Accessorial Liability Research Articles

Reevaluating Joint Criminal Enterprise: Legitimacy and Reform in the Wake of R v Jogee

This article examines the legitimacy and rationale of the Joint Criminal Enterprise (JCE) principle in international criminal law, focusing on the implications of the UK Supreme Court's decision in R v Jogee, which fundamentally abolished JCE as a legal principle. JCE, characterized by its complexity and contentious nature, has been criticized for being driven more by policy considerations than legal precedents. The article first explicates the concept and evolution of JCE, including common purpose liability and parasitic accessorial liability, and highlights the irrationalities within these principles. Through an in-depth analysis of the R v Jogee decision, the author argues that the ruling successfully rectified residual errors in criminal law, deeming the abolition of JCE consistent with legal logic and tradition. The article concludes with recommendations for enhancing transparency and clarity in prosecution and sentencing processes to restore public confidence in the criminal justice system. It also underscores the disproportionate negative impact of JCE on minority groups and young offenders, advocating for reforms to mitigate these effects.

Joint enterprise in England and Wales: why problems persist despite legal change

ABSTRACT The law in England and Wales (as in Australia and other jurisdictions) enables a person to be convicted of an offence committed by another using complicity liability, sometimes termed ‘joint enterprise’. In England and Wales, 'joint enterprise' has been widely criticised for: failing to distinguish between the moral and legal culpability of the person who commits the substantive offence and those on the periphery of it; being disproportionality applied in cases involving young men from black and mixed ethnic backgrounds; and for lacking legal legitimacy. Thus, it was hoped that the decision of the Supreme Court in England and Wales in 2016 to abolish the extended form of complicity liability, known as Parasitic Accessorial Liability (PAL), would resolve these issues. Reporting on interviews with police detectives, and prosecution and defence lawyers in England involved in cases of serious youth violence, this paper argues that the problems associated with ‘joint enterprise’ in England and Wales remain, despite the change in the law. This is due to there being only ‘subtle shift’ in practice and a continued reliance on racialised inferences about young men from black and mixed ethnic backgrounds. To reduce problems with disproportionality and improve the fairness of the law related to complicity liability, changes to police and prosecutorial practice are required, alongside meaningful law reform.

Claims against directors of trustee companies—the next frontier?

Abstract Corporate trustees work to (among other things) shield directors from liability as trustees. This article explores whether and how beneficiaries can bring proceedings against errant trustee company directors. It does so in four parts. First, the possibility of direct fiduciary or trustee-like duties is considered. Secondly, the authors address accessory liability for dishonest assistance or knowing receipt. Thirdly, the particular difficulties posed by a director’s diversion of opportunities are explored. Finally, the authors consider developing claims, being the dog-leg claim and a direct duty of care in tort owed by the trustee company director to the beneficiary.

Overwhelming Supervening Acts, Fundamental Differences, and Back Again?

Jogee established that, if the victim was attacked in a manner different to that which the accessory envisioned, the accessory will not be liable for a resulting death, provided the fatal act amounted to ‘some overwhelming supervening act [OSA]… which nobody in the defendant’s shoes could have contemplated might happen and is of such a character as to relegate his acts to history’. Jogee further suggests that OSA has replaced the fundamental difference rule (FDR) which used to keep the foresight test in parasitic accessory liability (PAL) cases in check, by absolving accessories of liability for murder or manslaughter, where the principal had caused the victim’s death with a different and more lethal weapon or in a different and more dangerous manner than had been foreseen by the accessory. In Jogee, the UKSC appreciated this role of the FDR, and therefore, in a misguided attempt to appease the defenders of PAL, abolished it along with PAL. While they left OSA in place in its stead, the judgment is unclear about its scope, role, and function. Since then, OSA has been considered on several occasions by the Court of Appeal. However, there is still no clarity as to when OSA ought to be left to the jury. This paper will explore OSA, its role, scope of application, and relationship with the FDR. It will be argued that OSA is a concept of remoteness which, like the FDR before it, functions as a corrective to constructive liability for accessories to murder and manslaughter. It aims to attribute to the accessory only those consequences of the principal’s acts that are sufficiently linked to the risk that the accessory set or supported by his acts of assistance or encouragement. The paper concludes that, in fleshing out OSA, the courts ought to pay greater attention to this role and purpose, and the principles of fair attribution that underpin it.

