THE PROBLEM WITH JOINT ENTERPRISE

CIAN Ó CONCUBHAIR

Keywords: Criminal Law, Complicity, Joint Enterprise, Common

Design, Ethics, Chan Wing-Siu v R [1985] 1 AC 168, R v Powell and R

v English [1997] 4 All ER 545

Wordcount total: 12,630 (excluding footnotes)

Abstract:

Joint enterprise is one of the core legal mechanisms for imposing criminal

liability on secondary participants to a crime. This judicially developed

principle of the criminal law has evolved such that the threshold

culpability requirements for joint enterprise murder liability in England

and Wales are lower than that for principal liability murder. In this article,

I examine the case-based development of what is known as the ‘wider

principle’ of joint enterprise, followed by a critique of both its conceptual

and ethical foundations. I will argue that the current structure of this Restorative Justice Researcher, School of Applied Social Science,

University College Dublin.

1

‘wider principle’ of joint enterprise liability for murder in England and

Wales allows for over-criminalisation of secondary participants to crimes,

in that it holds secondary participants to crimes criminally liable for

outcomes for which they may have no causal or moral responsibility.

My Lords, there are more murderers under our law

than there are people who have killed intentionally

… moreover, there is a further group of murderers

too, those who do not intend even grievous bodily

harm but who foresaw that others might kill and yet

participated in the venture.1

Introduction

Not all the assumptions many of us (particularly those of us

not versed in the technical intricacies of criminal intent)

may make about the nature of murder liability hold true. In

particular, the subjective mens rea ingredient of criminal

1 R v Rahman [2008] UKHL 45, per Lord Brown, at [370] (emphasis added).

2

liability does not always require that an accused intended

the consequences of their actions. There are many offences

in the criminal law where an individual may be held liable

for consequences she did not intend, or foresee. Indeed, as

we shall see, the criminal law can also hold an individual

responsible for consequences they did not intend, or cause.

The focus of this article’s analysis is one particular

corner of the general part of the criminal law; often a

highly technical and controversial2 mechanism for imposing

criminal liability – particularly in the case of murder: the

doctrine of joint enterprise.

2 Joint Enterprise has (in part due to the activities of the advocacy

group Joint Enterprise: Not Guilty By Association (JENGbA) (see

http://www.jointenterprise.co/ visited July 15th, 2014)), recently come

under public scrutiny after the BBC One drama Common (first broadcast

at 9pm, Sunday July 6th, 2014) drew national attention to the legal

phenomenon. See also: Mark Lawson, “Are Flaws in our Legal System Best

Examined in Dramas or Documentaries?” http://www.theguardian.com/tv-and-

radio/tvandradioblog/2014/jul/07/common-guilty-by-association-legal-

system-drama-documentaries (visited July 7th, 2014).

3

A joint criminal enterprise is formed when two or more

individuals commit a crime they have agreed upon. The person

who actually commits the physical acts in the crime is the

principal participant (the principal); the person who agrees

to commit the crime, but doesn’t physically commit the act,

is the secondary participant (the secondary). Under the

current approach to joint enterprise, the secondary is

equally liable for all the acts of the principal in pursuit

of the agreed criminal end. This is joint enterprise

simpliciter, or ‘plain vanilla’3 joint enterprise. However,

since the Privy Council decision in Chan Wing-Siu v R,4 the

courts in the United Kingdom have developed the doctrine

significantly beyond this relatively uncontentious

formulation.

3 Brown v The State [2003] UKPC 10, at [13], per Lord Hoffman.

4 [1985] 1 AC 168.

4

The Chan Wing-Siu development, termed the ‘wider principle’5

of joint enterprise, has significantly expanded the scope of

secondary liability for murder under the doctrine of joint

enterprise. It is this ‘wider principle’ that this article

is concerned with.

Section I will outline the case history and judicial

development of joint enterprise, charting the evolution of

the ‘wider principle’ of joint enterprise.

Section II will explore the two competing rationales for the

current formulation of joint enterprise, and will

demonstrate that both possess one key ethical problem: joint

enterprise is a mechanism that imposes constructive criminal

liability.

In Section III, the legitimacy of constructive liability in

offences of primary liability (I will call this ‘traditional

constructive liability’) will be addressed and challenged.

5 ibid, Sir Robin Cook (judgment of the court), 175.

5

This Section will develop the first of two approaches to

determining secondary moral responsibility, and employ it to

critically evaluate joint enterprise liability.

Section IV will examine the wider doctrine of complicity, of

which joint enterprise is a particular species, and its

relationship with causation and morality. This Section will

develop the second approach to determining secondary moral

responsibility.

Section V will attempt to reconcile the conclusions arrived

at in relation to secondary culpability, and employ them to

re-evaluate the case law surrounding joint enterprise.

6

I. The Case Law: Evolution of principle

R v Anderson & Morris6 and ‘plain vanilla’ joint

enterprise

In this successful appeal, the defendant Morris had his

conviction for manslaughter under joint enterprise quashed

by the Court of Criminal Appeal. Morris claimed to have had

no knowledge that the principal Anderson (who was convicted

of murder) had armed himself with a knife prior to his

accompanying Anderson in his search for the deceased. The

evidence indicated that Morris had not taken an active role

in the deadly assault, and had in fact refused to assist

Anderson when requested to do so. The trial judge’s

instructions to the jury directed that even if they accepted

Morris’s claim that he had no knowledge of the knife, they

should convict him of manslaughter.

6 [1966] 2 QB 110.

7

Lord Parker CJ’s judgment for the court, accepted Morris’s

challenge to the trial judge’s directions, and, quashing his

conviction for manslaughter, laid down the following

formulation for joint enterprise liability:

…where two persons embark on a joint enterprise,

each is liable for the acts done in pursuance of that

joint enterprise, that that includes liability for

unusual consequences if they arise from the execution

of the agreed joint enterprise but (and this is the

crux of the matter) that, if one of the adventurers

goes beyond what has been tacitly agreed as part of the common

enterprise, his co-adventurer is not liable for the

consequences of that unauthorised act … it is for the

jury in every case to decide whether what was done

was part of the joint enterprise, or went beyond it

and was in fact an act unauthorised by that joint

enterprise.7

7 R v Anderson & Morris, 118-119 (emphasis added).

8

The Anderson & Morris formulation of joint enterprise is

relatively straightforward: there must be agreement, either

express or tacit (acts not discussed, but were acts that

both parties would reasonably have expected might be

necessary in pursuit of their shared criminal objectives,

and which both parties would have agreed to if discussed),

regarding the type or quality of acts to be employed in

pursuit of their shared criminal end. All secondary parties

will be liable for unusual consequences8 resulting from

authorised acts of the principal, but not liable for acts

going beyond what was agreed. This is the paradigm or ‘plain

vanilla’ case of joint enterprise.

It is useful to note that the focus on knowledge of the

fatal weapon (I will call this aspect of joint enterprise

the ‘knowledge qualification’) complicates, somewhat, what

one might generally understand concepts such as agreement

and authorisation to mean. By placing such significance on

8 Note this is a standard constructive element to a ‘traditional

constructive offence’, examined in Section III.

9

the secondary’s knowledge of the weapon used to kill, the

courts assume the use of that weapon automatically came

within the enterprise, once the secondary was aware of its

presence. In other words, the courts are willing to impose a

secondary’s agreement to the use of the weapon once there

was evidence she knew the principal had it in her

possession.

I suggest the knowledge qualification is a form of constructive

agreement. However this constructive agreement only really

becomes problematic when the ‘wider principle’ emerges.

It is also important to note that at trial, the jury was

directed specifically to question whether the secondary

party had intended grievous bodily harm or death from his

participation in the enterprise. At this stage the doctrine

required equivalent mens rea for secondary parties as for

principals.

10

Chan Wing-Siu v R and the ‘wider principle’ of joint

enterprise

In this Privy Council appeal from Hong Kong, the court

explored authorisation (what acts constituted the agreed

course of action) and foresight (what the secondary foresaw

might be done, as opposed to what she agreed) in joint

enterprise.

The three appellants were convicted of murder when they

forced entry into the deceased’s home, each armed with a

knife, and stabbed him to death. One of the three had stood

guard over the wife of the deceased while the other two

sought out the deceased and confronted him violently.

Sir Robin Cooke set down the ‘wider principle’ of joint

enterprise liability:

11

…whereby a secondary party is criminally liable for

acts by the primary offender of a type which the former

foresees but does not necessarily intend … It meets the case of

a crime foreseen as a possible incident of the

common unlawful enterprise. The criminal culpability lies in

participating in the venture with that foresight.9

The significance of these few lines deserves restating.

Under the ‘wider principle’, a secondary is liable for any

acts of the principal, foreseen by the secondary as a

possibility when the parties agree to commit the intended

crime. Once a secondary foresees such a possibility – no

matter how fleeting; regardless of their attitude to such

acts, or how far removed those acts are from the type of

criminal enterprise being pursued – and the secondary still

continues with the enterprise, they are liable for the

consequences of the foreseen acts.

9 Chan Wing-Siu, 175 (emphasis added).

12

This ‘wider principle’ of joint enterprise allows the courts

to take a foreseen, but possibly unwanted act, and impose

liability for its consequences on the secondary party.

It is important to clarify and emphasise the effect of Chan

Wing-Siu. The ‘wider principle’ is concerned with secondary

liability for a crime of the principal (crime B)10 outside

of the agreed ‘plain vanilla’ joint enterprise (crime A).

The sole justification offered for this expansion is that

the secondary had foreseen crime B as a possibility.

Hard cases

In this part I will examine a number of important examples

where the facts of particular cases raise certain moral

objections to the Chan Wing-Siu principle. Here we begin to

get a sense of how, in certain circumstances, the ‘wider

principle’ may over-criminalise (ie hold criminally

10 The crime A and B distinction is borrowed from Simester, see Section

II, part B below.

