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Unlawfulness’s Doctrinal and Normative Irrelevance to Complicity Liability: A Reply to Simester

Baker, Dennis (2017) Unlawfulness’s Doctrinal and Normative Irrelevance to Complicity Liability: A Reply to Simester Journal of Criminal Law, 81 (5). pp. 393-416.

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The aim of this essay is to show that the judges siting in the majority in Miller v The Queen1 (hereinafter Miller) got the law wrong. I attempt to do this by briefly setting out why I think the decision in R v Jogee2 (hereinafter Jogee) is legally sound. This essay is as much a defence of Jogee as it is a critique of Miller. In this essay I shall also argue that there is no doctrinal foundation for Professor Simester’s claim that (extended) joint enterprise complicity was an established doctrine of complicity in English and Australian law.3 In addition, I shall argue against Simester’s normative claim that a participant in a joint enterprise ought to be equally liable for any crimes that are collateral to that enterprise including murder, even when she has not assisted or encouraged the collateral crime. Simester’s normative claim is that participation in the underlying enterprise (i.e. participation in a “joint” burglary) is normatively as wrong as perpetrating the collateral crime per se (i.e. the collateral murder of the burglarised house’s occupant). In Jogee the Supreme Court held that the law as stated in R v Powell4 and Chan Wing-Siu v The Queen5 was based on a mistaken interpretation of the law. Prior to the decision in Jogee, I argued that the law of complicity in England and Australia ought to be interpreted as follows.6

Item Type: Article
Divisions : Faculty of Arts and Social Sciences > School of Law
Authors :
Date : 29 August 2017
DOI : 10.1177/0022018317728832
Copyright Disclaimer : Copyright 2017 Sage Publications
Uncontrolled Keywords : complicity, extended joint enterprise, doctrine of constructive crime, unlawfulness
Depositing User : Melanie Hughes
Date Deposited : 25 May 2017 09:18
Last Modified : 16 Jan 2019 18:52

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