Accessorial Liability after Jogee

Beatrice Krebs

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509918904
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

In R v Jogee [2016] UKSC 8, the UK Supreme Court fundamentally changed the law of accessorial liability when it decided that the principles of joint enterprise had been misinterpreted for over 30 years. The Court abolished the head of liability known as parasitic accessory liability and replaced it with (re-stated) principles of assisting and encouraging. The judgment, widely reported and hailed as a 'moment of genuine legal history', sent shock waves around England and Wales as well as other common law jurisdictions that still operate 'parasitic' or 'extended' joint enterprise principles, and raised the hopes of hundreds of prisoners here and elsewhere who had been convicted under joint enterprise. This collection examines Jogee, subsequent Court of Appeal decisions and case law from other jurisdictions that re-considered their own joint enterprise principles in the wake of Jogee. Its chapters are authored by scholars and practitioners, all experts in the area of complicity, but each with their own experiences and views on the issues under debate. The result is the first comprehensive analysis of the implications of Jogee. The present volume is not just a source of reference for academics and practitioners; its aim is more ambitious in that it seeks to chart the way forward and to suggest solutions to problems created by Jogee for criminal law theory and practice.

1

Law Reform in the Supreme Court: The Abolition of Joint Enterprise Liability?

GR SULLIVAN

I.Introduction

Where persons D1 and D2 planned, and participated in the commission of but one crime, and did not commit any further offence arising out of the commission of the planned crime, any reference to their criminal project as a joint enterprise was never of any legal significance in determining who was a principal or secondary party to crime. When D2 holds a ladder enabling D1 to enter V’s house through an open window, then keeping watch while D1 steals, the conclusion is that D1 has committed burglary as a principal, with D2 his accessory and requires no reference to liability based on a joint enterprise. D2 clearly assisted the burglary carried out by D1 and intended to assist his burglary.¹

Typically, in undergraduate criminal law examination papers, such a burglary will not be uneventful: V, the householder, will awake and be killed by D1 in circumstances that clearly amount to murder on his part. Among the variants of this scenario will be situations where D2 foresaw that something like this might happen, but wished that it should not happen, and sought and received an assurance from D1 that it would not happen. However, D2 could not be absolutely sure D1 would not carry a knife, as he usually did, when breaking into people’s homes, and D2 knew that if D1 had a knife, he would use it if confronted during the burglary. Before the Supreme Court’s decision in Jogee² most answers would conclude that D2 was a murderer too, it being enough that he foresaw a risk (even a slight risk) that D1 would carry a knife and in the event of a confrontation with V, use the knife with intent at least to cause serious harm.

Post Jogee examination questions which include facts of this kind are tougher. Most answers would assume that parasitic accessory liability (PAL) was a thing of the past. The conditions for accessorial liability of the direct kind would have to be met, not merely in the case of D2’s involvement in the burglary, but also in the case of the murder. At this point the answers of even the strong examinees would begin to diverge. In the case of liability for direct complicity, there must be proof of actus reus³ with a mens rea of intention to assist or encourage D1’s principal offence. Easy to prove with respect to the burglary.

With that low hanging fruit safely picked, many answers would go on to assert that D2’s aversion to the prospect of violence to V, which he communicated ex ante to D1, stymies any suggestion that D2 encouraged, let alone assisted, D1’s violence. The same assurance might be offered with respect to the issue of mens rea:⁴ clearly nothing that D2 did was done in order to encourage or assist any violence that D1 might do to V. Nor did he foresee serious violence inflicted on V by D1 as a virtual certainty,⁵ because the burglary might be completed without violence to V. So, it would seem that D2 lacked an intent to encourage or assist violence in the sense of acting in order to encourage or assist violence or in the sense of knowing that violence on D1’s part was a virtual certainty. But on second thoughts, D2 did assist D1 to gain access to the place where D1 killed V. And he knew that if D1 had a knife he would use it, intending at the least to cause serious harm, should he consider such force to be necessary.⁶ Could it still be the case, post PAL, that the jury should be allowed to consider whether on this evidence they could legitimately find that D2 intentionally assisted a murder? Two important post Jogee decisions of the Court of Appeal suggest that this question can properly go to the jury on these facts. In Anwar,⁷ terminating rulings of no case to answer made in relation to charges of attempted murder and possession of a firearm with intent to commit robbery were reversed on the ground that the trial judge had taken too restrictive a view of what inferences relating to the defendants’ knowledge and intentions could be drawn from the evidence. A striking generalisation was made: ‘Thus the same facts which would have been used to support the inference of mens rea before the decision in Jogee will equally be used now.’⁸ In Johnson,⁹ a large number of convictions obtained under PAL were reviewed. All the convictions were upheld. In some of these cases, confirmation of the conviction sat more comfortably with the existence of PAL than its absence.¹⁰ Best, perhaps, to do an alternative question.