Reform of Anglo-American Complicity Law: Conduct, Connectivity and Comparative Solutions

The challenge presented by extant Anglo-American complicity law is that it intractably homogenises different participatory modalities across a broad landscape of culpability, and ultimately the controller/instigatory actor may be treated alike with the ethereal shadow marionette. It is essential to effect change, not only as a concern of appropriate legal substantive reformulation, but also to avoid capricious practical unfairness. It should not be reforms predicated on the illusory distillation of causality requirements, between assistance and encouragement provided by the accessory and direct commission of harm(s), but rather on an imputed-normative-proportionality standardisation, reviewable via evidentiary perspectives in terms of actual intercessory conduct. A critique of alternative legal system approaches to complicitous behaviour, notably the Germanic Criminal Code, provides further significant insights towards the adaptation of a new accessorial liability framework. This broadened template promulgates a synchronous and complementary original review of withdrawal precepts. A redemptive change of heart aligned with appropriate reductive criminal depredation may exculpate via reverse conduct prophylaxis. Only an individual actor who has manifestly interceded in criminal harm(s), adjudged by the jurors as moral arbiters within prescribed gradations of culpability, as addressed herein, should rank imputably in equiparated blameworthiness with the principal offender. If this equiparation is lacking, or if the criminal wrongdoing is characterised as a wholly independent action by another party, then alternative forms of potential secondary party liability must be sought – a de novo facilitation offence as propounded subsequently, and consideration of reverse burden of proof.

Accessory Liability for Hyperlinking under Criminal Law

Link collection site; with case note by Il Ho Lee

The Mental Element in Equitable Accessory Liability

Abstract There has been heated debate over the test of dishonesty since it was first laid down in Royal Brunei Airlines v Tan. This paper argues that the essence of ‘dishonest’ assistance is willing participation in a breach of trust, that is, assistants endorse or accept their causal role in bringing it about. Three implications follow. First, the mental element should be fixed at the minimum level necessary to reflect endorsement rather than varying by the degree of causal contribution to the primary wrong. Second, the test of neither dishonesty nor knowledge fully captures the requisite mental element for endorsement. Third, a test framed in terms of intention and belief concerning the core elements of a breach would better identify the mental element of accessory liability in equity. This reformulated test would add much-needed transparency to mental element determination for equitable accessory liability.

Shared Non-responsibility in International Law? Defences and the Responsibility of Co-perpetrators and Accessories in the Guiding Principles: Afterword

This comment assesses the approach to the reach of defences beyond the international legal person(s) who is (or are) the author(s) of the internationally wrongful act articulated in Guiding Principle 5 of the Guiding Principles on Shared Responsibility in International Law. It will focus on three main points: (1) whether the choice in respect of the reach of defences in Principle 5 is justifiable for the international legal order; (2) the reach of defences in cases of coercion, where the coerced party may benefit from a defence due to the coercion (in the form of a force majeure defence); and (3) the ‘blindspot’ in the Guiding Principles in relation to defences of accessories, in particular where the conditions for accessorial liability are defined broadly as in the case of Principle 6 on aid and assistance.

The New Section 308A and the Law on Accessory Liability

The New Section 308A and the Law on Accessory Liability

English Law of Complicity: Outline and Case Summaries

This paper outlines the English law of criminal complicity using case summaries. The Supreme Court thoroughly reformed this area of law with the 2016 Jogee case, which abolished the doctrine of departure from common purpose. After Jogee, foreseeability of unplanned crimes is no longer sufficient mens rea for accomplice liability. This paper distinguishes joint enterprise from other forms of participation in crime (joint principles and innocent agency). It explains how Jogee transformed the previous law, which was based on the now-repudiated case of Chan Wing-Siu. The new rules on the only remaining form of accessorial liability are clarified: the actus reus (the traditional law on aiding, abetting, counselling, or procuring) and mens rea (intention to assist or encourage the crime and knowledge of “essential matters” making it criminal). Other important points are discussed, including conditional intention, rules on withdrawal from joint enterprise, and the exceptional case of Gnango. It is hoped that the 30 cases summarised here can expand understanding of a difficult area of law. Relevant cases date from 1577 to 2017. Quotations from the cases, including famous judicial pronouncements, are incorporated into the discussion. The outline and case summaries are intended to succinctly and accurately explain the law.