13

culpable/liable where the secondary may not be morally

responsible/culpable11) secondary involvement in crimes.

Hui Chi-Ming v R12

In another appeal from Hong Kong to the Privy Council, the

appellant in Hui Chi-Ming was convicted of murder in a

separate trial to the principal and the other secondary

parties to the crime.

11 Note that throughout this article, I distinguish between

legal/criminal culpability (ie criminal liability) and moral

responsibility and culpability. I also distinguish between moral

responsibility and moral culpability, in that I consider moral

culpability to be responsibility with an added fault component – ie and

additional moral taint on the behaviour. This distinction between moral

responsibility and moral culpability will become clearer when I address

the distinction between the moral norms underpinning criminal liability,

and the law of Tort in Section III.

12 [1992] 1 AC 34.

14

The appellant had accompanied the principal, who had armed

himself with a metal bar, and a group of their friends in

searching for an individual who had upset the principal’s

girlfriend. The group mistakenly singled out the wrong man,

whom some of the group restrained, while the principal

assaulted him with the bar. The victim later died from his

injuries. There was no evidence that the appellant had

participated in the restraint or the assault of the victim;

he was merely present during the attack.

The principal was acquitted by a jury of murder, and

convicted of manslaughter. All the secondary parties were

offered plea bargains of manslaughter by the prosecution.

The appellant was the only one to refuse this offer. Only

the appellant was convicted of murder.

The defendant’s argument on appeal was essentially that his

conviction for murder under the Chan Wing-Siu principle was

perverse given the principal’s acquittal for murder. He also

claimed he should be permitted to present evidence of that

15

acquittal, and the prosecutor’s plea offering, to the jury.

The Privy Council spent no time assessing the veracity of

these complaints, and applying the ‘wider principle,’

dismissed the appeal.

There is a strong sense of injustice and systemic absurdity

(with tragic consequences) in circumstances where a non-

active and non-violent participant in a group assault, is

the only one held liable for murder. This case illustrates

how the lack of mens rea equivalence between principal and

secondary under Chan-Wing-Siu can lead to individual cases of

over-criminalisation.

R v Powell and R v English13

These joined appeals were the first opportunity the House of

Lords had to examine the law of joint enterprise as it had

evolved over the preceding thirty-five years.

13 [1997] 4 All ER 545.

16

In Powell, the two appellants along with another man went to

the house of a drug dealer to purchase drugs. One of the

three (the police investigation could not determine who) was

armed with a gun, of which the other two were aware. The

drug dealer was shot and killed. Both were convicted of

murder under joint enterprise.

The House of Lords’ rejection of the appeal turned on the

aforementioned ‘knowledge qualification’, combined with the

‘wider principle’ of joint enterprise. In the following

extracts of some of the individual speeches of the Lords, we

see the first genuine attempt by a court under the doctrine

to tackle and justify the anomalous gap in culpability

between the principal’s acts beyond the agreement, and the

secondary’s participation in the enterprise.

Lord Mustill:

17

Intellectually, there are problems with the concept

of joint enterprise … I agree that the conduct of S

(the secondary) is culpable, although usually at

the lower level than the culpability of the

principal who actually does the deed … [however]

the trial judge needs a clear and comprehensible

statement of a workable principle…’14

Lord Steyn:

The liability is imposed because the secondary party

is assisting in and encouraging a criminal enterprise,

which he is aware might result in the commission of

a greater offence. The liability … is predicated on

his culpability in respect of the greater offence …

It is undoubtedly a lesser form of mens rea.15

14 Powell, n 12 above, 548-549.

15 Powell, n 12 above, 551 (emphasis added).

18

Lord Steyn found the secondary’s legal liability (resulting

from the secondary’s intent or criminal culpability) for crime B,

is based on their participation in the lesser, agreed crime

A with their foresight that crime B might be committed.

Though Lord Steyn noted that while ‘recklessness may suffice

in the case of the secondary party … it does not in the case

of the primary offender…’, he rejected the claim that joint

enterprise is a constructive criminal offence16 (a view I

will challenge in Sections II, III and IV).

The main speech in the judgment by Lord Hutton, with whom

all the Lords agreed, is worthy of note in a couple of

important and distinct respects. Lord Hutton specifically

addressed a hypothetical scenario where a secondary,

foreseeing the possibility that the principal might engage

in certain behaviour, makes known his objections to the use

of a particular type of weapon or criminal act, before they

16 Powell, n 12 above, 551.

19

embark on their criminal enterprise.17 Reviewing the case

history, Lord Hutton concluded that post-Chan Wing-Siu joint

enterprise no longer required the courts to pay lip service

to the requirement of agreement in joint enterprise.

Foresight alone could establish liability for crime B.

Under Chan Wing-Siu, that hypothetical conscientious objector

(to crime B), would still be liable for the consequences of

the principal’s unwanted, yet foreseen actions. Their

objections did not rid them of culpability for what they

foresaw when they embarked upon crime A.

Lord Hutton also expressly endorsed Professor Smith’s

analysis of the nature of culpability in the doctrine

(assistance and encouragement to the enterprise which may

involve the use of the fatal weapon / act).18

Added to this, Lord Hutton offered another rationale behind

17 Powell, n 12 above, 556.

18 Professor Smith’s analysis is examined in Section II.

20

the ‘wider principle’s’ expansive liability:

A further consideration is that, unlike the

principal … the secondary party will not be placed

in the situation in which he suddenly has to decide

whether to shoot or stab the third person with

intent to kill or cause really serious harm … [the

secondary party] should not escape liability for

murder because he, unlike the principal party, is

not suddenly confronted by the security officer so

that he has to decide whether to use the gun or

knife or have the enterprise thwarted and face

arrest…19

Under this ethical rationale, Lord Hutton takes the view

that joining any joint enterprise to commit crime A, with

foresight of the possibility of crime B, results in a

forfeiture of any entitlement to argue they were not

causatively responsible for crime B, and hence not morally

19 Powell, n 12 above, 562.

21

responsible.

This is an interesting moral justification for legal

liability of secondaries under the ‘wider principle’ of

joint enterprise, and one that will be addressed in Sections

III and IV.

22

II. Competing rationalisations

Part A: Professor Smith

Initially, Smith viewed the Chan Wing-Siu ‘wider principle’

quite plainly. A secondary party who foresees the

possibility that the principal might do something beyond

what was agreed as part of the criminal endeavour, but

continues with the intended crime,

…has ‘lent himself’ to the enterprise … [and has

given] assistance and encouragement to [the principal] in

carrying out an enterprise which he knows may

involve … [the greater criminal offence]. This

should be enough and, according to Chan Wing-Siu is

enough.20

20 R v Wakely [1990] Crim LR 119, 121 (emphasis added).

23

This creative rationalisation of criminal culpability under

the ‘wider principle’ is grounded in Smith’s reading of

Section 8 of the Accessories and Abettors Act 186121 which

provides:

Whosoever shall aid, abet, council or procure [ie

assist or encourage]22 the commission of any

indictable offence … shall be liable to be tried,

indicted, and punished as a principal offender.

While having the legitimacy of legislative foundation, this

approach includes an additional component to the joint

enterprise equation, not addressed in any of the case law on

joint enterprise: whether the secondary intends, knows or

even realises (adverts) that her involvement in the venture

would assist or encourage the principal in committing crime

B.21 Hereinafter referred to as the Act. Note, I will refer to the form of

complicity under the Act as simply ‘aiding and abetting.’

22 Smith, ‘Criminal Liability of Accessories: Law and Law Reform’ (1997)

113 LQR 453.

24

In a later refinement23 Smith labels the Chan Wing-Siu

principle as ‘parasitic accessory liability,’ and

superficially resolves the gap in advertence in the Wakely

formulation noted above. Under normal accessorial liability

(aiding and abetting), a secondary is only liable for the

acts of the principal which she ‘intentionally assisted or

encouraged’ the principal to commit.24 Under the Chan Wing-Siu

principle,

… [a secondary] is also liable for a crime which has

been committed by [the principal] which [she] did

not, intend to assist or encourage P to commit,

provided only that she knew that P might do an act

of the kind which resulted in [crime B] while

23 Smith, n 22 above, 454.

24 Note that mere advertence to the possibility you might be assisting

or encouraging is insufficient for liability.

25

committing [crime A] which she did intend to assist

or encourage him to commit.25

Two points are worth noting in relation to this explanation

of Chan Wing-Siu: First, this formulation contains an

unequivocally constructive element.26 This element may

itself also be constructive in another more subtle sense:

‘Parasitic accessory liability’ is certainly

constructive in the ‘traditional’ sense, ie holding the

secondary liable for the (possibly) unforeseen consequences

(the secondary’s actually assisting or encouraging the

principal’s commission of crime B) flowing from her

actions (the secondary’s involvement crime A).

25 Smith, n 22 above, 454 (emphasis original).

26 Indeed, Smith, at 464, recognises this himself: ‘Parasitic Liability

has a savour of ‘constructive crime’. Though he offers no further

analysis or justification for this constructive element.

26

‘Parasitic accessory liability’ is also constructive in

a more unusual sense, in assuming the secondary’s

involvement actually does assist or encourage the

principal in committing crime B. This constructs a

causal connection between the secondary’s actions

(involvement in crime A) and the principal’s actions

(crime B). I call this ‘causative constructivism’.

Secondly, ‘parasitic accessory liability’ downplays the

narrative relevance of the joint agreement to commit the

initial, lesser crime A. As Simester also explains, this

distortion makes the aiding and abetting rationale more

coherent, but at the expense of a clearer segregation of the

two distinct offences. This distortion has the effect – as

evident from consistent judicial inadvertence to the

possible gap in causation – of a theoretical sleight of

hand, by conflating two distinct offences as one.