II.Interpreting Jogee: A First Attempt

One the face of it, what was decided in Jogee can be briefly stated.¹¹ PAL was abolished. Direct complicity is the only gateway to accessorial liability. This is the case whether we are dealing with crime A (the burglary in our householder death hypothetical example) or crime B, the murder arising out of the burglary. If joint enterprise liability has truly gone then, juridically, there is no longer crime A and crime B in the sense of conjoined elements of liability. The assistance or encouragement given to the principal D1 must be intended by D2 to assist or encourage the commission of all of D1’s crimes to which D2 is found a party. For each crime, there must be intentional assistance or encouragement given with knowledge of the circumstances that make D1’s crimes the type of crimes that they are. So, in our hypothetical burglary case, if D2 were to be charged as a party to D1’s murder of V, a conviction would seem unlikely.¹² He did not encourage D1’s violence nor did he in any direct or immediate sense assist that violence. So, the actus reus component of encouragement was not present and was only questionably present in the case of assistance¹³ and mens rea in the most obvious sense of direct intention would be missing. D2 did not participate in the burglary in order to assist or encourage violence by D1 against V.

But one must not be too quick to assume that D2 is off the hook for murder. Importantly, the Supreme Court re-asserted that complicity requires an intention to encourage or assist the crime of the principal with sufficient knowledge of the circumstances that make the principal’s crime the type of offence that it is.¹⁴ It was made clear that a conditional intent would suffice.¹⁵ When D2 stood at the foot of the ladder and kept watch, he was aware that given a conjunction of circumstances V would be seriously hurt or even killed by D1. If D1 was carrying a knife and if V did disturb him, he would use the knife against her. In the light of authority post Jogee¹⁶ a jury might be directed that they were free to find a conditional intent on the part of D2 to assist violence against V, merely on the basis of foresight of the risk of violence from D1. More will have to be said about conditional intent later. All that will be said for now is that a finding of conditional intent can be conceptually unconvincing when seeking to find, as in our hypothetical case, that D2 conditionally intended to encourage or assist violence on the part of D1, violence which stemmed from D1’s own free choice, a choice which D2 did nothing to influence, save in the sense of advising desistance from violence.

To be sure, if D1 and D2 had discussed what to do if V disturbed D1 and they agreed serious violence would be used, there would be a joint conditional intent that D1 would use violence against V. Further, there is no normative objection in allowing a jury to find D2 intended to assist a potential killing if he knew (rather than suspected) that D1 had a knife and would use the knife if disturbed by V.¹⁷ But in our case, D2 had no intentions of his own with regard to violence against V. He was merely aware of a risk of violence to V. As the risk fell short of a virtual certainty, there were no grounds for a finding of intent against D2, even on the questionable assumption that his participation in the burglary was a form of assistance to D1’s violence.

