Thursday, September 19, 2019
Victoria B Wang (University of Surrey) has posted Participation in Crimes: An End to Derivative Complicity Liability? (Law Press. China 2018) on SSRN. Here is the abstract:
This book has examined the English law governing participation in crimes and has built a case for abolishing derivative complicity liability. It has been argued that participation (assistance or encouragement) is less harmful and less dangerous than perpetration because it is contingent on the perpetrator to make an independent and autonomous choice to commit the target crime; and therefore participation should not be labelled and punished the same as perpetration. It has been submitted that derivative complicity liability should be abolished in its entirety and be replaced with a new scheme of individual liability that allows for fair labelling and proportionate punishment.
The doctrine of collateral joint enterprise is an unreasonable extension of derivative complicity liability, which makes a person fully liable as a perpetrator for a collateral crime committed by the perpetrator during the course of their enterprise to do an underlying crime as long as he or she has foreseen the collateral crime as a possible incident of their joint enterprise. It has been argued that the double constructive nature of this doctrine makes it extremely unfair and unjust, and therefore it should be replaced with a new lesser offence of risking another’s collateral crime which will label and punish the defendant for his or her personal culpable risk-taking.
The “control cases”, which make a person who has a civil right to control fully liable as a perpetrator for the crime of others if he or she does not exercise such control to prevent another from committing the crime, has added further support to the case for abolishing derivative complicity. It has been submitted that control cases should be dealt with under a new minor offence of failing to prevent crimes, if any criminalisation is needed at all.