In a long-awaited and unusual joint judgment of two peak courts, the UK Supreme Court and the Privy Council, five judges yesterday ruled that the common law took a ‘wrong turn’ on the criminal law of complicity at least 19 years ago.The courts heard appeals by people convicted of murder after their partners in crimes –  respectively, an English domestic assault and a Jamaican taxi robbery –  instead stabbed the intended victims. At issue were rulings by the Privy Council in 1985 and the House of Lords in 1997, building on decisions by Australia’s High Court from 1980,  that such defendants could be convicted of murder if they were merely aware that their accomplices ‘might’ murder someone in the course of another crime. Yesterday’s unanimous judgment found that the twin decisions misunderstood the earlier authority, disregarded principle and, most disturbingly, ‘bring the striking anomaly of requiring a lower mental threshold for guilt in the case of the accessory’ – the accomplices’ awareness of the possibility of a murder -‘ than in the case of the principal’- the stabbers’ intent to cause serious harm. Accordingly, they overruled the 1985 and 1997 decisions, detailed a new narrower standard for liability and outlined ground rules for reviewing decades of potentially wrong convictions.

But yesterday’s ruling does not apply in Australia. Continue reading →