The fault element and withdrawal principles in joint criminal enterprise: The need for a restatement

Badar, Mohamed and Reed, Alan (2014) The fault element and withdrawal principles in joint criminal enterprise: The need for a restatement. Journal of International and Comparative Law, 1 (2). pp. 253-292. ISSN 2313-3775

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Abstract

Joint enterprise principles have extended accomplice liability to establish a form of guilt by association. Judicial sleight of hand has been adapted, in general, to common design rationale, and it has been used as a prosecutorial expedient towards establishing derivative inculpation. The pro-prosecution bias attached to joint enterprise doctrine is self-evident, and courts have zealously favoured its application as an inculpatory tool. This article focuses on extant law relating to fault elements for homicide within common design, and comparatively reviews alternative juridical precepts. New proposals are adduced on appropriate fault thresholds levels that ought to be supererogatory to satisfy the specific intention offence definitional element for a murder conviction. The debate then extends to review withdrawal principles as part of reverse conduct prophylaxis. A new restatement is chartered that identifies imputed normative proportionality for withdrawal, penitent motive, and reverse burden of persuasion as key factorisations.

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