Supreme Court and Judicial Committee of the Privy Council Secondary Participation in Crime
| Author | Damian Warburton |
| Published date | 01 June 2016 |
| Date | 01 June 2016 |
| DOI | http://doi.org/10.1177/0022018316648427 |
| Subject Matter | Court of Appeal |
Supreme Court and Judicial Committee of the Privy
Council
Secondary Participation in Crime
RvJogee [2016] UKSC 8
Ruddock vThe Queen [2016] UKPC 7
Keywords
Murder, joint enterprise, parasitic accessory, contemplation, foresight, intention, precedent
In these unconnected conjoined appeals both appellants had been convicted of murder after trial, their
juries having been directed on the basis of what was widely accepted to be the law of joint enterprise.
Each had been present when a principal offender killed their respective victims, and each appellant had,
on the findings of their juries, given assistance or encouragement to those principals. The trial judge for
each had, as was to be expected at the time, directed the juries in a manner consistent with the Privy
Council authority of Chan Wing-Siu vThe Queen [1985] AC 168.
In the prosecution of Jogee, the trial judge directed the jury that D was guilty of murder if he had
encouraged the principal to attack the victim and had realised that the principal might kill with intent to
cause grievous bodily harm (at [104]). In the prosecution of Ruddock, the jury was directed that D was
liable for murder if he took part in the offence knowing there was a real possibility that the principal
‘might have a particular intention’ (at [114]). The subject of the appeal was what has been known to
lawyers for three decades as the ‘contemplation test’, under which a person may be liable as a secondary
party even if he did not intend the principal to commit the relevant offence; the question has been
whether the secondary party foresaw (that is to say, contemplated) that the principal might commit that
offence.
The judgment does not indicate if either trial judge reminded their jury that they must also find that D
had knowledge of the relevant facts that rendered the principal’s act criminal, but Lords Hughes and
Toulson described the direction in Jogee as ‘an orthodox direction in accordance with the Chan Wing Siu
principle’ (at [104]).
Since RvPowell; R vEnglish [1999] 1 AC 1, the courts have focused a great deal of attention on
whether any particular weapon that the principal actually used, where it differed from a weapon the
secondary party was aware might be used, was ‘fundamentally different’. In English the House had held
the knife used by the principal was fundamentally different from the wooden post that English himself
had used and was possibly all he foresaw his principal might use.
In the present appeal both appellants contended that the decision in Chan Wing-Siu was wrong insofar
as it sanctioned the contemplation test, and that the authorities following it on that point were therefore
also wrong.
HELD,ALLOWING THE APPEALS, the Board of the Judicial Committee of the Privy Council in Chan
Wing-Siu was indeed wrong to have ‘equate[d] foresight with intent to assist, as a matter of law; the
correct approach is to treat it as evidence of intent’. Consequently, all subsequent decisions that
relied upon the authority of Chan Wing-Siu were also wrong on that point, most significantly Rv
Powell; R vEnglish [1999] 1 AC 1 in the Appellate Committee of the House of Lords, which had
followed Chan Wing-Siu in affirming the contemplation test as being part of English law. The court
(at [87]) said that:
160 The Journal of Criminal Law 80(3)
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