A Normative Case for Abolishing the Doctrine of Extended Joint Criminal Enterprise

Abstract

It is submitted in this article that assisting/encouraging is normatively different from and less harmful and dangerous than perpetration, and that the unfairness and injustice of complicity is doubled in the context of extended joint criminal enterprise. The defendant’s participation in the underlying crime is constructed as participation in the collateral crime and such fictitiously constructed participation is further constructed as actus reus of the collateral crime; and the defendant’s foresight of the collateral crime is constructed as intention to assist/encourage the collateral crime and such fictitiously constructed mental state is further constructed as sufficient mens rea for the collateral crime. The double constructive nature of this doctrine cries out for legal reform, especially in jurisdictions where it is still retained as a sui generis doctrine. It is proposed that a new lesser offence of risking another’s collateral offending will serve better the purpose of fair labelling and proportionate punishment.