Prosecuting Complicity
| DOI | 10.1177/0022018318761685 |
| Published date | 01 August 2018 |
| Date | 01 August 2018 |
| Subject Matter | Articles |
Article
Prosecuting Complicity: The
CPS Legal Guidance on
Secondary Liability
Dennis J. Baker
University of Surrey, UK
Wuhan University
Abstract
In this paperI try to outline the implicationsof the decision in R v Jogee for practice.I try to explain
what the substantive law now requires and how that should be implemented in practice. I argue
that particular careneeds to be taken so that the profession properlyunderstand and implement
the substantive law as recognised in R v. Jogee. I shall try to explain the conceptual distinction
between a fundamentally different act and a supervening act. A supervening act cancels out an
earlier act, but a fundamentally different act does not necessarily involve a cancelling out. Inten-
tional g.b.h. is a supervening act when the accessory only intendedthe perpetrator to perpetrate
an act resulting ina.b.h. The g.b.h. should cancel outthe a.b.h. since the perpetrator has departed
from theplan and perpetrated a differentact to what was originallyintended by the parties.Thus, it
is not possibleto reconcile the SupremeCourt’s obsequiousnesstowards the superveningact rule
with its finding that manslaughter can be an alternative to murder for accessories when the
perpetrator has inflicted g.b.h. resulting in V’s death, if the accessory intended a.b.h. be inflicted
upon V. Additionally, manslaughter is not a lesser included offence to murder and thus such a
conviction shouldnot be available where P perpetrates a murder not intended by the accessory;
instead, the accessory should be charged with the inchoate offence for attempting to encourage
the lesser crime. Itshall also be argued that conditionalintention is only an issue in certain factual
scenarios such as where it is not certain which crime will be perpetrated or where a crime is
intended upon somecontingency arising. Intention is intentionwhether it depends on a condition
or not. Finally,it will be argued the spontaneous outbreakof multi-handed violencecases will pose
great challenges as far as proof of intentional encouragement is concerned, but that can be
overcome simply by charging such cases under sections 44 or 45 of the Serious Crime Act 2007.
Keywords
Joint enterprise, complicity, fundamental different act maxim of evidence, deadly weapon
maxim of evidence, oblique intention, direct intention
Corresponding author:
Dennis J. Baker, University of Surrey, Guildford, UK.
E-mail: dennis.baker@surrey.ac.uk
The Journal of Criminal Law
2018, Vol. 82(4) 338–354
ªThe Author(s) 2018
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DOI: 10.1177/0022018318761685
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Introduction
The CPS has revised its ‘legal guidance’ on secondary liability (previously titled ‘Joint Enterprise’),
following the decision of the Supreme Court in RvJogee; Ruddock vThe Queen,
1
and has called a
consultation on the revised guidance. The guidance sets out the core principles of secondary liability, as
stated in RvJogee and the subsequent Court of Appeal cases on secondary liability, RvJohnson and
Others
2
and RvAnwar.
3
It is probably not surprising that the CPS has issued a consultation, because the
law has changed very substantially. The decision in Chan Wing-Siu vThe Queen
4
resulted not only in
later courts interpreting the mental element in complicity as mere foresight but also in those courts
developing a doctrine of extended joint enterprise. RvJogee
5
held that the mental element in complicity
prior to Chan Wing-Siu was intention and that the doctrine that became known as the extended joint
enterprise doctrine did not exist at common law in England and Wales prior to that decision. The effect
of the decision in RvJogee is that factual scenarios involving collateral crimes now have to be brought
within the purview of s. 8 of the Accessories and Abettors Act 1861 where the conduct element is
assistance or encouragement.
In this paper, I attempt to respond to some of the questions raised by the CPS in its consultation
concerning its new legal guidance on this subject. I shall try to make some substantive points about how
prosecutors should approach charging decisions post-Jogee. The CPS has published an interim guidance,
which it has sought views on as the basis of its consultation. It reports: ‘If the consultation results in
changes being made to this interim guidance, the legal guidance will be updated accordingly’. The CPS
consultation document provides guidance on how it currently thinks prosecutors should approach charg-
ing decisions in cases of secondary liability including those rare cases where conditional intent might be
an issue. It is important for barristers to have clear guidance since it is arguable the Chan Wing-Siu
doctrine emerged from the High Court of Australia’s decision in John vThe Queen,
6
which itself took a
wrong path due to the way counsel argued the case in the Supreme Court of New South Wales before it
went up to the High Court.
7
It is also important to be clear about what is meant by intention. The mental element in complicity is
once again (direct) intention. This may be inferred from evidence of foresight of virtual certainty. D1
must intend to assist or encourage D2 with the ulterior intention that D2 use his or her assistance (or be
encouraged by his or her encouragement) to perpetrate the anticipated target crime. D1 must intend D2 to
act with the requisite fault for the target crime. Nonetheless, in most cases (including murder cases), the
jury will not need a Woollin
8
type direction and will simply be asked to consider whether the accessory
intended the perpetrator to perpetrate the anticipated target crime.
The conduct element for complicity is aid, abet, counsel or procure
9
(i.e. an act of assistance or
encouragement). Hence, nothing short of an act of assistance or encouragement will satisfy the conduct
element for complicity.
10
1. [2016] 2 WLR 684.
2. [2016] EWCA Crim 1613.
3. [2016] EWCA Crim 551.
4. [1985] AC 168, 177.
5. [2016] 2 WLR 684; D. J. Baker, Reinterpreting Complicity and Inchoate Participation Offences (Routledge: Oxford, 2016),
ch. 2.
6. (1980) 143 C.L.R. 108. Cf. Giorgianni vR[1985] 156 CLR 473.
7. D. J. Baker, ‘The Doctrinal and Normative Vacuity of Hong Kong’s Joint Enterprise Doctrine’ (2017) 47(2) Hong Kong LJ 1.
8. See RvWoollin [1999] 1 AC 82.
9. Procurement is essentially limited to innocent agency cases.
10. See D. J. Baker, ‘Reinterpreting the Mental Element in Criminal Complicity: Change of Normative Position Theory Cannot
Rationalize the Current Law’ (2015) 40 L & Psychology Rev 121, 243; where I argued: ‘The law of common purpose
complicity took a wrong turn, because maxims of evidence such as foresight of probable and possible consequences, not only
mirror substantive criminal law fault elements, but also have been blurred with them for centuries’. (First published on SSRN
Baker 339
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