Shared Non-responsibility in International Law? Defences and the Responsibility of Co-perpetrators and Accessories in the Guiding Principles

Abstract This comment assesses the approach to the reach of defences beyond the international legal person(s) who is (or are) the author(s) of the internationally wrongful act articulated in Guiding Principle 5 of the Guiding Principles on Shared Responsibility in International Law. It will focus on three main points: (1) whether the choice in respect of the reach of defences in Principle 5 is justifiable for the international legal order; (2) the reach of defences in cases of coercion, where the coerced party may benefit from a defence due to the coercion (in the form of a force majeure defence); and (3) the ‘blindspot’ in the Guiding Principles in relation to defences of accessories, in particular where the conditions for accessorial liability are defined broadly as in the case of Principle 6 on aid and assistance.

'Primary and Accessory Liability in EU Copyright Law'

In theory, the concepts of primary and accessory liability appear quite distinct. Primary liability results from a direct wrongdoing, whereas accessory liability requires participation in the wrongdoing carried out by somebody else. Until recently, the conventional wisdom was that EU copyright law harmonized primary, but not accessory liability for copyright infringement, only touching upon the latter in its rules on injunctions against intermediaries and through the safe harbors immunizing certain internet intermediaries against liability. In its recent copyright case law, the CJEU has upended these assumptions by taking it upon itself to fashion a harmonized accessory liability regime for copyright out of the exclusive economic rights afforded to the copyright owner. With the adoption of the Directive on Copyright in the Digital Single Market (CDSMD), the EU legislator has further calibrated this harmonization of accessory copyright liability. This chapter tracks this evolution and discusses its consequences for EU copyright law.

A Philosophically Enriched Exegesis of Criminal Accessorial Liability

The central features of the English criminal law’s approach to the liability of principal offender are fairly clear, coherent, and settled. By contrast, the English law of criminal accessorial liability is notoriously lacking in these qualities. In this paper, I attempt to correct this imbalance by developing a philosophically enriched exegesis (and where appropriate, critique) of the English law on criminal accessorial liability, by reference to the structures of responsibility underpinning English criminal law. I take the relatively settled state of the English criminal law of principal liability to suggest that it is a good guide to these underlying structures. Therefore, using these rules (as adjusted for the differences in context between liability as a principal and liability as an accessory) as a template, I evaluate the English law of criminal accessorial liability.

Joint Criminal Confusion: Exploring the Merits and Demerits of Joint Enterprise Liability

In February 2016, the UK Supreme Court fundamentally changed the criminal law principles of accessorial liability when it handed down its decision in R v Jogee. The Court abolished the head of liability known as 'joint criminal enterprise' (JCE) and replaced it with the ordinary principles of aiding and abetting, which it re-stated for this purpose. JCE features prominently in international criminal law (ICL) where it has an equally contentious status. The full implications of Jogee remain at present uncertain, underexplored and divisive. In this chapter, I evaluate the merits and demerits of joint enterprise by comparing JCE in English law and ICL. A cross-jurisdictional analysis of joint enterprise reveals more deeply the role the notion plays in the overall taxonomy of criminal responsibility. There are different concepts of joint enterprise with different theoretical groundings. By not recognising this, past debates of joint enterprise liability have failed to appreciate the concept’s merits alongside complicity liability.

Major court and tribunal decisions in Australia in 2018

The year 2018 saw significant tribunal and court decisions concerning the definition of ‘casual’ for the purposes of the National Employment Standards, the obligations of labour hire employers, and the employment status of food delivery drivers in the gig economy. This review also covers a number of significant changes to awards made by the Fair Work Commission as part of its 4-yearly award review; a Full Federal Court decision about the extent to which a small group of employees genuinely agreed to approve an enterprise agreement. An unusual tribunal decision about an employee who was assumed to have a disability is noted. Finally, the review considers several significant judicial decisions on accessorial liability and penalites under the Fair Work Act.

