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Alex Davidson PhotoOn 18 February 2016, the Supreme Court handed down its much awaited judgment in the appeal of R v Jogee [2013] EWCA Crim 1433, which was consolidated with the Privy Council appeal of Ruddock v The Queen JCPC 2015/0020. The Court, unanimously allowing the appeal, has marked a judicial shift from 32 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] 1 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, practitioners 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.

It is important to note from the outset that, pursuant to section 4(2) of the Contempt of Court Act 1981, reporting restrictions apply regarding the publication of certain facts surrounding R v Jogee, however, this does not extend to academic discussion or law reporting of the Court’s judgment.

 

Supreme Court decision

In essence, the Court was asked to review the doctrine of PAL, and to consider whether 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 intention. 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, not intended.

The Court delivered a unanimous judgment, reviewing nearly 500 years of previous law and documenting the development and gradual shift of joint enterprise liability [4] – [60]. From this, the Court held that Chan Wing-Siu laid down a new principle, eliding foresight with intent, which was untenable to hold based on previous authority [62] – [63]. The correct approach, the Supreme Court held, is that foresight is evidence of an intention to assist a primary offender in furtherance of crime B, however, it is not conclusive of intent [66]. 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.” [79].

Following the analysis of case law, the Court went on to restate the correct principles of law prior to this erroneous tangent [88] – [99]. 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 separate limb of joint enterprise liability has now been severed, leaving two forms of secondary liability: firstly, as a principal or joint principal, and, secondly, as an accessory under the Accessories and Abettors Act 1861. The overarching consequence of R v Jogee is that the mental element for accessories has now been brought back into line with that which is required by principal 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 [100]. 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. This caution has been recapitulated in R v Anwar & Ors [2016] EWCA Crim 551, the first Court of Appeal judgment to consider R v Jogee, in which Sir Brian Leveson P observed that “the evidential requirements justifying a decision that there is a case to answer are likely to be the same even if, applying the facts to the different directions in law, the jury might reach a different conclusion.” Thus, the same evidence relied upon to infer foresight prior to R v Jogee may equally be relied upon now to infer the requisite intent.

 

The extent to which the law is clarified

William Wilson and David Ormerod 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.”[1] The Court emphasised that those concerned with criminal justice are entitled to expect a clear statement of the law [87]. 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 [81].

The language of the judgment is also noteworthy. William Wilson and David Ormerod 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.[2] 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” [26], [78], [92], a phase suggested by Wilson and Ormerod QC, indicative perhaps of the Court’s intention to prevent undesirable elements of the previous law returning.

Post-Jogee, another concern, articulated by Karl Laird and David Ormerod QC, is the lack of clarity regarding the level of foresight required to infer intent by an accessory following the shift of foresight from a substantive to an evidential test.[3] This is particularly pertinent when considering that, for a principal offender in the case of murder, the requisite threshold to infer intent will be foresight of virtual certainty, as per R v Woollin [1998] UKHL 28. Thus, if the respective thresholds of principal and accessory are not clarified, this may lead to a reversion back to the unsatisfactory state of law previously occupied where there is a lower threshold to establish criminal liability in respect of an accessory than that of the principal.

As noted by the appellants, another 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 position 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” [97]. Notwithstanding this elucidation by the Court, the passage still does little to clarify what would constitute an “overwhelming supervening act”.

 

The extent to which the law can be regarded as fair

PAL 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 previous 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 required by accessories to the same level as principal offenders, the Supreme Court has signalled its intention to prevent further injustices, whereby individuals lacking the requisite intent have been handed life sentences for committing the most serious of crimes. The judgment must also be viewed through the lens of fair labelling, as now juries will have a wider scope, when determining a defendant’s intent, to classify conduct as either murder or manslaughter, allowing convictions to better reflect public expectations of justice.

It is also noteworthy that the Court, when restating the correct principles governing liability, did not alter the position surrounding cases where it is unclear whether the defendant was a principal or accessory [88]. In such cases, the prosecution need only prove that the defendant possessed the requisite mens rea and caused the end result, be it as a principal or accessory. This principle, restated in R v Giannetto [1997] 1 Cr App R 1, has attracted strong criticism on the grounds that the dissimilarity between principal and accessory is one of strikingly different factual positions, thereby breaching the cardinal principle that the jury must be agreed on the basis on which they find a defendant guilty. In such cases, however, where the legal definition of the crime itself does not distinguish between the positions of principal and accessory, both ingredients of an offence can nonetheless be satisfied: that the defendant has caused, by whatever means, and intended harm.

The applicants also submitted that the incoherence of PAL breaches the principle of legality, reflected in ECHR, art.7, that an individual ought to have sufficient certainty as to what conduct will attract 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 ensure that the precise contours of criminal venture liability are readily ascertainable.

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.[4] 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 criminal venture liability.

 

Conclusion

The judgment ought to be rightly lauded for not only taking the step to clarify the previous law, but to reform secondary liability to meet public expectations of justice. It is nonetheless important to understand that this case marks the beginning, rather than the end, of the process to correct the law: those looking to appeal must be properly advised, juries tasked with a greater burden must be properly directed and, above all, the principles laid down by the Court must be universally applied. As the first test cases make their way through the courts, we will soon see the contours of criminal venture liability emerge.

This is a revised version of a post that first appeared on the Corker Binning Blog.

 

About the author: Alex is a paralegal at Corker Binning, where his areas of work include regulatory investigations, financial crime, international crime and general criminal matters. Alex is soon to join the Law Commission of England and Wales as a Research Assistant.

[1] W. Wilson and D. Ormerod, “Simply Harsh to Fairly Simple: Joint Enterprise Reform” (2015) Criminal Law Review 3, p.4.

[2] Ibid., 21-22.

[3] K. Laird and D. Ormerod, “Jogee: not the end of a legal saga but the start of one?” (2016) Criminal Law Review 8, pp.543-549.

[4] The intervener submissions drew attention to the research of Dr. Dennis Eady and JENGbA cited by the Bureau of Investigative Journalism at p. 29 of its report: “Perceptions of People Maintaining Unjust Conviction under Joint Enterprise Law” (June 2013).