Unlawfulness’s Doctrinal and Normative Irrelevance to Complicity Liability

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 scenarios 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.