On this first reading of Jogee, at most D2 would be found guilty of manslaughter with respect to V’s death. This is a considerable change in the law but not too disturbing on these facts: although D2 cannot completely disassociate himself from V’s death, his contribution to that event and his culpability for it is of a much lower order than D1’s. But this case as described, with perfect knowledge of who did what and in what state of mind, is more typical of a scenario question in a law examination than a criminal trial. In the real world, both D1 and D2 may well claim to be the person who kept watch outside the house. Each will say that they had not the faintest idea that the person inside the house had a knife, let alone would use a knife. There may be clear evidence that V was killed by a person adept at using a knife to lethal effect. But the murder weapon may never be found. There may be no evidence that confirms which person was in the house rather than outside the house. The attraction of seeking a murder verdict against both men on the basis of participation in crime A with foresight of the risk of crime B is considerable.

If Jogee is to be read as abolishing PAL root and branch, one must be content with manslaughter verdicts as the optimum result in a case such as this and resigned to the possibility that not even that verdict may be obtainable.¹⁸ The central message from the case is that direct complicity is the only way to be guilty of the same crime as the principal. That means that there must be assistance or encouragement.¹⁹ That assistance or encouragement must be intended to assist or encourage the principal’s crime. Intention is clearly present when what D2 does is done in order to encourage or assist. That form of intention can accommodate contingency. If D1 and D2 agree that if X should happen then D1 will do Y, there is a shared conditional intent. A jury can also be instructed that they might find intent of the unconditional kind where D2 does something for his own reasons and is indifferent to the consequences, yet aware that it is virtually certain that he will assist D1’s crime. The notion of intent based on foresight of a virtual certainty arguably can be read to accommodate situations where D2 knows that Y will happen if X should occur even though he has not discussed or agreed to Y with D1. But it is problematic on this reading of Jogee to convict D2 of Y on the basis of mere foresight that that D1 might cause Y to happen should X happen. That would be to revert back to PAL. But aspects of PAL may still be with us.²⁰ To understand that we must go to Jogee and its background, and the cases that have come afterwards.

III.Jogee: Facts; Law and Judicial Method

A.Facts

One reason why the burglary/murder scenario was so popular with law examiners is that it signposted in the clearest terms that something needed to be said about secondary liability based on joint enterprise: there was obviously a crime A and a crime B. But during the long period of time when it mattered legally to prove a joint enterprise, in other circumstances it could be less obvious whether or not there was a joint enterprise. For instance, a group of young men, the Reds, are a noisy presence in a public space. Without pre-arrangement, another group of young men, the Blues, enter the same space. The groups exchange hostile stares. Suddenly, someone from the Blues rushes towards a Red and fatally stabs him. The groups rapidly disperse. The stabber cannot be identified. Assistance from PAL should not have been available to the prosecution.²¹ There is only a crime A. Events might have gone differently. Insults might have been exchanged, followed by jostling, leading to an exchange of punches and kicks (an assortment of crime As) and then crime B, the fatal stabbing of the Red by the unidentified Blue. Pre Jogee, PAL could now be put to work.

There was no general legal definition of a joint enterprise. It was generally accepted that joint enterprise doctrine only came into play if there was a crime ...

Table of contents

• Cover
• Dedication
• Title Page
• Acknowledgements
• Table of Contents
• List of Contributors
• Introduction
• 1. Law Reform in the Supreme Court: The Abolition of Joint Enterprise Liability?
• 2. What is the Theoretical Basis for Accomplice Liability?
• 3. Jogee, Parasitic Accessory Liability and Conditional Intention
• 4. A Step Away from Liability – Withdrawal and Fundamental Difference Post-Jogee
• 5. Vulnerability Theory and Joint Enterprise
• 6. Joint Enterprise Murder is Dead – Long Live Joint Enterprise Manslaughter?
• 7. The Queen v C, D and E: In the Supreme Court of Ruritania
• 8. Thinking Like an Accomplice: The Mens Rea for Complicity in US and English Law after Rosemond and Jogee
• 9. Joint Criminal Confusion: Exploring the Merits and Demerits of Joint Enterprise Liability
• 10. Extended Joint Criminal Enterprise – ‘Top-down’ or ‘Bottom-up’ Legal Reasoning?
• 11. Jogee – How Did it Happen?
• Index
• Copyright Page