I suggest this failure to distinguish between the two

offences might be explained by the case history dealing with

27

joint enterprises. All previous examples (Smith was writing

before the Powell judgment) had involved violence in both

crimes A and B. When violence is involved in the agreed

crime, combined with the practical effect of the knowledge

qualification in drawing the use of a known weapon into the

agreement, it can be difficult to separate out crime B on

the basis of degrees of violence.

The two varieties of constructivism in ‘parasitic accessory

liability’ are of central significance to the morally

problematic aspects of the ‘wider principle’, and Professor

Smith offers no justification or rationale for those

constructive aspects of the principle.

Part B: Professor Simester

Simester disagrees27 with Professor Smith’s claim that joint

enterprise is ‘merely a sub-species of assistance and

27 Simester, ‘The Mental Element in Complicity’ (2006) 122 LQR 578.

28

encouragement.’28 In a compelling critique of Smith’s

rationale, Simester explores and identifies the conceptual

and normative distinctions between aiding and abetting, and

joint enterprise.

The fundamental distinction between the two doctrines,

according to Simester, being that joint enterprise involves

two distinct and substantive crimes: Crime A and Crime B.

Whereas aiding and abetting involves one stand-alone crime

by the principal, which the secondary assists or encourages.

The actus reus of aiding and abetting involves a non-criminal

act, that is only criminalised by its connections to the

crime of the principal. In joint enterprise, the secondary

commits a substantive offence (crime A) regardless of

whether the principal deviates from the plan or not.

28 A.P. Simester, J.R. Spencer, G.R. Sullivan and G.J. Virgo, Criminal Law:

Theory and Doctrine (Oxford: Hart, Fourth Edition, 2010), 243.

29

This criminal/non-criminal distinction between the actus reus

of the secondary is also Simester’s key justification for

the varying degrees of culpability in the mens rea required

by each doctrine.

As the secondary’s actus reus (and in one respect, the mens

rea)29 in aiding and abetting is outside the sphere of

criminal liability – ie not an act normally considered

inherently criminal – such a low threshold in culpability

would cast the net too wide and make a variety of innocent

acts criminal, seriously infringing on the freedom of

ordinary, law-abiding individuals. 29 Though not addressed by Simester, there are many principal ‘acts’

that are not of themselves criminal, and are only criminalised by the

accompanying intent. However, in aiding and abetting liability, the

intent of the secondary has three components: first being the intention

to do the act constituting the actus reus (eg selling a knife to the

principal); the second component is that the secondary intends that act

to assist / encourage the principal to commit a crime (that your selling

the knife will help the principal commit their intended crime); the

third component being knowledge of the surrounding circumstances of that

particular crime. See DPP v Egan [1989] IR 681.

30

An illustrative example offered by Simester of the problem

with permitting a reckless knowledge standard of mens rea for

aiding and abetting, would be a salesman in a hardware store

selling a crowbar to an individual he foresees might use it

to break into a house for the purposes of theft. While there

may be a certain degree of moral responsibility here (the

awareness of the saleman of the possibility of wrongdoing

leaving his own involvement morally marked), imposing

liability on the sales assistant for the independent acts of

the principal would be a harsh and unjust expansion of the

sphere of criminal liability, and an inefficient

interference in individual freedom.

According to Simester, the secondary’s lack of control over the

principal in their committing the crime is a pivotal element

militating against holding the secondary responsible for

that crime. It is, after all, the principal who chooses and

affects the crime. ‘The criminal conviction labels [the

secondary] specifically [as an equally culpable offender] …

31

as such the prospect of its imposition should be in [her]

hands.’30 The only morally permissible justification for

holding someone responsible for criminal actions outside

their control is if there exists a high degree of moral

responsibility (ie knowledge) in their causal involvement.

Sufficient knowledge as an accessory under aiding an

abetting, justifying a significant infringement by the

criminal sphere into the freedom of the individual, requires

that the secondary must intend to aid and abet the

principal’s crime, or else know for certain that they are

aiding and abetting. This degree of knowledge regarding the

principal’s crime justifies treating the secondary as if she

were responsible for the crime of the principal.

In the case of joint enterprise, Simester points to the

conceptual inconsistency in the structures of joint

enterprise, and aiding and abetting, and the obvious – yet

ignored – causative constructivism in Smith’s account of the

30 Simester, n 26 above, 581.

32

Chan Wing-Siu development. Smith’s explanation ‘rests on a

legal fiction’ that the principal’s

…forming a common purpose to commit crime A, ipso

facto encourages crime B. This fiction is

contradicted by the facts; it is an unhelpful

distortion, one that obscures the doctrinal and

normative differences between joint enterprise

liability and aiding and abetting.31

Simester justifies the lower threshold of secondary

culpability in joint enterprise liability, for the

incidental offences of the principal, by focusing on the

secondary’s moral responsibility for the agreed criminal enterprise. The

decision by the secondary to enter into a criminal agreement

with others, with the foresight that one of the parties may

do a criminal act outside of the agreed parameters of the

joint enterprise, is sufficiently morally culpable (as

31 Simester, n 26 above, 595.

33

opposed to form of legal liability in criminal culpability)

to hold the secondary liable for the acts of the principal.

But, we are still left with the causatively constructive aspect of

joint enterprise. The secondary may very well have been

involved in crime A, and they may also have foreseen that

the principal might commit crime B. But, unlike the aider

and abettor, they have not necessarily made a causative

contribution to the commission of crime B. Their mere

presence may not have impacted the principal’s decision-

making on the matter. On a purely causative view, they may

not have made any impact on crime B. All that connects them

to crime B is their foresight of its possibility. In this

regard, the secondary may have a causal and foresight

connection to crime B equivalent to a third party not

participating in crime A.

Simester fails to recognise this constructive aspect of his

formulation. He does, however, attempt to ethically buttress

his rationale of the ‘wider principle’ by focusing on the

34

group offending aspect of joint enterprise, similar to the

‘crime control’ rationale of the courts.32 The secondary

…associates herself with the conduct of the other

members of the group in a way that the mere aider

and abettor [does not] … [J]oint enterprise is

grounded in affiliation. S [the secondary] voluntarily

subscribes to a cooperative endeavour … joint

enterprise doctrines impose a form of collective

responsibility predicated on membership of the unlawful

concert.33

According to Simester, the law can justifiably hold her

responsible for the foreseen crime B, because by ‘entering

into a joint enterprise, [she] changes her normative

position.’34

32 See dicta of Lord Steyn in Powell, n 12 above, 551.

33 Simester, n 26 above, 599 (emphasis added).

34 ibid, 598 (emphasis added).

35

36

III. Foresight and Responsibility in

Constructive Criminal Liability

This section focuses on the ‘traditional’ constructive

criminal offence; a mechanism for imposing criminal

liability that is distinct from, yet related to the ‘wider

principle’ of joint enterprise. The purpose of this

exploration is to employ the criminal law’s views on

responsibility (ie criminal liability)35 to deconstruct and

test the nature of moral responsibility and moral

culpability, and evaluate the relevance of foresight in both

principal and secondary moral responsibility.

This process will attempt to offer insights into the

subjective principle of criminal liability, and how that

principle operates in the realm of secondary criminal

liability. This will allow us to critically evaluate the

35 And, assuming the criminal law reflects a common or shared view of

our ethical universe, the community’s view on moral responsibility

37

constructive elements within both traditional constructive

liability and the ‘wider principle’ of joint enterprise.

There is a significant structural difference between

traditional constructive liability (holding a principal

liable for consequences not foreseen) and the ‘wider

principle’ of joint enterprise: the secondary under the

‘wider principle’ has foresight (foresight of acts, not

consequences). Here I will show that foresight in the

context of secondary parties is not, in and of itself,

determinative of moral responsibility or culpability.

Confusing foresight with responsibility is the mistake Lord

Steyn made in Powell, when he asserted the secondary’s

foresight of the possibility of crime B, defeated any claim

that the ‘wider principle’ was a constructive crime.36

Traditional constructive criminal offences impose liability

on agents for consequences they did not intend or foresee,

but for which they are causatively responsible. Unlike joint

36 Powell, n 12 above, 551.

38

enterprise, the constructive element in these offences

relates to the absence of (or apathy as to whether there is

any)37 advertence in relation to certain consequences. The

most commonly cited (by the academics writing in this field)

constructive offences are unlawful act manslaughter (where

death results from an act with intent equal to basic

assault) and dangerous driving causing death.38 Murder also,

37 This is an important point that should be emphasised. Conviction

under a crime of traditional constructive liability does not necessarily

mean the principal did not advert to the consequences of their actions,

but that the prosecution does not have to prove advertence. When I use

language such as ‘absence of foresight/knowledge etc…’ it should be read

to include this qualification. This article is a critique of the

structure of constructive offences, not an attempt to show certain

defendants are or were innocent of the crimes they were held liable for.

38 Strict and absolute liability offences are also constructive, but

unlike the type of constructive offences discussed here, they do not

require a threshold level of advertence in their actions. With these

types of constructive offences, there is no mens rea requirement at the

gateway to criminal liability. As a result, the ‘change of normative

position’ argument addressed below cannot be employed to rationalise the

moral legitimacy of either type of offence.

39

and controversially,39 contains a constructive element in

holding a principal liable for death where she may not have

foreseen death as a consequence.40

Part A: Culpability and subjective criminal

liability: Change of normative position

39 For discussions on reforming the structure of the offence of murder

see Ashworth and Mitchell, Rethinking English Homicide Law (Oxford: Oxford

University Press, 2000).

40 While the construction or ‘gap’ between moral culpability (moral

responsibility in which the responsible agent is at fault), for serious

assault / grievous bodily harm and death is arguable quite small, the

profound significance of this limited level of construction lies in the

status of the ‘murderer’ label in the popular moral imagination,

combined with the mandatory minimum life sentence upon conviction.

