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On appeal from: [2013] EWCA Crim 1433

The Supreme Court and the Privy Council unanimously allowed the appeals regarding challenges to the appellants’ convictions of joint enterprise for murder.

Both the appellants in the cases challenge their convictions of joint enterprise for murder, in particular the directions both their judges had given to the jury which focused on whether they believed the appellants knew that there was a possibility that their co-defendants might intend to cause serious harm or kill their victims and if they believed they were involved in the incidents leading up to the murder, i.e. the attack and the robbery. These directions derived from Chan Wing-Siu v The Queen [1985] 1 AC 168 and Regina v Powell and English [1999] 1 AC 1 and the Supreme Court and Privy Council had to decide whether the common law had taken a wrong turning in these cases.

The court unanimously ruled that Chan Wing-Siu and Powell and English did take a wrong turning and therefore the appeals should be allowed. It stated that the correct rule is that foresight is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage, which is the proper mental element for establishing secondary liability.

The Justices reasoned that these cases were only part of the history and important cases were not discussed. The decisions departed from the well-established rule that the mental element required of a secondary party in a crime is an intention to assist or encourage the principal to commit the crime. They also advanced arguments based on the need that co-adventurers in crimes which result in fatality should not escape conviction, without considering whether the secondary parties would generally be guilty of manslaughter in any event.

The court therefore concluded that the law must be set back on the correct footing which stood before Chan Wing-Siu. The mental element for secondary liability is intention to assist or encourage the crime. The court gave examples in their judgment of intention to assist to further clarify the law.

In relation to the present cases, the court stated that for Jogee it will ask for written submissions from both parties on whether there should be a re-trial for murder or whether the conviction for murder should be replaced by a conviction for manslaughter. In the case of Ruddock there were other, unrelated, misdirections. It will therefore also asks for written submissions from both sides, now that the correct position in law has been identified, as to what should be the appropriate disposal.

 

For judgment, please download: [2016] UKSC 8
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watching the hearing please visit: Supreme Court website