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Research Seminar - Findlay Stark, University of Cambridge

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Location: Room S2.12 Social Sciences Building

"Reform of the Law of Criminal Complicity: A case study in the theory of criminal law adjudication"

Findlay has taught at Cambridge since January 2012. He has been the Deputy Director of the Cambridge Centre for Criminal Justice since January 2016, and held the post of Academic Secretary of the Faculty of Law since September 2016.

In Jogee and Ruddock (2016), the Supreme Court and Privy Council disavowed ‘parasitic accessorial liability’. This form of accessorial liability held D1, a party to an agreement with D2 to commit one crime (e.g. burglary), liable as an accessory for unintended, but foreseen, collateral crimes (e.g. murder) committed by D2 in furtherance of the agreement. With ‘parasitic accessorial liability’ gone, all accessory liability in England and Wales is captured under the umbrella of intentional assistance or encouragement of the principal’s offending. Foresight of offences that the principal might commit is mere evidence of the relevant intention.

This paper is not about the merits of that change in the substantive criminal law, or its potential practical impact (which might, in the end, be minimal). Instead, this paper will discuss what Jogee and Ruddock tells us about the theory of criminal law adjudication, under the following headings: precedent and overruling in a common law system of adjudication (and particularly what can be done to legitimise and delegitimise previous decisions); the importance of predictability and consistency in application of the criminal law (often assumed by theorists to be of paramount importance in the criminal law, to the extent that criminal law is sometimes bracketed off from more general theoretical discussions of legal adjudication); and institutional constraints on the extent to which judges can develop the criminal law. It will be argued that, had the Supreme Court and Privy Council engaged more fully with these issues, their decision would have been far less controversial than it should be recognised as presently.

(To get quickly to these aspects of Jogee and Ruddock, it will be assumed that the historical thesis presented by the Supreme Court and Privy Council (the mainstay of the reasoning in the decision) is at least controversial. This is a matter explored in the speaker’s earlier work ((2016) 75 CLJ 550). A brief overview of that doctrinal/historical argument will be included in the presentation, but it will not be the focus of discussion)

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