40

In his essay ‘Rationality and the Rule of Law in Offences

Against the Person’41 Gardner defends42 the constructive

element of Section 47 of the Offences Against the Person Act

1861 (‘assault occasioning actual bodily harm’, where a

principal commits a basic assault, without foresight that it

may result in physical injury, but is held liable as if she

had intended or foreseen that injury).

By committing an assault, one changes one’s own normative

position, so that certain adverse consequences and

circumstances which would not have counted against41 Gardner, ‘Rationality and the Rule of Law in Offences Against the

Person’, in his Offences and Defences: Selected Essays in the Philosophy of Criminal Law

(Oxford: Oxford University Press, 2007), 33.

42 Despite language that is expressly supportive of the principle of

constructive liability in ‘Rationality and the Rule of Law in Offences

Against the Person’, in his Reply to Critics (replying specifically to Andrew

Ashworth’s criticisms), at 246-247, Gardner tells us ‘I didn’t really

mean to justify anything. I only meant to analyse the law’s own moral

outlook.’ For the purposes of this Section, I will take Gardner’s

initial (and unequivocal) claims at face value, and attribute his

reasoning to his own moral outlook.

41

one but for one’s original assault now count against

one automatically, and add to one’s crime.43

This concept of ‘changing one’s normative position’ is also

Simester’s core rationale in Section II to justify

constructive liability under the Chan Wing-Siu ‘wider

principle’.

In the context of criminal law, ‘change of normative

position’ means crossing the threshold into the sphere of

criminal liability. Like Simester, Gardner’s rationale

contains subjective fault requirements at the gateway of

liability – ie you consciously decide to enter the realm of

criminal liability44 – after which the ordinary legal

limitations on liability for criminal fault lose their moral

force – subjectivist critiques lose their moral traction.

43 ibid (emphasis added).

44 Assuming, as the law does, that all individuals are aware of the

nuances of the criminal code.

42

Because you have chosen to deviate from the norms of society

by your conscious criminal (and, we assume, immoral)

behaviour, you are not deserving of the protections the

countervailing subjectivist limitations normally place on

liability. According to Gardner, those limitations on

liability, provided for under the morality of the

subjectivist principle, are only designed for use by those

consciously trying to stay outside the criminal law.

Let us examine these subjectivist, countervailing moral

limitations on liability.

Subjectivism and moral distance

Gardner argues that the initial fault in intentionally

breaking the criminal law results in some forfeiture of the

normal ‘protections’ afforded to those entering the sphere

of criminal liability, under the traditional criminal law

principle of actus non facit reum nisi mens sit rea.45

45 Gardner, n 39 above, 41.

43

This core subjectivist principle – that there is no guilty

act without a guilty mind – is, according to Gardner at

least, relatively thin. Once there is some subjective fault

requirement (ie actual advertence of some harmful

consequences from one’s conduct that would be regarded as

criminal), this foundational principle of the criminal law

(which, we must also assume, reflects some particular moral

view of responsibility and culpability) is satisfied.

Let us begin our analysis with Ashworth’s competing

formulation of the subjectivist principle:

…a person should not be held criminally liable

unless he either intentionally or recklessly caused any events or

consequences specified in the definition of the

offence … the principle thus ensures that an

individual is not liable to criminal conviction

unless he chose to commit the offence ... the element

44

of choice justifies the law in holding him liable to

punishment.46

In an early criticism of constructive liability, Ashworth

noted the Criminal Law Revision Committee’s declaration that

‘the offender’s fault falls too far short of the unlucky

result’ and argued ‘constructive liability is clearly

regarded as unjust even though some subjective element is

required to correspond47 with the actus reus … nothing less

46 Ashworth, ‘The Elasticity of Mens Rea’, (emphasis added) in Tapper,

Crime, Proof and Punishment: Essays in Memory of Sir Rupert Cross (London:

Butterworths, 1981), 50.

47 Ashworth is also known for (and criticised for, see Gardner, n 39

above, 40; and Horder, ‘A Critique of the Correspondence Principle in

Criminal Law’ [1995] Crim LR 759) his support for the ‘correspondence

principle’ (Ashworth, Principles of Criminal Law (Oxford, Clarendon Press, 1st

Edition, 1991), 129-130) that limits criminal liability to consequences

intended, not just foreseen. This approach reasons that only the most

morally culpable (intentional) wrongdoing deserves the label criminal. I

am not attempting to adopt or defend this particular approach to

subjectivism. This essay takes a weaker subjectivist approach in

accepting recklessness as a valid form of intent and moral

45

should suffice.’48 Ashworth describes this as the ‘moral

distance’49 between what Ashworth asserts is the actual

moral culpability, and the asserted criminal liability in

constructive offences.

Here we in fact have two competing claims from Gardner and

Ashworth not just about the nature of subjectivist criminal

liability, but also of moral culpability for consequences:

Ashworth claims that moral responsibility for consequences

requires advertence of those consequences. Gardner claims

(or, as he later tells us, the criminal law claims) that one

can be morally culpable for consequences one did not

foresee, once some wrongful outcomes were foreseen as a

possible consequence of one’s actions.

responsibility to ground criminal liability.

48 ibid, 52.

49 Ashworth, ‘A Change Of Normative Position’ (2008) 11 New Crim Law Review

232, 249; ‘Should Strict Criminal Liability Be Removed From All

Imprisonable Offences ?’ (2010) 45 Irish Jurist 1, 14.

46

Determining Culpability: Risks, Control, and Moral

Luck

The consequences of one’s acts do not always turn

out in the way anticipated … Some may turn out

surprisingly well, others may have unforeseen

adverse consequences. To the author of the

behaviour, these myriad contingencies can be

regarded as ‘luck.’ They are the unpredictable

elements in human affairs, matters which lie outside

one’s knowledge and control.50

Ashworth claims that subjectivist morality excludes (or

ought to) criminal liability for harms that are in the realm

of ‘outcome-luck.’ However Gardner suggests when we

consciously engage in basic levels of criminal conduct, we

run the risk of committing harms concurrent with more serious

50 Ashworth, ‘Taking the Consequences’ (emphasis added) in Shute,

Gardner and Horder, Action and Value in Criminal Law (Oxford: Clarendon Press

1993), 107.

47

criminal offences, and as a result of this risk-taking, we can

justifiably be held liable for more serious offences we had

not foreseen.

Committing a certain crime, eg assault or dangerous

driving, may always carry the risk of harm, or other

primary risks. But in a constructive liability

context, it also exposes one to secondary risks,

risks of additional liability, which one would not

have faced but for one’s commission of the original

crime. Under section 47, those who commit the crime

of assault take the risk, not only that it will

occasion harm (the primary risk), but also that, if

it does, they will have committed a more serious

crime (the secondary risk).51

What kind of risk-taking is Gardner’s ‘secondary’ risk-

taking? Clearly it is not subjective risk-taking. But is it

objective risk-taking in the sense that it is a risk that

51 Gardner, n 39 above, 40 (emphasis added).

48

would be obvious to the ordinary reasonable person? It does

not appear so. In the above quote, Gardner uses a ‘but for’

or factual causation analysis.

Yet criminal (or, for that matter, tort or contract)

causation analysis doesn’t end there. Guided by certain

conceptions of morality, the law places limits52 on our52 Note that in determining negligence liability, the law in this

jurisdiction, and elsewhere, also takes into consideration factors such

as the social utility of the conduct in question (or the cost of

preventing it), when assessing both the moral responsibility (for an

outstanding discussion of the moral contours of specific types of Common

Law Torts, see Dorfman, ‘Can Tort Law Be Moral?’ (2010) 23(2) Ratio Juris

205) and legal liability for that conduct. However, these considerations

only take place after the behaviour has been established as risky. In

other words, as the conduct would be considered risky if it didn’t serve

that desirable purpose, social utility arguments act as justificatory

defences against liability (and also mitigates or negates moral

culpability) after the conduct has been determined to ‘fit’ the

definition of risky. This is also an important way of understanding the

distinction between definitional morality in formulating general

criminal law principles – which the law uses a rational actor theory of

responsibility to construct – and other countervailing considerations

49

legal liability for that which we have factually caused.

Why? I suggest the answer lies in the relevance of luck in

moral reasoning.

Luck may always play a role when we take risks, but not all

luck-dependent outcomes result from risk-taking. For

example, if an acquaintance bets her house on a single game

of roulette. If she wins we would normally say that she wasthat may come into play in determining moral responsibility and criminal

liability, such as individual socio-economic or psychological factors,

that may also absolve or militate against culpability/liability in

particular cases. This article implicitly employs a rational actor

critique, as it is concerned with definitional morality in the

formulation of criminal law principles. I accept the general consensus

that it is legitimate to use a rational actor when formulating general

criminal law definitions for substantive offences, but this should not

be taken to mean that I also believe a rational actor theory of

responsibility should be used to formulate justificatory or excusatory

defences. I believe that determining culpability/liability requires two

stages: The first being the definitional stage, ie whether the conduct

and intent fit the definition of the wrong/crime (using rational actor

theory); the second stage being the defence stage, which can employ

other competing and diverse moral considerations.

50

lucky, if she loses we say she has taken a foolish risk

(which she realised, or ought to have). But if she places

the deeds to her house in a bank vault for safekeeping, and

the bank is destroyed in an accidental fire, we would

normally say she was unlucky. In this circumstance we would

not normally say she took a risk as ‘but for’ her placing

the deeds in the bank vault, she would still have proof of

ownership of her home, that it unless some surrounding

information, available to her, suggested there was a good

chance the bank could be destroyed by a fire.

I argue that we only take risks when those risks are obvious

to ourselves or to those around us. There can therefore be

no such thing as ‘secondary risk-taking’. All other

consequences should be seen as the fortunes or misfortunes

of luck. Gardner’s reliance on normatively neutral ‘but for’

causation analysis undermines his normative claims regarding

the presence of risk justifying constructive liability.

