On 18 February 2016, the Supreme Court handed down its much awaited judgment in the appeal of R v Jogee, which was consolidated with the Privy Council case of R v Ruddock. The Court, unanimously allowing the appeal, has marked a judicial shift from over 30 years of previous law. The appeals were brought by two individuals convicted under the law of ‘parasitic accessorial liability’ (‘PAL’), a doctrine notoriously replete with controversy.

The result of this invidious doctrine, as formulated in Chan Wing-Siu v The Queen [1985] AC 168, meant that “if two people set out to commit an offence (crime A), and in the course of that joint enterprise, one of them (D1) commits another offence (crime B), the second person (D2) is guilty as an accessory to crime B if he has foreseen the possibility that D1 might act as he did.”

Academics, judges and legal reform groups have long criticised PAL as both appallingly unclear and manifestly unfair, which has now culminated in a clear indication that the court felt duty-bound to clarify the law. This article will consider, firstly, the implications of the judgment for future cases concerning joint enterprise liability; secondly, the extent to which the judgment clarifies the law; and thirdly, whether the law can now be regarded as fair.

Background facts

During the evening of 9 June 2011, Jogee and his friend Hirsi visited the house of Naomi Reid on several occasions, following the consumption of alcohol and cocaine. During the third visit, whilst Jogee waited outside, Hirsi fatally stabbed Naomi Reid’s boyfriend, Paul Fyfe, with a knife from the kitchen. During the stabbing, Jogee remained outside the house; however, he was known to be egging Hirsi on to do something about Fyfe.

Jogee, as a secondary offender, was convicted of murder on the basis of joint enterprise liability, namely that he had encouraged the primary offender, Hirsi, to cause harm to the victim, Paul Fyfe, with the necessary foresight that it was a possibility that the knife might be used by Hirsi with the intention of causing at least serious bodily harm. This, as was described by the Supreme Court, was an orthodox direction in line with the Chan Wing-Siu principle. Jogee appealed, amongst other grounds, that the trial judge incorrectly directed the jury on the level of foresight required by the appellant as a secondary offender. The Court of Appeal dismissed the appeal.

Supreme Court decision

The Court was essentially asked to review the doctrine of PAL, and to hold that the court took a wrong turn in Chan Wing-Siu and the cases which subsequently followed. The charity Just for Kids Law (‘JfKL’) and campaign group Joint Enterprise Not Guilty by Association (‘JENGbA’), both of whom have long campaigned against the injustices of PAL, were granted leave to intervene.

The appellants submitted that PAL over criminalised individuals by conflating foresight with authorisation. This, in turn, lightened the burden for the prosecution, who needed only to establish that the possibility of harm was foreseen by the secondary offender.

The court delivered a unanimous judgment, reviewing nearly 500 years of law and documenting the development and gradual shift of joint enterprise liability. From this, the court determined that Chan Wing-Siu laid down a new principle, merging foresight with intention, which was untenable to hold based on previous authority. Instead, the Supreme Court held that the correct approach is that foresight is evidence of intent to assist a primary offender in furtherance of crime B, however, it is not conclusive of it. Chan Wing-Siu, therefore, formulated a principle “based on an incomplete, and in some respects erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments.”

Following the analysis of case law, the court went on to restate the correct principles prior to this erroneous tangent. The court held that the mens rea in cases of alleged secondary participation is that the accessory intended, be it conditionally or otherwise, to encourage or assist D1 to commit the crime, acting with whatever mental element the offence requested of D1. The court then went on to elucidate how intent might be inferred in the scenarios of prior joint criminal ventures, spontaneous outbreaks of multi-handed violence, escalating violence which results in death and cases of indeterminable weaponry.

Implications of the judgment

The overarching consequence of the judgment is that the mental element for accessories has now been brought back into line with that which is required by principle offenders, prior to Chan Wing-Siu. The mere existence of foresight is no longer conclusive of guilt. A properly directed jury will instead be informed that foresight is evidence upon which intent may be inferred. This marks a huge sea change in the burden for the prosecution, by which defendants may no longer find themselves convicted for the most serious of crimes based on dubious evidence of participation.

The court made clear, however, that putting the law right does not render invalid those convicted under the previously erroneous law. It does not follow, therefore, that an individual convicted under the previous law would have been acquitted had the law been correctly applied; the facts which led juries to find foresight may now suffice as evidence upon which to infer intent. Two consequences flow from this: those convicted ought not to expect appeals to be readily allowed, and those who appeal to the Court of Appeal out of time may do so only if substantial injustice can be demonstrated.

The extent to which law is clarified

William Wilson and David Omerod QC wrote that “[a] striking illustration of the unsatisfactory state of the law is that we cannot confidently describe the precise scope of joint enterprise liability”. The court emphasised that those concerned with criminal justice are entitled to expect a clear statement of the law. In this regard, it is hoped that the judgment will bring an end to the frequency of appeals concerning PAL, an issue which the court itself drew attention to in its judgment.

The language of the judgment is also noteworthy. Wilson and Omerod QC argued that there remains a real risk of unsatisfactory elements of the previous law creeping back in by the phrase ‘joint enterprise’ remaining part of the legal lexicon. This, they argued, justified recourse to a judicial prohibition on the use of the term ‘joint enterprise’. Interestingly, the court opted for the phrase “criminal venture”, a phase suggested by Wilson and Omerod QC, indicative perhaps of the court’s intention to prevent elements of the previous law returning.

As noted by the appellants, a worrying indictment of the PAL doctrine is that the only route out of liability is the ill-defined ‘fundamental difference’ rule, which leads to the unsatisfactory state that to avail oneself of culpability requires consideration of an equally incoherent doctrine. The court, whilst touching only briefly on the rule, nonetheless clarified its high threshold, requiring an “overwhelming supervening act by the perpetrator which nobody in the defendant’s shoes could have contemplated might happen and is of such a character as to relegate his acts to history”.

The extent to which the law can be regarded as fair

The law has been criticised as unfair on a number of grounds. During proceedings, the appellants emphasised that the overriding objective of the law ought to be justice, not prosecutorial convenience or judicial reputation. It is evident that the doctrinal basis of PAL, as borne out by the authorities, was to cast a wide net over those involved in criminal ventures, particularly those caught up in gang-related violence. By restoring the level of mental culpability to the same as principle offenders, however, the Supreme Court has tipped the scales back in favour of justice, preventing the prosecution from convicting individuals who are neither present when a crime occurs nor have the requisite intent.

The applicants also submitted that the incoherence of PAL breaches the principle of legality, reflected in Article 7 of the European Convention on Human Rights, that individual ought to have sufficient certainty of that which warrants criminal liability. The applicant drew attention to the particularly nebulous concepts of ‘participation’, ‘foresight’ and ‘withdrawal’. To this end, the court evidenced a clear intention to adopt a uniform approach in its use of terminology, which must now be followed by lower courts to clarify what conduct will attract criminal liability.

Lacking from the court’s judgment was discussion regarding the written submissions made on behalf of JfKL and JENGbA, which demonstrated the ways in which the shortcomings of PAL were compounded when applied to children and young people. The empirical research of conviction rates, provided by JfKL, illustrated that the law disproportionately affected young people caught up in gang-related violence, which suggests considering responses other than recourse to the criminal justice system to rehabilitate. To this end, it seems that young people will likely remain the key audience of joint enterprise liability.

Conclusion

The judgment ought to be rightly lauded for not only taking the step to clarify the previous law, but to re-define it to meet public expectations of justice. The judgment also makes clear that those considering appeal should do so ensuring that they are properly advised on the strengths of their case.