Extended Criminal Enterprise

The doctrine of extended joint criminal enterprise has attracted significant criticism. Much of this criticism is based on the perceived capitulation of legal principle to policy; though the doctrine is of some prosecutorial utility, it lacks legal coherence – it overextends criminal liability to individuals for crimes to which they have neither agreed nor committed. This essay will first try to explain this unwieldy doctrine before considering its criticisms and rationalisations. Most recently these were outlined in the cases of R v Jogee and Miller v The Queen, the former going so far as to determine that the doctrine was so inherently flawed that it was in fact an error in the English common law. This in turn incited reassessment of the …show more content…
That is, where another participant has committed a crime that is beyond the scope of the enterprise but within the contemplation of the accused then they too will be held liable for the collateral crime. This is in spite of the accused having neither committed the actus reus nor arguably possessing the requisite mens rea. The former element is accounted for by the law of complicity; where parties act in concert, this allows the actus reus to be extended to all participants. As for the latter, mens rea is supposedly satisfied by virtue of contemplation of a collateral crime amounting to its corresponding intention. In this way the elements of the collateral crime as they pertain to a secondary participant are made out. Criticism is directed to how both these elements have been …show more content…
This poses several issues, the first being that this threshold for intention is far too low. Defined in the case of Johns v The Queen as the mere foresight of possibility, this creates an awkward situation whereby it is possible that a lower standard of mens rea will be applied to a secondary participant than to the principal participant. This was observed in R v Jogee and further explored in Justice Gageler’s dissenting judgment in Miller v The Queen; Justice Gageler extrapolated this anomaly to the situation of murder and manslaughter, noting that if mere foresight is sufficient then this would significantly undermine any distinction which is maintained between the two offences. Moreover whether foresight gives rise to any moral culpability at all comes into question; this follows concerns that criminal liability when applied on the basis of foresight is not commensurate with the moral culpability of a secondary participant in such a situation. Again, returning to the scenario of murder/manslaughter, there is an appreciable difference between proceeding with a course of action which is likely to result in death and a course of action where death is a mere possibility. Surely the latter ought to result in a lesser degree of criminal liability such is the difference in moral culpability. Still Justice Keane having regard for