Citation

Baker DJ. Hong Kong Law J. 2017; 47: 349-397.

Copyright

(Copyright © 2017, Hong Kong Law Journal)

DOI

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PMID

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Abstract

In this article, I try to ascertain whether there is any normative or doctrinal foundation for the extended joint enterprise doctrine. In particular, I examine the normativity of the "unlawfulness" rationale that has been invoked to justify the extended joint enterprise doctrine. All the cases concerning common purpose complicity scenarios where unlawfulness has been an issue hinge on the doctrine of constructive crime, so I try to show that those who are invoking that doctrine of unlawfulness to support their normative case for extended joint enterprise liability are working from a mistaken doctrinal premise, because the doctrine of constructive crime in the development of the law of complicity was limited to homicides, whereas complicity's doctrine of common intent applied to all unlawful joint enterprises. Furthermore, it is contended that unlawful agreements (conspiracies) in themselves do not supply a normative justification for this sort of complicity, even when the agreement is consummated, because the accessory does not take an equal normative position in an unintended collateral crime that is merely foreseen as a possibility.

Language: en

Keywords

common-law