ABSTRACT
I shall argue that the common purpose complicity doctrine as expounded by Sir Robin Cooke in Chan Wing-Siu v. The Queen (and since adopted by the Lords) cannot be reconciled with a consistent line of authorities going back 500 years. Historically it was necessary for D2 to authorise D1’s actions. Thus D2 could not be liable where (s)he simply foresaw D1’s actions, especially when D2 had expressly forbidden those actions. D2 could only be liable if (s)he had at least obliquely intended to encourage the perpetrator by impliedly authorising any collateral crimes. Collateral crimes are normally conditional – they depend on what happens while the joint enterprise is being carried out. ‘Foresight’ was only ever meant to pertain to D2’s knowledge of any planned collateral crime that would be perpetrated where necessary to make the underlying joint enterprise succeed. It was not meant to supplant the requirement that any criminal response to the contingencies of a joint enterprise be intended and authorised. (D2’s implied authorisation forms the conduct element because it is factual encouragement.) If judges were to accept this interpretation, it would result in a radical narrowing of the doctrine as laid down in Chan Wing-Siu v. The Queen. Such a change, in practical terms, could raise concern that it would remove protection for society. However, this concern could be addressed by amending the Serious Crime Act 2007 to criminalise reckless participation. The advantage of amendment to the 2007 Act’s offences is that it allows for fair labelling and proportionate punishment.
