For centuries, the law has allowed other people to be convicted of a crime that has been physically committed by another person. This was seen in the most recent case of Roger Rogerson and Glen McNamara who were both jointly tried for the murder of Jamie Gao. The jury convicted the two former detectives after finding that they were satisfied the pair acted as part of a joint criminal enterprise.

There are three ways in which a person can be criminally liable for an offence, as outlined below.

Accessorial Liability

Firstly, accessorial liability relates to a person who assists the principal in committing the offence either before or after the criminal activity took place, but was not present. That is, they intentionally assisted or encouraged the principal to commit the criminal activity.

Joint Criminal Enterprise

Secondly, a joint criminal enterprise is where two or more persons agree to commit the same criminal behaviour and so are equally responsible for the acts of another in the carrying out of that criminal behaviour.

Generally, if person is charged with a crime under either of these principles, amongst other things, the relevant intention to establish the offence will need to be proved.

Extended Joint Criminal Enterprise

The most controversial principle under secondary liability is Extended Joint Criminal Enterprise (‘EJCE’). EJCE attaches to any person who makes an agreement to commit a crime but foresees the possibility that the other participant(s) might commit a more serious crime.

A common situation may be where two people agree to commit an armed robbery of a bank and during the committing of this crime, one person wounds a person whilst in the process of robbing the bank.

In this example, the person who agreed to commit the armed robbery but did not intend to commit a further offence will still be guilty of the more serious crime if they could foresee the possibility of that person causing such harm.The mental element required to prove this more serious crime is therefore easier to prove for the person who did not agree to commit the offence than the person who actually wounded a person.

Not only do these alternative pathways provide additional difficulty for juries but it has also led to a principle that is entirely inconsistent with the general principle of criminal responsibility.

Since this principle was developed in 1980s in the United Kingdom and Australia, it has been criticised from many academics and minority judgments. However, in a milestone judgment in the UK, the case of R v Jogee [2016] 2 WLR 68 it was stated that the principle of EJCE was in some respects a mistaken reading of previous law and abolished the requirement of ‘foreseeing the possibility’.

The High Court is also currently considering whether to reconsider and revise or abandon the principle of Extended Joint Criminal Enterprise in the case of Smith v The Queen (HCA, Case No A22/2015).

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