baker, ‘Foresight in Common Purpose Complicity/Joint Enterprise Complicity: It Is a Maxim of Evidence, Not a
Substantive Fault Element’ (10 October 2012) 51. Available at: https://ssrn.com/abstract¼2507529.
7. Ibid. at 1–40.
8. Ibid. at 53–90.
9. Ibid.
10. I have argued elsewhere that Johns vThe Queen (1980) 143 CLR 108 was essentially a conditional intention case concerning
an accessory before the fact.
394 The Journal of Criminal Law 81(5)
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