Bases and Baselessness in Secondary Liability

Abstract

This paper demonstrates that parasitic accessorial liability (sometimes known as “joint enterprise”) is the erroneous tangent from two strands of common law jurisprudence. The original two strands are (1) liability for aiding, abetting, counselling and procuring, known here as basic accessorial liability and (2) liability for participating in a common illegal purpose, known here as the common purpose rule. The second of these, the common purpose rule, was an extension of the normal accessory liability principles: it was a way to conceive of the parties as committing a series of acts together, rather than as isolated events where one aided, abetted, counselled or procured another. The tangent, (3), was parasitic accessorial liability, a new form of liability, created entirely by the judiciary, particularly from 1966-1985. Here, no aiding, abetting, counselling or procuring was required for further crimes beyond the first (unlike in (1)), nor that the crime was part of a common purpose (as in (2)).Since its conception and slow development in the 1960s, the parasitic accessorial liability tangent has created serious doctrinal and practical difficulties. First, despite some assertions to the contrary, it is indeed a tangent from the historic position of the common law. It is not based on the principles of basic accessorial liability or the common purpose rule; it is clearly a departure from those authorities. To the extent that the rule can be justified it must be justified by arguments not from history, but from theory or practice. Unfortunately, it lacks both. To justify parasitic accessorial liability in theory requires the difficult idea that to foresee a non-negligible risk of another committing a crime is automatically to authorise that risk. Should the risk eventuate, without any physical link to the secondary party, that party is then liable in full for it. There is no lower form of subjective culpability other than strict liability and there is no lower form of physical contribution at all. In practice, parasitic accessorial liability certainly permits convictions for most serious offences where it is hard to prove events, but that is not clearly a good to society.However, the unhappy result of this tangent is even worse than simply having a very wide form of accessorial liability. In the last two decades, the tangent has become dominant: the language and liability rules of “joint enterprise” have taken over almost entirely. Prosecutors by default charge and defendants are then convicted on the basis of a “joint enterprise”, rather than on the basis that the defendant was an accessory, or a party to a common illegal purpose. This new terminology elides all the distinctions the law had good grounds for making. Most troublingly, it has led to a downward shift in the liability for all secondary parties. Traditionally, to be liable in full for the principal’s offence, the secondary party needed to contribute in some minor way to the principal’s crime, knowing of the principal’s purpose to commit that crime or one like it and intending to aid or encourage him. Now, a secondary party need only contribute in some minor way, intending his or her own act, while foreseeing that the principal might commit that crime or one like it. In practice, the narrative presented for accessories is that they were “in it together” and insufficient effort is put into distinguishing between relative contributions and fault.