R v Jogee [2016] UKSC 8

Key point

  • Removed the doctrine of joint enterprise liability from English law: an accessory must have intended to assist in the commission of the principal offence, and not merely have foreseen it

Facts

  • The appeal concerned two cases with a similar fact pattern: D was convicted for a murder that was committed by another on the basis that D had foreseen that murder would be committed as part of a criminal joint enterprise
  • The Privy Council was asked to review the doctrine of joint enterprise first laid down in Chan Wing-siu v The Queen [1985] AC 168

Held (Privy Council)

  • Appeals allowed – the juries have been improperly directed as foresight should not be equated with intention to assist

Lords Hughes and Toulson

Rejection of Chan Wing-siu v The Queen [1985] AC 168

  • In Chan Wing-siu v The Queen [1985] AC 168, the Privy Council judgment elided foresight with intention to assist, and was based on an incomplete and erroneous reading of previous case law: [65], [79]
  • In the common law foresight is ordinarily no more than evidence from which intention is to be inferred, the Chan Wing-Siu principle extends liability for murder to a secondary party to a lower standard of culpability of foresight that the principal may commit murder without any need for intention to assist him to do so: [83]
  • ‘The rule brings the striking anomaly of requiring a lower mental threshold for guilt in the case of the accessory than in the case of the principal’: [84]
  • ‘The error was to equate foresight with intent to assist, as a matter of law; the correct approach is to treat it as evidence of intent’: [87]

Mens rea of accessorial liability

  • The requirements for accessorial liability are as follows:
    1. D2 was in fact a participant, that is, whether he assisted or encouraged the commission of the crime: [89]
    2. D2 must have an intention to assist or encourage that commission of the crime acting with whatever mental element the offence requires of D1: [90]
  • Where D1 and D2 have the common purpose to commit crime A, if D2  has the conditional intention to assist D1 in crime B when the need arises, D2 will be liable for crime B e.g., bank robbers might hope not to use guns but intend to do so if met with resistance: [92]

Inference of intent from foresight

  • Foresight by D2 that in the course of committing crime A, D1 might well commit crime B may in appropriate case justify drawing the conclusion that D2 had the necessary conditional intent that crime B should be committed, if the occasion arose: [94]

Knowledge of weapon

  • D2’s intention to assist in a crime of violence is not determined only by whether he knows what kind of weapon D1 has in his possession
  • Knowledge or ignorance that weapons generally, or a particular weapon, is carried by D1 will be evidence going to what the intention of D2 was, but it is evidence and no more: [98]

Commentary