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THE DEMISE OF “PARASITIC ACCESSORIAL LIABILITY”: SUBSTANTIVE JUDICIAL LAW REFORM, NOT COMMON LAW HOUSEKEEPING

Accepted version
Peer-reviewed

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Article

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Abstract

jats:titleAbstract</jats:title>jats:pIn jats:italicJogee and Ruddock</jats:italic>, the Supreme Court/Privy Council decided that the law on secondary liability took a “wrong turn” in 1984 in the Privy Council's decision in jats:italicChan Wing-Siu</jats:italic>. jats:italicChan Wing-Siu</jats:italic>'s contemplation/foresight-based fault element for secondary liability was alleged by the Supreme Court/Privy Council to have bucked a legal trend towards requiring that the secondary party intended to encourage or assist every one of the principal's offences. This article presents an alternative history of secondary liability that explains a wider selection of cases from 1553–1984 than were considered in jats:italicJogee and Ruddock</jats:italic>. On this alternative account, jats:italicChan Wing-Siu</jats:italic> was simply a more explicit and intellectually honest decision than its predecessors. If this alternative view of history is accepted, the Supreme Court/Privy Council's claim to be merely “correcting” (rather than substantively reforming) the law of secondary liability should be rejected. Doing so would make more critical a question that was side-stepped in jats:italicJogee and Ruddock</jats:italic>, namely whether this reform should have been undertaken by the judiciary, rather than the legislature.</jats:p>

Description

Keywords

criminal law, accessories, parasitic accessorial liability, joint enterprise, judicial law reform

Journal Title

The Cambridge Law Journal

Conference Name

Journal ISSN

0008-1973
1469-2139

Volume Title

75

Publisher

Cambridge University Press (CUP)