51

In response to this Gardner might return to the ‘change of

normative position’ line of reasoning. By engaging in

initially culpable conduct, you should have been aware that

there was a risk of greater harm. You should not be saved

from liability just because the risk wasn’t obvious. These

norms are placed within the criminal law because they cause

harm. If you are willing to cause some harm, lack of

foresight should not mitigate your fault. You are the one

who is at fault in this series of consequences. All the

fault is yours.

This is a very tempting argument. But below I will suggest

it ignores the purpose of the criminal law, which is not to

criminalise misfortune.

To recap: from a subjectivist perspective, one’s ‘moral

guilt ought to depend on the choices [one makes] (which are

sufficiently within their control) not on outcomes (which

are not).’53 From the perspective of objectivism (Gardner’s

53 Ashworth, n 47 above, 110.

52

‘wider’ objectivists who include unforeseeable

consequences), all consequences ought to be taken into

account for moral blame, once that initial culpable

threshold is crossed.

Let us see how these arguments play out in practice.

Ashworth tells us ‘…the only element of action which lies

within the agent’s control is trying, the doing of all acts

which the agent reasonably believes necessary to achieve the

desired end.’54 The trying is the most morally significant

step.

Applying this idea of control, murder and attempted murder

are the same actions in moral terms. Both involve the

principal trying to kill. This is what the agent is

responsible for, ‘whereas what happens in the physical world

thereafter may be affected by other forces and

circumstances.’55 Both the murderer and the attempted

54 ibid, 108 (emphasis added).

55 ibid, 109.

53

murderer are equally morally culpable; the consequences are

morally irrelevant for their culpability, they are only

relevant to the victim and society.56

Duff57 who, like Gardner, advocates the consideration of

consequences in determining moral culpability, argues that

there is a practical moral difference in the case of the

attempted murderer in that they would not have the death on

their conscience, and can go on to make the world a better

place. While this reasoning may have some merit in the

context of punishment, I reject this type of conquentialist

approach to determining the morality of specific behaviour

(see discussion of ‘definitional morality’, n 51 above).

While some acts (ie trying) are wrong only because of their

consequences – such advertent risk-taking, where the wrong

56 Society will have an interest in the attempt failing; there will be

one less murder in the community. But society should not be any less

revulsed by the attempter’s actions merely because she failed to succeed

due to bad luck (from the attempter’s perspective).

57 Duff, Intention, Agency and Criminal Liability (Oxford: Basil Blackwell, 1990),

at 184-192 (reference from Ashworth, n 47 above, his n 20).

54

only materialises from the reckless conduct when the

consequences are harmful – some acts are inherently morally

wrong, such as intending the harmful consequences. I argue

murder is inherently wrong because the responsible agent is

intending to kill.58 This may not reflect the structure of

the offence, but this is undoubtedly a popular understanding

of the significance and stigma of murder liability (see

Section on Fair and Representative Labelling below).

I suggest that adopting Duff’s approach to determining

culpability for murder could (and in practice does)59 in

fact result in an illegitimate mitigation of culpability on

the basis of luck. It might equally be argued against Duff’s

58 Remember n 52 above; this approach to intentional killing is

concerned with defining the morality of that conduct. Defences that

negate or minimise moral culpability come in at the next stage of moral

reasoning.

59 See People (DPP) v Larkin [2008] IECCA 138, where a court found an

unsuccessful attempt at murder was not deserving of equivalent

punishment to a murder conviction, because they were less culpable than a

successful murderer.

55

speculative and somewhat tenuous approach to moral

reasoning, in the case of someone successfully and correctly

convicted of murder, that having a death on their

conscience, and internalising the entirety of their

wrongdoing, might be a greater encouragement for them to go

on to make the world a better place, than someone who avoids

the full formal criminal censure of a murder conviction,

because their intended victim got lucky.

Returning to traditional constructive liability, the above

analysis allows us to conceptualise the possible ‘moral

distance’ between what the actor is trying to do, and the

consequences of their actions. The actor is only morally

responsible in what they are trying to do (that which is

within their control) and for risks they are aware of (their

knowledge) in their actions. All other consequences are in a

realm of outcome-luck, beyond moral culpability.

Relevance of foresight to Chan Wing-Siu liability

56

Superficially, as Lord Steyn concluded in Powell, it appears

that the primary moral qualm with traditional constructive

liability – the absence of advertence – is satisfied in the

Chan Wing-Siu principle of joint enterprise. The secondary

party foresees as a possibility that the principal might

commit the greater crime B. But the above section has

explained why advertence is morally significant in

constructive liability, and these claims can also be applied

to joint enterprise.

While the secondary in a joint enterprise may have foresight

that the principal might commit crime B, crime B is not part

of what the group effort is trying to do. By entering into

the agreement, regardless of who commits the relevant acts,

I suggest the secondary has licensed their control of their

culpability to the principal in committing the acts in crime

A alone.

57

Unlike the principal with foresight of consequences, the

acts affecting foreseen consequences are outside the

secondary’s control; their occurrence is within the realm of

luck – afterall, the principal may not commit crime B. This

subtle distinction of the role of control in a joint

enterprise begins to show us how mere foresight of crime B

by a secondary is insufficient to ground subjective

culpability for crime B.

The effect of Chan Wing-Siu is to automatically impose

culpability for crime B on a secondary with foresight. This

is another constructive aspect of the doctrine and will be

examined in greater detail in Section IV. But for now we can

simply say that unlike foresight of consequences for

principal actors, secondary foresight is not enough to

impose culpability, nor liability for unintended

consequences. Something more is needed.

Relevance of risk and causation in Chan Wing-Siu

58

In traditional constructive offences the acts are within the

control of the actor, but the unforeseen and unusual

consequences are not. In the case of Chan Wing-Siu liability,

neither the acts nor the consequences of crime B are within

the control of the secondary. My suggestion is that the

secondary’s moral responsibility is governed by the normative

limits of the joint agreement, ie restricted to their lending their

support to crime A.

Of central importance is the reality that the secondary

participant is not causatively responsible for crime B. The analysis of

risk and advertence above is founded upon the presumption

that the agent is causatively responsible for the

consequences. We employed risk and advertence analysis to

derive what the agent is morally responsible for, within

what they were causatively responsible for.

But, if one is not causatively responsible for those

consequences, in that the consequences did not flow from

one’s actions, how can one be said to have risked them in

59

one’s actions? The secondary participant’s actions are

directed solely towards crime A. Crime B results from an

unauthorised act by an autonomous agent. There is no causal,

or I argue morally culpable (at least not an automatically

culpable), connection between crime A and B other than the

principal was part of crime A.

One cannot risk consequences that do not flow from one’s

actions. Secondary culpability cannot rest solely on

foresight. It requires either causation or authorisation.

A response to this might be that crime B would not have been

committed were it not for crime A. The proximity between

crimes A and B is such that they must be causatively

connected. Section IV will examine this challenge in detail.

Part B: other values relevant in limiting criminal

liability

60

Just deserts: the limits of causative morality and

the purpose of the criminal law

Honoré argues that the popular moral imagination judges

people on the circumstances they find themselves in, and the

consequences that flow from those circumstances.60 In tort

law, for instance, while someone may not be deemed to have

breached their duty of care, under certain doctrines they

are still required to compensate for damage they are

causatively responsible for. Gardner, in using ‘but for’

causation analysis to defend constructive liability in his

“change of normative position” rationale, endorses a similar

approach to causation and moral responsibility leading to

criminal liability.

Criminal Liability/Tort Liability: A Question of

Accountability

My contention, however, is that this approach confuses a

60 Honoré, ‘Responsibility and Luck’ (1988) 104 LQR 530, 540.

61

fundamental distinction between the two areas of law:

criminal law and the law of tort embody very different moral

norms, and different forms of moral responsibility. By

exploring these ethical differences between the two areas of

law may provide another way of understanding and

characterising this dispute about the nature and extent of

contemporary subjectivism in criminal liability; an

understanding demonstrable by exploring these philosophical

differences between the criminal law and the law of tort,

and the forms of moral accountability provided for by these

different legal mechanisms of accountability.

Tort Law

One compelling (given common popular understanding of Tort

litigation) rationale for Tort law is that it is the law of

compensation; compensation for wrongs. But why have a law of

62

compensation for wrongs? Why compensate for any wrongs at

all?

Gardner,61 rejecting some functionalist claims that Tort law

is really just about compensation and deterrence (why,

equally, should we deter any wrongs?), builds on the work of

Coleman62 and Weinrib63 and makes the more conceptually rich

claim that Tort law is corrective justice between parties.64

So what is corrective justice? The moral norm of corrective

justice, which is both crystallised and constituted, in

61 John Gardner, “What is Tort Law For? Part 1. The Place of Corrective

Justice” (2011) 30 Law and Philosophy 1 (Hereinafter What is Tort Law

For?).

62 Jules Coleman, The Practice of Principle (Oxford: Oxford University Press,

2001).

63 Ernest Weinrib, The Idea of Private Law (Cambridge, MA: Harvard University

Press, 1995).

64 What is Tort Law For?, at 1.

63

certain respects, by the law of torts, is about “reparation

for wrongfully occasioned losses.”65

I would broaden this definition of corrective justice

slightly to “reparation for wrongfully occassioned harms”,

as losses alone ties the moral norm of corrective justice to

the economic biases of Tort law. I will add to this the

suggestion that along with crystallising and constituting

the moral norm of corrective justice, Tort law is also a

legal mechanism providing for the need for moral

accountability66 for damage suffered by the victim of the

damage. When someone suffers harm, the moral norm of

accountability underpins the victim’s right to have that

65 “What is Tort Law For?”, at 17-18.

