R v Jogee
| Jurisdiction | UK Non-devolved |
| Judge | Lord Neuberger,Lord Thomas,Lady Hale,Lord Hughes,Lord Toulson |
| Judgment Date | 18 February 2016 |
| Neutral Citation | [2016] UKPC 7 |
| Date | 18 February 2016 |
| Court | Privy Council |
[2016] UKPC 7
Lord Neuberger, President
Lady Hale, Deputy President
Lord Hughes
Lord Toulson
Lord Thomas
From the Court of Appeal of Jamaica
Appellant (Jogee)
Felicity Gerry QC Catarina Sjölin Adam Wagner Diarmuid Laffan
(Instructed by Defence Law)
Appellant (Ruddock)
Julian Knowles QC James Mehigan
(Instructed by Dorsey & Whitney (Europe) LLP)
Respondent
John McGuinness QC Duncan Atkinson
(Instructed by Crown Prosecution Service Appeals and Review Unit)
Respondent
Howard Stevens QC Rowan Pennington-Benton
(Instructed by Charles Russell Speechlys)
Intervener (Just for Kids Law)
Francis FitzGibbon QC Caoilfhionn Gallagher Joanne Cecil Daniella Waddoup
(Instructed by Just for Kids Law)
Intervener (Joint Enterprise Not Guilty by Association)
Timothy Moloney QC Jude Bunting
(Instructed by ITN Solicitors)
Heard on 27, 28 and 29 October 2015
Lord Hughes AND (with whom Lord Neuberger, Lady Hale and Lord Thomas agree)
In the language of the criminal law a person who assists or encourages another to commit a crime is known as an accessory or secondary party. The actual perpetrator is known as a principal, even if his role may be subordinate to that of others. It is a fundamental principle of the criminal law that the accessory is guilty of the same offence as the principal. The reason is not difficult to see. He shares the physical act because even if it was not his hand which struck the blow, ransacked the house, smuggled the drugs or forged the cheque, he has encouraged or assisted those physical acts. Similarly he shares the culpability precisely because he encouraged or assisted the offence. No one doubts that if the principal and the accessory are together engaged on, for example, an armed robbery of a bank, the accessory who keeps guard outside is as guilty of the robbery as the principal who enters with a shotgun and extracts the money from the staff by threat of violence. Nor does anyone doubt that the same principle can apply where, as sometimes happens, the accessory is nowhere near the scene of the crime. The accessory who funded the bank robbery or provided the gun for the purpose is as guilty as those who are at the scene. Sometimes it may be impossible for the prosecution to prove whether a defendant was a principal or an accessory, but that does not matter so long as it can prove that he participated in the crime either as one or as the other. These basic principles are long established and uncontroversial.
In the last 20 years a new term has entered the lexicon of criminal lawyers: parasitic accessory liability. The expression was coined by Professor Sir John Smith in a lecture later published in the Law Quarterly Review ( Criminal liability of accessories: law and law reform [1997] 113 LQR 453). He used the expression to describe a doctrine which had been laid down by the Privy Council in Chan Wing-Siu v The Queen [1985] AC 168 and developed in later cases, including most importantly the decision of the House of Lords in R v Powell and R v 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 appellants Jogee and Ruddock were each convicted of murder after directions to the jury in which the trial judges sought to apply the principle deriving from Chan Wing-Siu. In these appeals the court has been asked to review the doctrine of parasitic accessory liability and to hold that the court took a wrong turn in Chan Wing-Siu and the cases which have followed it. It is argued by the appellants that the doctrine is based on a flawed reading of earlier authorities and questionable policy arguments. The respondents dispute those propositions and argue that even if the court were now persuaded that the courts took a wrong turn, it should be a matter for legislatures to decide whether to make any change, since the law as laid down in Chan Wing-Siu has been in place in England and Wales and in other common law jurisdictions including Jamaica for 30 years. The two appeals, Jogee in the Supreme Court and Ruddock in the Judicial Committee of the Privy Council, were heard together.
