Legal Studies Research Paper Series Vol. 6, No. 8

The Faculty has published Volume 6 Number 8 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Matthew Dyson: Bases and Baselessness in Secondary Liability (31/2015)

This paper demonstrates that parasitic accessorial liability (sometimes known as “joint enterprise”) is the erroneous tangent from two strands of common law jurisprudence. The original two strands are (1) liability for aiding, abetting, counselling and procuring, known here as basic accessorial liability and (2) liability for participating in a common illegal purpose, known here as the common purpose rule. The second of these, the common purpose rule, was an extension of the normal accessory liability principles: it was a way to conceive of the parties as committing a series of acts together, rather than as isolated events where one aided, abetted, counselled or procured another. The tangent, (3), was parasitic accessorial liability, a new form of liability, created entirely by the judiciary, particularly from 1966-1985. Here, no aiding, abetting, counselling or procuring was required for further crimes beyond the first (unlike in (1)), nor that the crime was part of a common purpose (as in (2)).

Since its conception and slow development in the 1960s, the parasitic accessorial liability tangent has created serious doctrinal and practical difficulties. First, despite some assertions to the contrary, it is indeed a tangent from the historic position of the common law. It is not based on the principles of basic accessorial liability or the common purpose rule; it is clearly a departure from those authorities.

To the extent that the rule can be justified it must be justified by arguments not from history, but from theory or practice. Unfortunately, it lacks both. To justify parasitic accessorial liability in theory requires the difficult idea that to foresee a non-negligible risk of another committing a crime is automatically to authorise that risk.

Should the risk eventuate, without any physical link to the secondary party, that party is then liable in full for it. There is no lower form of subjective culpability other than strict liability and there is no lower form of physical contribution at all. In practice, parasitic accessorial liability certainly permits convictions for most serious offences where it is hard to prove events, but that is not clearly a good to society.

However, the unhappy result of this tangent is even worse than simply having a very wide form of accessorial liability. In the last two decades, the tangent has become dominant: the language and liability rules of “joint enterprise” have taken over almost entirely. Prosecutors by default charge and defendants are then convicted on the basis of a “joint enterprise”, rather than on the basis that the defendant was an accessory, or a party to a common illegal purpose. This new terminology elides all the distinctions the law had good grounds for making. Most troublingly, it has led to a downward shift in the liability for all secondary parties. Traditionally, to be liable in full for the principal’s offence, the secondary party needed to contribute in some minor way to the principal’s crime, knowing of the principal’s purpose to commit that crime or one like it and intending to aid or encourage him. Now, a secondary party need only contribute in some minor way, intending his or her own act, while foreseeing that the principal might commit that crime or one like it. In practice, the narrative presented for accessories is that they were “in it together” and insufficient effort is put into distinguishing between relative contributions and fault.

Sarah Worthington: Common Law Values: The Role of Party Autonomy in Private Law (33/2015)

This chapter examines the importance of party autonomy in commercial contracts. The focus is on four areas: implied terms, exclusion clauses, termination clauses and penalties. With little regard to the logic of the end result, the law clearly supports the social value of parties’ freedom to bargain in all four areas other than the penalties jurisdiction. Arguments typically advanced in favour of retaining the penalties jurisdiction are evaluated and found to be unpersuasive. It follows that the only principled response is to abandon the current legal rules on penalties. Here, and more generally, there is already adequate, and principled, protection of party autonomy in the common law’s insistence on proper consent to binding bargains and, in specific instances, in the protective but paternalistic statutory protection of certain specific classes of contracting parties.

Mark Elliott: A Tangled Constitutional Web: The Black-Spider Memos and the British Constitution's Relational Architecture (34/2015)

This paper examines the decision of the UK Supreme Court in R (Evans) v Attorney-General [2015] UKSC 21, [2015] 2 WLR 813. The case, which concerned the legality of the UK Government's attempt to block the disclosure under the Freedom of Information Act 2000 of correspondence between the Government and the Prince of Wales, raises a series of interlocking constitutional questions. The paper considers the significance of the Supreme Court's judgment by reference to those questions, paying particular attention to the light it casts upon the relationship between the constitutional doctrines of parliamentary sovereignty, the rule of law and the separation of powers. The paper distinguishes two distinct judicial techniques adopted in the case - turning respectively upon administrative-law and constitutional-law methodology - and assesses the legitimacy of the strikingly activist approach evidenced by those judges who adopted the latter methodology.

Asif Hameed: Legislation and Law on the International Plane (35/2015)

What is legislation? What is law? A great deal of ink has been spilled on these questions. In this essay I wish to investigate the answers that have been provided in international law. Two theses are advanced. First, there is a misunderstanding in international law about what legislation is. This can be seen, for instance, in the popular claim that the United Nations Security Council has begun to “legislate” on the international plane. The second thesis attempts to specify how this misunderstanding has come about; I suggest that international law writing tends to evince a more basic mistake about what law is. If these two theses are true, the literature on international law-making stands in need of revision.

Veronika Fikfak: English Courts and the 'Internalisation' of the European Convention of Human Rights? – Between Theory and Practice (37/2015)

This article examines the claims in literature that the recent caselaw of English courts has internalised the protections contained in the European Convention of Human Rights. Instead of applying the Human Rights Act, judges have sought to comply with the international obligations by having recourse to common law rights. These newly identified and recognised rights, it has been suggested, might provide a good basis for the fulfilment of the international obligations even if the UK pulls out of the Convention or in case of repeal of the HRA by Parliament. This paper seeks to examine the conditions and limits of the internalisation of the European Convention of Human Rights by English courts through the re-interpretation of the common law. It does so by comparing the practice of English courts to the theory of judicial internalisation which certain international scholars argue is an ideal manner of ensuring compliance with international law. In particular, I inquire into the three elements of internalisation: the idea of voluntary compliance; the idea that this internalisation occurs through dialogue with other actors in the international community rather than by reference to the political branches within the state; and finally the argument that ultimately the internalisation is seen as reshaping national interest in order for domestic law (and nation states) to acquire an international identity.

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