CHALLENGING CONCEPTIONS OF ACCESSORY LIABILITY IN PRIVATE LAW

AbstractThis article concerns recent challenges to the utility of “accessory liability” as an organising principle or concept in private law and argues that accessory liability is a coherent body of law with common features that is worthy of separate, holistic treatment. We defend a conceptual framework for accessory liability which is dynamic in its operation and which does not dictate the precise legal content of accessory liability in different contexts. Such a conception of accessory liability has come under challenge from recent cases and commentary which either minimise the scope and analytical relevance of accessory liability altogether in equity and tort law or propound a conceptual framework for accessory liability that is fixed in its application and uniform in its content across the whole of private law. Our purpose in this article is to resist both the dismissal, and simplification, of accessory liability in private law.

Joint Enterprise Liability: Recent Developments and Judicial Responses

This article reconsiders the decision in R v Jogee [2016] UKSC 8 and the merits of joint enterprise liability. The article is structured in three sections. First, it outlines the background to the appeal in Jogee and argues that the Supreme Court’s decision is welcome on both normative and jurisprudential grounds. Second, it considers subsequent academic criticism and the approaches taken by the High Court of Australia and Hong Kong Court of Final Appeal. Third, it responds to these differing perspectives and suggests that Jogee has left the law in a more satisfactory state, but that accessorial liability as a whole remains in need of further clarification.

Accessory liability in equity: the case for unconscionability

Accessory liability in equity: the case for unconscionability

The Treatment of Superior Responsibility in Colombia: Interpreting the Agreement Between the Colombian Government and the FARC†

The Colombian Constitutional and Supreme Court’s interpretation of superior responsibility as cases of commission by omission and indirect perpetration excludes most military superiors’ omissions of their duties to prevent, repress and submit subordinates’ international crimes to the competent authorities. Nevertheless, the notion of complicity by omission, as a form of accessorial liability, and the crime of abetting could cover this gap with regard to omissions carried out by military superiors with dolus. Furthermore, although Colombian criminal law does not provide for negligent military superiors’ omissions, the Colombian Armed Forces Operational law attaches disciplinary responsibility to military superiors’ omissions, which are carried out with gross negligence. Moreover, the Peace Agreement of 24 November 2016 between the Colombian Government and the Revolutionary Armed Forces of Colombia – Popular Army (‘the FARC’), explicitly provides for criminal liability for gross negligent omissions of Colombian Security Forces superiors and FARC superiors with regard to subordinates’ international crimes related to the armed conflict. Further, the provisions of the Agreement on superior responsibility of Colombian Security Forces superiors have been subsequently incorporated into the Colombian Constitution by the 4 April 2017 Legislative Act 01/2017 and the provisions relating to FARC superiors were incorporated into Colombian law through the 30 November 2017 Law on the Special Jurisdiction for Peace. Although this approach was upheld by the 24 November 2017 Colombian Constitutional Court (‘CCC’) judgment C-674/2017 and the CCC’s 16 August 2018 public statement, which declared, respectively, the constitutionality of Legislative Act 01/2017 and the Law on the Special Jurisdiction for Peace, this position has come at a high prize because not only have all references to international law been eliminated from the definition of superior responsibility for Colombian Security Forces superiors (they have only been kept in relation to FARC superiors), but several additional requirements have also been added to the definition. The result significantly restricts the scope of application. Last but not least, the notion of superior responsibility for civilian superiors is not yet applicable in Colombia due to the absence of an explicit reference to it under Colombian law and the Colombian Constitutional Court’s ‘distinctive approach’ doctrine.

ACTS OF TORTURE AS AN INSTRUMENT OF GOVERNMENT POLICY IN THE COLONY OF CYPRUS IN THE 1950S AND CHOICE OF LAW

AbstractThis article notes the judgment in Sophocleous v Secretary of State for the Foreign and Commonwealth Office, in which the High Court dealt with the law applicable to civil claims arising out of alleged acts of torture committed by British military and security services in the colony of Cyprus in the 1950s. The judgment is important because it sheds light on some underexplored corners of choice of law (law governing the external aspects of vicarious liability and of accessory liability in tort) and reaches the conclusion, which runs against the grain of other recent judgments given in civil claims brought against the Crown for the external exercise of governmental authority, that English law governs.