Might Alone Does Not Make Right: Justifying Secondary Liability
22 Pages Posted: 16 Feb 2014 Last revised: 19 Feb 2014
Date Written: February 14, 2014
The current test for secondary liability usually turns on foresight of a risk that the principal might commit the crime, but this is misguided. If some form of foresight must be used, which is both doubtful and if true, regrettable, the current formulation of it is unacceptable. It is commonly said now that S is liable for the same offence as P, where S foresees a “real risk” or “substantial possibility” that P will commit that offence. This is a poor cousin to recklessness, the hard-won common law test for wrongful risk-taking. In particular, reference to quantifying the risk cannot take the place of the other established element of recklessness: recklessness only criminalises foreseeing a risk and unjustifiably taking it, rather than merely the taking of any appreciated risk, however small. A return to established principle might help to level off from the last twenty years’ downward spiral of the level of culpability required for secondary liability and prevent further problems in the law. At the very least, the law should recognise the situations where the validity or utility of the conduct by the secondary party makes the risk that it contributes to a crime taking place insufficient to justify criminal liability.
Keywords: crime, risk, foresight, secondary liability, joint enterprise, recklessness, intention, knowledge, belief, Cunningham, Rook, Webster, Chan Wing-siu, Powell, complicity, accessories
Suggested Citation: Suggested Citation