66 For a more sophisticated explanation of the concept of moral

accountability, see Stephen Darwall, The Second-Person Standpoint: Morality,

Respect, and Accountability (Cambridge: Harvard University Press, 2006), or in

more digestible form: “Stephen Darwall on Moral Accountability”,

Philosophy Bites http://philosophybites.com/2014/03/stephen-darwall-on-

moral-accountability.html (last accessed 14 September 2014).

64

harm recognised by the perpetrator, and for some sort of

remedial response from the perpetrator (this can be as

little as recognition of the harm, or an apology).

Tort law both identifies the corrective justice wrong

between the parties (ie the damage), and establishes a

distinct normative relationship between the person

responsible for the harm – the tortfeasor – and the person

who suffered the harm. This normative relationship involves

the moral norms of corrective justice and accountability

requiring the tortfeasor to make good the harm they caused

to the victim of the harm.

I argue the moral norms of corrective justice and

accountability – unlike the typical common law approach to

tort law – do not require either subjective or objective

tests to demonstrate that there is a corrective justice

wrong in question. All these moral norms require is for

damage to have been caused by someone’s actions (or,

controversially for the common law, inactions).

65

Additionally, these moral norms would not necessarily

prescribe damages as the sole remedial response.

For a variety of historical, ideological and economic

reasons beyond the scope of this article, the law of tort in

common law jurisdictions has evolved to focus on a

particular range of harms (aside from a handful of strict

liability-type torts, such as that in the rule of Rylands v

Fletcher67 – courts have tended to employ objective standards

in negligence analysis68 to determine the actionability and

recoverability of a harm), with the virtually exclusive

remedial response to that harm of money damages.

However, for the purposes of this section, it is important

to remember that the moral norms underpinning the law of

tort – corrective justice & accountability – don’t require67 [1868] UKHL 1

68 See generally Tort causation analysis: Overseas Tankship (UK) Ltd v Morts Dock

and Engineering Co Ltd or "Wagon Mound (No. 1)" [1961] UKPC 1; Tort Duty of Care

(Responsibility/Liability) Analysis: Donoghue v Stevenson [1932] UKHL 100 &

Caparo Industries plc v Dickman [1990] UKHL 2

66

subjective or objective intent/awareness/knowledge in order

for the harm to be held to account. These moral norms may

look at the harm in its entirety – and permit dynamic

remedial responses to that harm by the perpetrator (an

example of such dynamic responses to corrective justice

wrongs are seen in some contemporary approaches to

Restorative Justice). Most significantly, this understaning

of the nature of corrective justice allows us to see the

distinction between the moral marks of responsibility and

culpability on someone’s conduct. You may be held morally

responsible for harms caused, and held to account for it,

whether or not you possessed an objective or subjective

degree of culpability.

Criminal Law

What then is the criminal law for? This is a far more

controversial, and admittedly philosophically difficult

question to answer. Certainly, it is a system of rules

designed to guide and regulate human behavior – like the

67

rest of the legal system. Four basic, and often conflicting,

norms are often proposed to justify the legitimacy of

punishment after criminal conviction: retribution,

rehabilitation, deterrence and incapacitation/protection.

But, these norms underpinning criminal punishment are not

particularly helpful in coherently explaining why certain

types of harmful conduct are criminalised, while others are

not.

Luckily, especially given the difficulty, contentiousness

and ideological sensitivity of the question, it is not

necessary here to explore or challenge claims about what the

criminal law is really about – what I am interested in is

what the criminal law is not about.

In most common law jurisdictions, the criminal law is not a

form of accountability that is personal to the victim of the

actions in question. Unlike the law of Tort (and its

underlying moral norms) which gives a personal right to the

victim of the harm to hold the perpetrator of the harm to

68

account, contemporary criminal justice systems in common law

countries involve the state holding an offender to account

for a breach of the criminal law. The role of the victim, if

they have a role, is that of a witness to the state in the

prosecution of the alleged wrongdoer. While the criminal law

and the law of tort can both be used to hold individuals to

account for their actions – this difference between personal

and impersonal (as the state’s approach in the criminal

justice system is claimed to be impartial and objective)

accountability is where they diverge.

Moral Responsibility & Accountability

We can now say a few things about responsibility after this

brief analysis of tort law and criminal law. First, you can

be morally responsible (and held accountable) without being

culpable, as corrective justice can require someone

responsible for harm (though they may not have intended or

foreseen the possibility of that harm), to be accountable to

the victim to that harm. Second, when we are discussing

69

questions of moral responsibility, we must ask which moral

norms are we talking about.

Corrective justice is personal to the victim of harm, and,

potentially, has no limit to the extent of wrongfully

occassioned harm for which the perpetrator is held

accountable, though the law of tort places limits on

liability. The type of accountability constituted in the

criminal law is motivated by a range of diverse, disputed

and competing moral norms – making the discussion around the

kind of moral responsibility in question very difficult.

When Gardner and others cite the approach to liability in

other areas of the law, namely causation analysis in tort

law, they miss this fundamental distinction between the

kinds of moral norms that underpin the two areas of law.

In short, by looking to the law of Tort to make a moral

defense of the criminal law’s use of “but for” causation

analysis in determining criminal culpability, Gardner misses

the difference between the moral norms underpinning these

70

two forms of legal accountability.

The Proper Use of Coercive State Power

So why does any of this matter?

A common feature throughout the procedural components of the

criminal law, and reflected in these debates about the

nature of subjectivism in the criminal law, is a powerful

concern over the proper use of state coercive power. The

rules and procedures surrounding police powers of arrest and

detention, along with the rules of evidence in criminal

trials are all designed to ensure that if the unparalleled

power of the state to detain, try, label and coercively

confine (as punishment) its citizens (and others) is used,

it is used against the right individual, and for the right

reasons. This is a morally charged question about the proper

use of state coercive power.

If we accept this general rationale for these rules of

71

criminal procedure and evidence, we are entitled then to ask

whether the criminal law is properly applying the label of

murderer to an individual.

I argue that a core component of the legitimacy behind state

use of coercive force through the criminal law is based on

the need for moral culpability in the behaviour of an actor,

before they are held criminally liable. When the offence in

question is murder, this test for state legitimacy in its

coercive actions is all the more important.

Fair and representative labelling

What if our criminal code was amended so that it possessed

only a single homicide offence of ‘murder’. This new offence

does not require a mandatory minimum life sentence, but

instead provides for punishment proportionate to the

circumstances of the killing, and left to the discretion of

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the court. And assume that discretion is used consistently

and fairly.

Would it be fair to label all killers the same, regardless

of the circumstances, the defences or justifications

accepted by the courts? Regardless of whether they received

long custodial punishments, or none at all. You might say

that it is fair, as the law treats different cases

differently in terms of punishment. I suggest the formal

labelling of an offender by the court is also part of

punishment in the criminal justice process.

Accurate labelling is extremely important in everyday usage

to distinguish between different quality and types of

similar acts as well as results. Labels such as murderer, or

rapist, or paedophile have meanings and stigmas of enormous

significance in the popular moral imagination. People

remember the label, not the punishment. As Ashworth points

out

73

…once that label is entered on the person’s criminal

record the passage of time will dim recollections of

the precise nature of the offence and may result in

the label being taken at face value…69

This need for fair and representative labelling of

offenders, proportionate to the quality of their actions

reflects not just the right of the offender to be punished

proportionately for their crime, but also the right of the

ordinary public not to have their labels devalued through

improper use and application.

Traditional constructive offences automatically label an

actor with a label that exceeds the culpability of their

actions (and in the case of murder, automatically punishes

with a life sentence). Though Ashworth never used his term

so broadly, I suggest this is another example of ‘moral

distance’ between the actors culpability and their criminal

label and its stigma.

69 Ashworth, n 43 above, 56.

74

There is, however, the reality that there are only so many

distinct labels a criminal justice system can practically

provide for. To reflect the moral culpability of the

offender, the criminal law must also rely on proportionate

sentencing. This much can be conceded without detracting

from the claim that the criminal label still possesses great

moral significance. Bearing in mind my arguments regarding

the proper use of state coercive power above, I suggest the

criminal law should not ‘round up’ on labels. That is, an

offender should not be given a label with a greater stigma

than her actual culpability. Instead, a healthy concern for

the proper use of state coercive power would prefer that the

criminal law should ‘round down’ in its labelling of

offenders.

Relevance of causative morality ‘just deserts’ and

fair labelling to Chan Wing Siu.

75

As demonstrated above, the secondary under Chan Wing-Siu is

not necessarily causatively responsible for crime B. They

have only licensed their moral culpability to acts within

the agreed criminal pursuit.

If, as I have argued, the secondary is not morally culpable

for crime B, the moral principles of just deserts and fair

labelling in criminal are similarly violated to the same

degree as with traditional constructive liability.

In both cases (Chan Wing-Siu secondaries and traditional

constructivist principals) the agents in question have done

wrong, they have indeed changed their normative position.

But I argue this is not sufficient justification for

imposing virtually unlimited levels of criminal liability.

The moral legitimacy of the criminal law’s censuring

function and powers rests on the assumption that it aspires

to reflect what is objectively morally right. If an agent is

not culpable for certain consequences, they should not be

held liable as if they are.

76

Conclusions

In this Section I have accounted for the determination of

subjective moral culpability, how it differs between

principal and secondary parties, and have defended the

central role moral culpability must play in determining

criminal liability.

Gardner and Simester argue that once the most morally

significant step (initial, advertent criminal action) is

taken to enter the sphere of criminal liability, an agent

forfeits the ‘protections’ afforded by the subjectivist

approach to criminal liability. By critically analysing the

nature of culpability, differentiating it from moral

responsibility, and outlining a particular perspective

regarding the purpose of the criminal law and value of

77

criminal labels, I argue that Gardner and Simester

misunderstand the nature of subjectivism and moral

significance and purpose criminal liability.

