From LawBlog2016

Andrew Ashworth describes the central question around joint enterprise in this way:

What is the proper scope of criminal liability: how much involvement should be necessary, as a minimum? (Asworth, Principles of Criminal Law (Sixth Edition)).

Section 8 of the Accessories and Abetters Act 1861, as amended by the Criminal Law Act 1977 reads as follows:

Whosoever shall aid, abet, counsel or procure the commission of any indictable offence … shall be liable to be tried, indicted and punished as a principal offender.

However, this does not lead us all the way. What level of involvement is needed, as a minimum, for an accessory to a crime to be guilty of this offence? The UK Supreme Court has now answered this question, overturning thirty years of case law on joint enterprise in R v Jogee (2016). The old rule, as laid down by the Privy Council opinion in Chan Wing- Siu v The Queen [1985] AC 168, as explained by Lord Hughes and Lord Toulson in Jogee was as follows (at [2]):

… 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 had foreseen the possibility that D1 might act as he did. D2’s foresight of that possibility plus his continuation in the enterprise to commit crime A were held sufficient in law to bring crime B within the scope of the conduct for which he is criminally liable, whether or not he intended it.

In short, the necessary and sufficient elements of joint enterprise before Jogee were that the accessory had foresight that the principal might commit the crime that he did. This principle has been applied since 1985 and was affirmed at the highest level in R v Powell and R v English [1999] 1 AC 1.

This rule had introduced an anomaly to the law: whereas it was not sufficient for the principal to merely foresee that his act would cause death or GBH (he must actually intend to cause death or GBH) it would be sufficient for the secondary party to foresee that possibility for him or her to be guilty of the same offence. This illogicality has been answered by “practical and policy” arguments (see Lord Hutton and Lord Steyn in Powell at 19 and 13 respectively).

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The case of Jogee concerned the murder of an ex-police officer by his friend, Mohammed Hirsi. Hirsi was convicted of murder and Jogee was found guilty of the same for encouraging Hirsi to harm the victim from the doorstep (at [101]-[102]). Jogee has argued that mere foresight of the possibility that Hirsi might commit murder should not be enough to found his conviction.

The case was heard as a joint appeal alongside the Jamaican case of Ruddock. Ruddock was part of the murder of the victim, a tax-driver, in the course of attempted robbery of his vehicle. It was alleged that R had not committed the murder himself, but had tied the hands and feet of the deceased (at [110]). The judge in this case applied the principle in Chan Wing- Siu, which if wrong, would be reason to allow the appeal.

The Supreme Court held that Chan Wing- Siu misapplied and misinterpreted the earlier case-law. The Privy Council had therefore introduced a new principle, not merely articulated an existing one (at [62]-[64]). Further, the Court held that the Pricy Council had elided “authorisation” with “foresight” of the principal’s crime. Continued participation in a crime with foresight is strong evidence of intention, but not conclusive of it (at [66]). Similarly, the Court held Lord Hutton in Powell had misapplied the case of Wesley Smith which, in fact, requires intention, not mere foresight, for any conviction for murder (at [28]):

Only he who intended that unlawful and grievous bodily harm should be done is guilty of murder. He who intended only that the victim should be unlawfully hit and hurt will be guilty of manslaughter if death results.

As the Supreme Court notes, Wesley Smith does not support the principle in Chan Wing- Siu and Powell but is contrary to it (at [71]). There are no strong policy reasons why the accessory who foresees and participates in a crime must be guilty of murder, and not manslaughter. The argument in Chan Wing- Siu falls apart as such conduct would not go un-punished and un-deterred (at [74]).

One argument raised against reversing Chan Wing- Siu was that this ought to be a job for Parliament. Two comments were made in answer to this. Firstly, joint enterprise is a creation of common law (put into Statute in 1861) but erroneously widened by the courts in Chan Wing- Siu which provides a strong justification for judicial correction. Secondly, Parliament has legislated in relation to inchoate offences in the Serious Crime Act 2007 which requires intention, not mere foresight (at [85]-[86]).

Restatement of the principles:

The Supreme Court took the opportunity not only to disapprove of Chan Wing- Siu but to restate the law in its correct form:

1. It is necessary to prove that the defendant participated in the crime in some way

2. “Whether the accessory intended to encourage or assist D1 to commit the crime, acting with whatever mental element the offence requires of D1”

3. Where there is an “agreed common purpose” there may be “conditional intent”. The question in such cases is whether “it was within the scope of the plan to which D2 gave his assent and intentional support”

4. “If a person is a party to a violent attack on another, without an intent to assist in the causing of death or really serious harm, but the violence escalates and results in death, he will be not guilty of murder but guilty of manslaughter” (at [96]).

5. If there are subsequent, supervening circumstances which render the act of assistance of the defendant merely part of the history then he will not be criminally responsible for the death (at [97] as recognised in Wesley Smith, Anderson and Morris and Reid).

Thus, the Supreme Court has put right what has been a misinterpretation of the law which has resulted in many unsatisfactory and unfair consequences. The law is now in a much more principled and clear state. In some exceptional cases defendants convicted under the rule in Chan Wing- Siu may be able to apply to the Court of Appeal where there has been “substantial injustice” but not merely where the law, as mistaken as it was, had been applied (at [100]). As for Jogee, the Supreme Court has invited submissions from the parties as to its next steps, whether to quash the conviction for murder and order a re-trial or to substitute it for manslaughter, which Jogee was guilty of, “at the least” (at [107]). The Court also identified in Ruddock a number of defects in the judge’s directions, but ultimately the mistake application of Chan Wing- Siu was sufficient to allow the appeal (at [117]-[120]).

To view the official ruling go to: http://ukscblog.com/case-preview-r-v-jogee-ruddock-v-the-queen-jamaica/

The above ruling could affect past rulings here in the Cayman Islands says local criminal attorney Peter Polack.

“In view of this development,” he said, “ the chief officer of the relevant portfolio, Jacqui Wilson, the solicitor general, will surely conduct a prompt review of any affected cases and advise the public of the outcome.”

IMAGE: Supreme Court UK