R v Jogee [2016] UKSC 8

The Supreme Court and Privy Council jointly reviewed the doctrine of parasitic accessory liability established in Chan Wing-Siu, holding that the courts had taken a wrong turn 30 years earlier. Foresight of a secondary offence is evidence of intent, not a substitute for it.

Facts

Two conjoined appeals were heard together concerning secondary liability for murder. In Jogee, the appellant and Hirsi spent an evening drinking and taking drugs together, becoming increasingly aggressive. After earlier threats at Naomi Reid’s house, they returned in the early hours of 10 June 2011. Hirsi entered armed with a kitchen knife while Jogee remained largely outside, striking a car with a bottle and shouting encouragement. Hirsi fatally stabbed Reid’s partner, Fyfe. Jogee was convicted of murder on the basis that he foresaw Hirsi might use the knife with intent to cause really serious harm.

In Ruddock, the appellant was convicted in Jamaica of the murder of a taxi driver, Pete Robinson, whose throat had been cut by his co-defendant Hudson during a robbery of his car. Ruddock allegedly admitted to police that he had tied the victim’s hands and feet but that Hudson cut his throat.

Issues

The central issue was whether the doctrine of parasitic accessory liability, as laid down in Chan Wing-Siu v The Queen [1985] AC 168 and developed in R v Powell and R v English [1999] 1 AC 1, was correctly decided. Specifically, whether foresight by a secondary party (D2) that the principal (D1) might commit a further offence (crime B) in the course of an agreed joint enterprise (crime A) was, by itself, sufficient mens rea to convict D2 of crime B.

Arguments

The appellants argued that Chan Wing-Siu was based on a flawed reading of earlier authorities and questionable policy reasoning, and that the doctrine should be overturned. The respondents contended that even if the courts had taken a wrong turn, the matter should be left to Parliament given that the doctrine had operated for 30 years across common law jurisdictions.

Judgment

The Court (Lord Hughes and Lord Toulson giving the joint judgment, with which Lord Neuberger, Lady Hale and Lord Thomas agreed) held that Chan Wing-Siu had introduced a new principle based on an incomplete and in some respects erroneous reading of prior case law.

The wrong turn

The Court conducted an extensive review of authorities from Foster’s Crown Law through 19th-century cases such as R v Collison (1831), R v Skeet (1866), and 20th-century authorities including R v Wesley Smith, R v Anderson and R v Morris and R v Reid. These established that a secondary party could only be guilty of murder if he had the mens rea for murder, namely intention to assist or cause death or grievous bodily harm. The Court found that Chan Wing-Siu wrongly elided “contemplation” with “authorisation”, treating foresight as legally equivalent to intent.

Reasons for departure

The Court gave five reasons for correcting the law: (1) a fuller analysis of authorities was now available; (2) the law was not well established and remained controversial; (3) if a wrong turn had been taken in an important area of common law, it should be corrected; (4) treating foresight as a test rather than evidence of intent was an anomalous departure resulting in over-extension of murder and reduction of manslaughter; and (5) the rule produced the anomaly of requiring a lower mental threshold for the accessory than the principal.

Restatement of principles

The correct approach is that foresight of what D1 might do is evidence from which intent to assist may be inferred, but is not itself the legal test. The mental element for secondary liability is intention to assist or encourage D1 to commit the offence, including with whatever intent the offence requires. Conditional intent suffices: where parties embark on a joint venture intending that violence be used if necessary, that is sufficient. Where death results from a violent attack without intent to cause death or really serious harm, the secondary party will be guilty of manslaughter, not murder. The concept of “fundamental departure” derived from English ceases to be the focus; the question is whether D2 intended to assist the crime charged.

Past convictions

Convictions reached by faithful application of Chan Wing-Siu are not automatically invalidated. Exceptional leave to appeal out of time will only be granted where substantial injustice is demonstrated, not merely because the law has now been declared mistaken.

Disposal

Both appeals were allowed. Jogee’s murder conviction could not stand; the Court invited written submissions on whether to order a retrial or substitute manslaughter. In Ruddock, the Privy Council found further defects in the summing up (failure to direct that participation in the robbery did not automatically make him party to the murder, and prejudicial reference to hearsay), and invited submissions on disposal.

Implications

The decision corrects what the Court identified as a 30-year wrong turn in the doctrine of secondary liability. Foresight is restored to its proper status as evidence of intent rather than a substitute for it. The decision realigns common law accessory liability with the approach Parliament took in section 8 of the Criminal Justice Act 1967 and sections 44–45 of the Serious Crime Act 2007.

The ruling has significant practical implications for the prosecution of group violence cases, particularly those previously prosecuted under so-called “joint enterprise” liability. It clarifies that mere association or presence is not sufficient, and that what matters is whether D2 intended to assist or encourage the crime. The Court was, however, careful to limit the impact on past convictions, requiring “substantial injustice” before leave to appeal out of time would be granted.

The decision matters to prosecutors, defence practitioners, and trial judges who must now direct juries on the proper distinction between intent and foresight, and to defendants whose liability for serious offences such as murder previously turned on foresight alone. The qualification in respect of an “overwhelming supervening act” is preserved, as is the availability of manslaughter where a secondary party participates in unlawful violence resulting in death without the mens rea for murder.

Verdict: Both appeals were allowed. The Supreme Court and Privy Council jointly held that the doctrine of parasitic accessory liability established in Chan Wing-Siu was wrongly decided; foresight of a possible further offence is evidence of, but not a substitute for, the intent required for secondary liability. Jogee’s murder conviction was quashed, with submissions invited on retrial or substitution of manslaughter. In Ruddock, the appeal was allowed, with submissions invited on disposal.

Source: R v Jogee [2016] UKSC 8