My claim is that the subjectivist principle should be seen

not as a way of mitigating criminal liability within an

agent’s greater moral culpability, but as a mechanism

designed to adequately identify and categorise the level of

moral culpability of an actor, and ensure the correct moral

opprobrium attaches to that behaviour. I argue these

‘protections’ ensure criminal liability mirrors moral

culpability as closely as possible. Without moral

culpability, criminal liability is illegitimate. I have

modified Ashworth’s ‘moral distance’ to explain the various

gaps between constructive criminal liability, and moral

culpability.

This Section has also identified and explored values within

this subjectivist concept of criminal law such as ‘just

deserts’ and fair labelling, and employed them to further

78

demonstrate the importance of matching, or at least not exceeding,

criminal liability with moral culpability.

The role of causative analysis in determining moral

culpability has also been introduced and will be developed

in Section IV.

Finally, in the context of the Chan Wing-Siu principle of

joint enterprise, this Section has allowed us to stand back,

and reconsider the normative implications of the creation of

a joint criminal enterprise. Our exploration of the

subjective culpability requires us to focus on what the

secondary parties to the enterprise are trying to do; what

is within their control; what is authorised; what actions

and consequences are in the realm of luck.

I suggest this approach to moral culpability refocuses our

scrutiny onto the normative limits of the agreement.

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IV. Causation, Complicity and Moral

Responsibility

As we saw in Section II, there are strong precedential and

theoretical reasons for distinguishing joint enterprise from

aiding and abetting. But both share a common, fundamental

characteristic: joint enterprise, and aiding and abetting

hold individuals responsible for the acts of other,

independent agents. But how can one be held morally (let

alone legally) responsible for the acts of others? The

answer lies in causation.

Causal responsibility, as we have already seen in Section

III, is a significant factor when evaluating moral

responsibility. In this Section we will see that physical

causal connections are not the only ways one can become

implicated in the wrongdoing of others.

80

This is not an analysis of what the law is, or necessarily what it

ought to be (for the criminal law should not seek to cover all

moral wrongs). How the criminal law might mirror these

claims about morality, and more importantly for this

article, how these claims about the morality of complicity

should guide the law of joint enterprise, will be addressed

in Section V.

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Part A: Gardner: Causation and Morality

Much of the following analysis of complicity is rooted in

Gardner’s contribution to the subject. This Section will

summarise, assess and modify Gardner’s analysis of

complicity in ‘Complicity and Causality’70 and use it to

evaluate the law of complicity.71

Gardner asks, ‘how does one become implicated in something

without having made a difference to it?’72 Does

responsibility not always require having made a difference?

Is not a physical causative contribution always necessary to

determine responsibility?

70 In Gardner, Offences and Defences, n 39 above, 57.

71 The continued focus on the similarities and distinctions between

aiding and abetting and joint enterprise is necessary to understand the

nuances of culpability in complicity, and will be helpful in formulating

suggestions for restructuring an offence of joint enterprise in my

overall conclusions.

72 Gardner, n 63 above, 57.

82

Gardner then introduces a compelling nuance to our

understanding of responsibility, arguing ‘there are two senses

in which particular wrongs might be “especially mine to care

about”…’,73 or, for which I am responsible. This involves

distinguishing between the normative force of conformity, and

the normative force on the rational attention of accomplices.

A norm in a given situation places a personal obligation on a

principal to conform in her actions. But that may not be the

end of the story. Her conforming might weigh on the rational

attention of others. They might, as secondary participants,

have reason to ensure she conforms. In this way, the norm

‘is impersonal in respect of rational attention,’ while

‘being personal in respect of conformity’.74

73 ibid, 62 (emphasis added).

74 Gardner, n 63 above, 62.

83

The normative forces are fundamentally different. Only the

principal is obligated to conform, but secondaries may be

obligated to help, facilitate, remind, coerce, etc.75

The potential for the norm to be impersonal in respect of

rational attention, normatively connects secondaries to

principal wrongdoing. This is how a secondary can become

complicit in a principal’s actions. The actions of a

secondary may not necessarily directly impact on the wrong’s

commission, but they may have a combined causative and moral

impact on the principal.

Making a difference

How can we make a difference? We can make the change

ourselves as a principal. We can make the change through

other actors, as a secondary. But we can also make a

difference by doing nothing, by not intervening (as we can

be morally culpable for omissions, even if the law refuses –

75 ibid.

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for other competing moral reasons – to hold us liable for

them). The first two can be labelled ‘physical causative

contributions’. By our action, a difference is made.

But in the last example of making a difference – when we

should have intervened – our inaction cannot be explained in

terms of a contribution. That is a distortion of what is

commonly understood by contribution (ie adding to). In these

cases only our moral obligations76 draw us into the dynamic,

and we are causatively (as our failure to act, led, unopposed,

to the resulting wrongs) connected to it purely because of

the force of our moral obligations. We should have made (or

should have attempted to make) a difference to the

principal’s making a difference. This is not physical

76 I should note that I am aware this claim about moral obligations,

presupposes the existence of some kind of moral norm, which places

obligations on others to intervene or assist etc. Though he does

expressly state so, I suspect that in ‘Complicity and Causality’,

Gardner is adding to the discourse around the construction of an ethical

argument for the existence of such a moral norm. This is an argument I

find compelling – and in this article, I assume its veracity.

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causation, but what I will term moral causative obligation: what

the secondary should have physically done to attempt to stop

the principal.

Gardner comes to similar conclusions in a roundabout way.

But he fails to highlight these fundamental distinctions

between purely physical and moral causative responsibility.

This distinction will play a significant role when we

attempt to apply the conclusions on complicity to joint

enterprise below.

For how much are we responsible?

As we saw above, morality (or, at least, one particular and

compelling moral norm) may require that we as secondary

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parties do, or abstain from doing something, to ensure the

principal does not cause the wrongful consequence. So, how

does this way of viewing moral complicity apply to the

categories of complicity covered in criminal complicity

liability? How do we determine whose rational attention

should be focused on the principal’s obligations, and

therefore secondarily responsible?

I suggest this is a question of proximity, for, as Gardner

explains,77 it would be an inefficient use of our rational

attention if we were to spend our days worrying about the

principal wrongdoing of others in the world, and how we

should individually be preventing it.

Part B: The law

Aiding and abetting

77 Gardner, n 62 above, 64.

87

In aiding and abetting, this proximity is determined by

knowledge of the principal’s intended acts. Once the

accomplice becomes sufficiently aware of the principal’s

plans, they are obligated to not take positive action (or

omit to perform legal duties) to aid, abet, counsel (or

procure the wrong from)78 the principal. Knowledge

crystallises their normative relationship with the

principal’s wrongdoing, and their action/inaction

establishes their secondary responsibility to that

wrongdoing. While their secondary responsibility is

qualitatively different to that of the principal, the criminal law

holds them equally liable as a principal.79

78 Procuring a wrong has a different structure to other forms of aiding

and abetting. When a secondary procures a wrong, they have instigated

the wrongdoing. I suggest procuring is a causally unique secondary

offence, as the secondary is at the start of the causative chain. Other

complicity offences place the secondary elsewhere along the causative

chain. This may suggest that procuring is an aggravated form of

secondary wrongdoing – possibly more culpable or wrong than that of the

principal.

79 I believe there are strong arguments in favour of holding aiding and

abetting secondaries, in certain cases, to a lower moral and criminal

88

Now, what–aiding–and–abetting–does–not–criminalise–is–

knowledge–alone, or–even agreement–with–the–principal’s–

criminal–wrongdoing. While–there–are–conceivable omissions–

that–could–draw–a–secondary–into–criminal–complicity–(eg not

fulfilling a specific legal obligation to report a planned

crime), aiding–and–abetting–is–primarily concerned–with–

positive–actions–by–secondary–parties–that–assist–the–

principal. There is–no–general–criminal–liability–for–

failing to intervene–to–stop–the–criminal endeavour. So,

while someone may be morally complicit because of their

knowledge and failure to act on that knowledge, they are not

necessarily criminally complicit.

The law has made a judgment call regarding how far the

criminal law should go criminalising moral complicity. The

law here privileges causal contributions, and tolerates

purely moral causal responsibility.

standard of liability than principals. Unfortunately justifying that

belief is beyond the word limit of this article.

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‘Plain vanilla’ joint enterprise

In joint enterprise, the secondary has either expressly or

tacitly agreed with the principal to take a certain course

of criminal action. Their normative relationship to the

actions of the principal crystallises on agreement, and

places an obligation on them to either withdraw from the

joint enterprise; to dissuade the principal from doing the

agreed wrong/s; or (as the criminal law itself requires of a

secondary in order to avail of the defence of withdrawal

from a joint enterprise)80 to take positive, interventionist

steps to end the venture.

Entering into the agreed criminal enterprise places the

secondary in a position that is morally equivalent to the

principal in terms of responsibility. By participating in

the criminal enterprise, the secondary morally assents to

all acts in pursuit of the agreed criminal ends. So while

80 R v Beccera & Cooper (1975) 62 Cr App R 212.

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they may not be directly causatively responsible for the

conduct, the nature of their moral proximity is such to

justify their being held equally criminally liable as the

principal.

In order to be exculpated from a joint enterprise, the

criminal law places (or reflects) the most onerous moral

obligation on the secondary (ie take positive

interventionist action).

Chan Wing-Siu

In cases falling within the Chan Wing-Siu principle of joint

enterprise, a member of the joint enterprise (the principal

perpetrator of crime B) deviates from what was agreed and

commits crime B. As Crime B is outside of the agreement, a

different set of personal obligations to conform come into

play for the principal. This conduct is outside of the

agreement, so the moral force from the agreed crime A on the

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secondary’s rational attention no longer plays a role. The

secondary’s complicity in crime B must be assessed in terms

of their proximity to crime B.

