Complicity in Criminal Acitivity

The extension of criminal liability to non-primary offenders is a principle long established in case law and defined in statute as, “aiding, abetting, counselling or procuring.” There are three principles to consider, two at common law and one in statute. These are:
1. Acting in concert or joint criminal enterprise
2. The doctrine of common purpose
3. The aiding, abetting counselling or procuring in the offence

The first two principles were considered at length by the High Court in ‘Osland v The Queen’. Assigning liability to a person who, ‘acts in concert with another’ requires that the offenders have an understanding and arrangement to commit the crime. This doctrine is rather uncontroversial and often describes the vast majority of cases where offenders are accessories or complicit in committing a crime; for example, two robbers acting together to rob a museum each with the understanding of what they are doing.

A more controversial principle is the doctrine of common purpose or extended joint criminal enterprise. Recently abolished in English common law and reconsidered by the High Court, the principle extends liability to offenders who did not commit the primary act. The court was quick in ‘Miller’ to highlight the doctrine does not (as commonly misunderstood) extend liability by mere association, however in application, the precedent does extend liability to those who may not have committed the primary offence so long as they were reckless to the possibility of the offence being committed during the commission of the original crime.

If ‘Jogee’ was a u-turn by our friends across the pond to correct the common law, ‘Miller’ was slight swerve towards greener pastures. On one hand, the principle of extending criminal liability to those whose acts constitute an offence; but intention is merely reckless to the reasonable possibility of the commission of the crime, is one scattered throughout the common law history. However, those who act in joint enterprise for the commission of a crime are complicit for that offence and, therefore, criminal liability already is extended to them. So why, as a doctrine, should they be held liable for the actions of another in committing a different offence during the commission of the original crime even if it was reasonably foreseeable? Perhaps the doctrine should be clarified to extend liability to those who act in common purpose but not those who act with uncommon intent.

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