Foresight in Common Purpose Complicity/Joint Enterprise Complicity: It Is a Maxim of Evidence, Not a Substantive Fault Element

Abstract

In the Chapter 2, the law of common purpose complicity is examined. It will be argued that the English authorities dating back to the mid-sixteenth century support the theory that common purpose complicity requires intentional factual encouragement. In addition, it will be argued that common purpose liability as a form of complicity liability rests on the participants’ mutual intentions — that is, their common purpose. The jury has to be able to infer that the common purpose extended to the particular collateral crime. It can do this by inferring that the accessory conditionally or directly intended the collateral crime to be perpetrated for the purpose of making the underlying joint enterprise succeed.

Furthermore, it will be argued that the foresight of possibility maxim proposed by the High Court of Australia in Johns v The Queen was not proposed as a substantive rule of complicity liability, but as an evidential maxim. I shall argue the Lords in R. v. Powell mistook the evidential maxim that is used for inferring conditional intention to be a substantive fault element for common purpose complicity. I assert that the maxim can be used to allow the jury to infer that the accessory conditionally intended to encourage the perpetrator to perpetrate the anticipated collateral crime, if the facts show that the accessory knew that the perpetrator intended to perpetrate the collateral crimes should certain conditions arise, such as, a security guard confronting them during the course of a robbery. The jury can use evidence of the fact that D foresaw P’s collateral crime as a possibility to infer that D conditionally intended P to perpetrate the anticipated target crime for the purpose of making their joint enterprise succeed. If D and P mutually intend that P should kill a security guard, should a security guard confront them during the commission of their joint robbery, the jury could infer that D conditionally intended that P kill the guard should the need to kill the guard arise and that P was encouraged by the fact that D had knowledge of her conditional plans and participated in the underlying joint enterprise with that knowledge. The nub of the Chapter is that factual participation (encouragement) cannot be presumed, but must be proved to have existed.