THE DEMISE OF "PARASITIC ACCESSORIAL LIABILITY": SUBSTANTIVE JUDICIAL LAW REFORM, NOT COMMON LAW HOUSEKEEPING

In Jogee and Ruddock, the Supreme Court/Privy Council decided that the law on secondary liability took a wrong turn in 1984 in the Privy Council's decision in Chan Wing-Siu. Chan Wing-Siu's contemplation/foresight-based fault element for secondary liability was alleged by the Supreme Court/Privy Council to have bucked a legal trend towards requiring that the secondary party intended to encourage or assist every one of the principal's offences. This article presents an alternative history of secondary liability that explains a wider selection of cases from 1553-1984 than were considered in Jogee and Ruddock. On this alternative account, Chan Wing-Siu was simply a more explicit and intellectually honest decision than its predecessors. If this alternative view of history is accepted, the Supreme Court/Privy Council's claim to be merely correcting (rather than substantively reforming) the law of secondary liability should be rejected. Doing so would make more critical a question that was side-stepped in Jogee and Ruddock, namely whether this reform should have been undertaken by the judiciary, rather than the legislature.