There have been few occasions in the life the Supreme Court when its judgments provoke front page news. But yesterday was one of them.
The cause was the pronouncement, in the case of R v Jogee & Ruddock [2016] UKSC 8, that for 32 years the law relating to some cases of joint enterprise had been incorrectly applied.
The point in issue was the way in which the law ascribed criminal liability to secondary parties in very particular, narrowly drawn, circumstances.
In Jogee the Appellant challenged the settled view about the liability of secondary parties that had been established in Chan Wing Siu v The Queen [1985] 1 AC, and confirmed in R v Powell & English [1999] 1 AC 1.
In Chan Wing-Siu it was held 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 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.
The injustice that arose out of this state-of-affairs was that D2 could be guilty of crime B even if he didn’t assist D1 at all. In their review of the law the Supreme Court Justices have decided that these earlier decisions departed from the well-established rule that the mental element required of a secondary party is an intention to assist or encourage the principal to commit the crime. The law, it was held, had taken a wrong turn.
That is to say, people who were convicted of offences based around their ‘parasitical criminal liability’ may have an argument that they ought not to have been convicted.
The new position following Jogee will be as follows:
It will remain relevant to enquire in most cases whether the principal and secondary party shared a common criminal purpose, for often this will demonstrate the secondary party’s intention to assist. The error was to treat foresight of crime B as automatic authorisation of it, whereas the correct rule is that foresight is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage. It is a question for the jury in every case whether the intention to assist or encourage is shown
Our solicitor colleagues will doubtless be reviewing their caseload to identify those cases where grounds of appeal might lie, in the light of this significant change. They can be assured that Lincoln House will be ready to help with enquiries.