The Accessories and Abettors Act 1861, section 8 (as amended), provides that:
"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."
For summary offences the corresponding provision is in section 44 of the Magistrates' Courts Act 1980.
In its original form section 8 of the 1861 Act referred to "any misdemeanour" rather than "any indictable offence". It was amended by the Criminal Law Act 1977 on the abolition of the previous distinction between felonies and misdemeanours. Prior to the abolition of that distinction, the substantive law about who could be convicted of an offence as a secondary party was the same for felonies and misdemeanours, but for historical reasons the terminology was different.
The purpose of section 8 was to simplify the procedure for the prosecution of secondary parties. It did not alter the substance of the law governing secondary liability. Its language was consistent with a line of earlier statutes. Foster commented in his Crown Law, re-published 3rd ed (1809), pp 130–131, that the precise language used in those statutes was not always identical but was to the same effect. The effect of the language of section 8 was accurately summarised by the Law Commission in its report on Participating in Crime (2007) (Law Com 305), paragraph 2.21:
"Disregarding 'procuring', it is generally accepted that these specified modes of involvement cover two types of conduct on the part of D, namely the provision of assistance and the provision of encouragement."
Although the distinction is not always made in the authorities, accessory liability requires proof of a conduct element accompanied by the necessary mental element. Each element can be stated in terms which sound beguilingly simple, but may not always be easy to apply.
The requisite conduct element is that D2 has encouraged or assisted the commission of the offence by D1.
Subject to the question whether a different rule applies to cases of parasitic accessory liability, the mental element in assisting or encouraging is an intention to assist or encourage the commission of the crime and this requires knowledge of any existing facts necessary for it to be criminal: National Coal Board v Gamble [1959] 1 QB 11, applied for example in Attorney General v Able [1984] QB 795, Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 and Director of Public Prosecutions for Northern Ireland v Maxwell [1978] 1 WLR 1350 per Lord Lowry at 1374G-1375E, approved in the House of Lords at 1356A; 1358F; 1359E; 1362H and echoed also at 1361D.
If the crime requires a particular intent, D2 must intend to assist or encourage D1 to act with such intent. D2's intention to assist D1 to commit the offence, and to act with whatever mental element is required of D1, will often be co-extensive on the facts with an intention by D2 that that offence be committed. Where that is so, it will be seen that many of the cases discuss D2's mental element simply in terms of intention to commit the offence. But there can be cases where D2 gives intentional assistance or encouragement to D1 to commit an offence and to act with the mental element required of him, but without D2 having a positive intent that the particular offence will be committed. That may be so, for example, where at the time that encouragement is given it remains uncertain what D1 might do; an arms supplier might be such a case.
With regard to the conduct element, the act of assistance or encouragement may be infinitely varied. Two recurrent situations need mention. Firstly, association between D2 and D1 may or may not involve assistance or encouragement. Secondly, the same is true of the presence of D2 at the scene when D1 perpetrates the crime. Both association and presence are likely to be very relevant evidence on the question whether assistance or encouragement was provided. Numbers often matter. Most people are bolder when supported or fortified by others than they are when alone. And something done by a group is often a good deal more effective than the same thing done by an individual alone. A great many crimes, especially of actual or threatened violence, are, whether planned or spontaneous, in fact encouraged or assisted by supporters present with the principal lending force to what he does. Nevertheless, neither association nor presence is necessarily proof of assistance or encouragement; it depends on the facts: see R v Coney (1882) 8 QBD 534, 540, 558.
Once encouragement or assistance is proved to have been given, the prosecution does not have to go so far as to prove that it had a positive effect on D1's conduct or on the outcome: R v Calhaem [1985] QB 808. In many cases that would be impossible to prove. There might, for example, have been many supporters encouraging D1 so that the encouragement of a single one of them could not be shown to have made a difference. The encouragement might have been given but ignored, yet the counselled offence committed. Conversely, there may be cases where anything said or done by D2 has faded to the...
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