Under Chan Wing-Siu, proximity is determined by foresight that

the principal might do the act(s) of the greater crime B,

combined with their participation in crime A. Once the

secondary has this foresight, Chan Wing-Siu says they are

complicit, and cannot exculpate themselves from liability

from crime B.81

In Gardner’s analysis of complicity, once the secondary

party’s rational attention is pricked over the princpal’s

personal obligations to conform, another set of moral

obligations crystallises, and the secondary becomes morally

obligated to intervene in order to reduce the wrongs (and

purge themselves of moral responsibility as accomplices).

81 See the dicta of Lord Hutton in Powell, n 16 above, 556 and the

hypothetical conscientious objector.

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They should take steps to prevent, or discourage, or avoid

assisting, or disassociate themselves from the wrongdoing.

But, crucially, Chan Wing-Siu doesn’t place those cards on the

table for the secondary. Even if they do actively discourage

the principal (as with Lord Hutton’s hypothetical

conscientious-objector), their involvement in crime A

overrides all other independent normative considerations

emanating from crime B.

There is no way of avoiding legal complicity for crime B

once a secondary participates in crime A with foresight of

crime B. Chan Wing-Siu holds the secondary criminally liable

for crime B, when they are morally responsibility for crime

A, but not necessarily for crime B. It constructs legal

culpability for crime B where the secondary may have morally

exculpated themselves.

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As we saw in Section III, we again see how Chan Wing-Siu’s

secondary criminal liability may go far beyond moral

responsibility, and over-criminalise.

By unearthing key inter-relationships between the criminal

law and these propositions of causative morality, we have

seen how the criminal law makes certain judgment calls as to

how much moral responsibility should be mirrored in criminal

accomplice liability. But in the case of Chan Wing-Siu, a gap

has emerged between the requirements of morality and

criminal liability.

The ‘moral distance’ between Chan Wing-Siu and this conception

of morality makes this aspect of joint enterprise morally

illegitimate.

I should reiterate again, that this claim does not mean that

some or all of those convicted under Chan Wing-Siu are

innocent. This critique is only aimed at showing a

structural tendency in the offence to over-criminalise

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certain actions by labelling them as murder (and over-punish

due to murder’s mandatory sentencing).

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V. Tentative suggestions for reform

Part A: The hard cases re-evaluated

Hui Chi-Ming

The background facts in Hui Chi-Ming, namely the acquittal of

the principal offender for murder, and the plea deals

offered to the active secondary participants in the fatal

assault, give a clearer picture of the slight (and tragic)

absurdity of an application of the Chan Wing-Siu principle.

But is the result really absurd and tragic?

The evidence indicated the appellant was merely present

during the group’s attack. In Section II, I suggested any

analysis of a secondary’s subjective moral responsibility

should focus on the normative limits of the agreement: what

the secondary has licensed his responsibility towards

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pursuing. This requires us to look at what was explicitly

and tentatively agreed between the group.

First, we can take it that although the appellant was not an

active participant, he intended to participate in crime A (a

‘plain vanilla’ joint enterprise), the nature of which

requires an analysis of the secondary’s intent; the

appellant’s thinking when he went with the group.

Assuming he was aware the principal was armed with a metal

bar, and that the group intended to violently assault their

intended victim. If the appellant’s intent was to join the

group in their hunt, then he is morally culpable as if he

was the one who engaged in the assault.

An argument might be made that the appellant did not foresee

death as a consequence; that they reasonably believed the

group would only inflict a non-fatal assault. But that is an

argument challenging the constructive element of murder

(liability for death, when only serious injury foreseen).

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Section III has offered a critique of this type of

traditional constructive offence, but challenging the

structure of murder liability is not the concern of this

article.

So the murder conviction in Hui Chi-Ming may, in fact, be

morally sound – from a joint enterprise perspective at

least.

Yet there remains a sense of unfairness in the principal’s

acquittal for murder. The structure of the ‘wider principle’

does not permit a jury to find a secondary guilty of

manslaughter in place of murder. It is all or nothing. So

while a principal may be deemed worthy of acquittal for

murder, but still culpable enough to deserve a manslaughter

conviction, a Chan Wing-Siu secondary can only be held liable

for murder. The ‘wider principle’ does not allow a jury to

consider mitigating circumstances in their reasoning on the

legal culpability of the secondary.

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Hui Chi-Ming, while technically correct in its outcome (even

after this article’s critical claims about Chan Wing-Siu),

gives us an illustration of the significance of a jury’s

ability to evaluate the secondary’s intent and culpability

regarding crime B.

Powell

Crime A in Powell was the appellant’s agreement to purchase

drugs from the victim. Crime B was the use of the gun (the

presence of which the secondaries were aware of) by the

principal to kill the drug dealer. Employing Section II’s

agreement-centred normative analysis to crime A, we find

that unlike in Hui Chi-Ming, crime A is qualitatively very

different to crime B. The appellants had agreed to buy

drugs, a non-violent offence with an arguably low level

(arguably none at all) of moral culpability.

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Lord Rodger, reviewing Powell in his speech in Rahman, places

enormous significance in the appellant’s awareness that one

of the group was armed with a gun, asserting knowledge that

one member of the enterprise possessed a weapon, logically

implies the secondaries knew it might be used in crime A: ‘…

why else would the third man be carrying a loaded gun?’ 82

The nature of crime A in Powell illustrates the issues with

the constructive aspects of the knowledge of the fatal

weapon qualification outlined in Section I, and Chan Wing-Siu.

First, mere knowledge that one of the joint enterprise is

armed should not automatically imply foresight of its use in

the course of the agreed crime A (the effect of the

knowledge qualification). Crime A was not a violent crime.

Just because someone is armed, it does not logically follow

that they intend to use it in the course of a fairly

innocent (though criminalised) activity. Here we can see how

82 Rahman, n 1 above, 376.

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the knowledge qualification alone has the potential to over-

criminalise in certain circumstances.

Secondly, even if the appellants did foresee its use during

the course of their drugs purchase, it is an action

completely outside of what they had agreed to do in crime A.

While in Hui Chi-Ming crimes A and B are linked by their

violent nature. In Powell the only link between crimes A and

B is the secondaries’ foresight. On the information given in

the judgment, there are insufficient grounds to imply

authorisation for crime B by the appellants.

The conclusions arrived at in Section IV on complicity and

causative morality are relevant here too. If the appellants

in Powell did foresee the principal’s use of the gun to kill

the dealer, what kinds of moral obligations arose for them?

How was their rational attention affected? Well, at the

minimum, we might say they should have made clear to the

principal that they did not want the weapon to be used. We

might also claim that their knowledge required them to

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withdraw from crime A altogether, or that they were morally

obligated to inform the police about the principal’s

possession of a gun.

However, as we also know from Section IV, Chan Wing-Siu does

not permit a court to evaluate these moral obligations on

secondary participants, and ask whether the secondary purged

themselves of culpability by their actions.

It is clear that on either Section III or IV’s analyses,

Powell is a good example of Chan Wing-Siu’s overcriminalisation

for murder.

Part B: tentative suggestions for reform

Each of the Lords in Powell highlighted the complexity of the

doctrine as it stood, and the difficulty the courts feel

juries have in applying it. This forms a substantial part of

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the courts justification for the simple foresight test in

Chan Wing-Siu.

The analysis offered in Sections III and IV is undoubtedly

highly abstract and complex. The meritorious concern of the

House in Powell, that the criminal law must be accessible to

ordinary members of the public who constitute our juries,

requires that these complex moral considerations be

translated into simple and straightforward principles and

relatively easily applied tests.

There is also the important consideration that the criminal

law cannot, and should not, seek to include all forms of

moral wrongdoing. This concern that society should limit the

sphere of criminal liability, well within the wider realm of

moral culpability (the nature of which is always hotly

contested), requires that many of the conclusions regarding

non-physical, moral responsibility arrived at in Section IV

should be excluded from any reformulation of joint

enterprise. Long-settled principles of classic, liberal

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morality have meant that the number of culpable omissions

our society has criminalised is strictly scrutinised and

limited.

We are left with the agreement-centred conclusions of

Section III. How might these claims regarding the morality

of joint enterprise be applied in law?

I suggest a return to the pre-Chan Wing-Siu line of authority

(minus the morally problematic and constructive ‘knowledge

qualification’. Evidence of that knowledge will undoubtedly

be relevant to a jury’s evaluation of a secondary’s

intentions, but automatic implications have the potential to

lead to injustice).

Anderson & Morris required that the jury evaluate the secondary

participant’s intent in relation to crime B. In that case

the jury convicted the appellant of manslaughter (quashed on

appeal), not murder. By requiring an evaluation of the

secondary’s intent regarding crime B, the doctrine can

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refocus its attention back to the normative limits of the

agreement.

This is a straightforward approach with precedential

support. Requiring secondary intent places secondary

liability for murder on an equal footing with principals. It

also opens the door for juries to convict a sufficiently

culpable (in relation to crime B; determination of which

could be guided by the conclusions in Section IV) secondary

of manslaughter. In cases such as Powell, where the secondary

actually did (not presumptively by way of the knowledge

qualification) foresee the use of the gun, a manslaughter

conviction might be justified.

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Conclusion

The final sections above illustrate how judicial concern for

theoretical simplicity and evidential practicality, can,

particularly in the case of Powell, lead to gross injustice.

In this article I attempted to reduce the analysis to the

moral ‘ought’ as the empirical and legalistic ‘is’ (the

settled case law) offered no avenues to pursue my intuitive

concern with the structure of the Chan Wing-Siu ‘wider

principle.’ The precedential authority has settled the law

quite clearly, but in doing so, has also departed from what

I believe should always be a fundamental guiding principle

of formulating principles within the criminal law, clear and

reasoned moral considerations.

106