Not guilty by association – Supreme Court UK and Privy Council landmark decision clarifies the mental element required for secondary criminal liability

R v Jogee and Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7 (18 February 2016)

It is a fundamental principle of criminal law in many jurisdictions that a person who assists or encourages another to commit a crime (an accessory) is guilty of the same offence as the principal offender. The case of Chan Wing-Siu v The Queen [1985] AC 168 introduced a new principle widening the application of the law of secondary liability whereby 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 nevertheless guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as they did. This principle is commonly referred to as ‘parasitic accessory liability’ or ‘joint enterprise liability’.

In a landmark decision handed down on 18 February 2016, the Supreme Court and the Privy Council jointly and unanimously overturned this principle, and in doing so re-set the law to the position pre-Chan Wing-Siu. The two appellants in the case, Jogee and Ruddock, were each convicted of murder in Jamaica after directions to the jury in which the trial judges sought to apply the principle from Chan Wing-Siu. The court quashed the murder convictions of both appellants.

The unanimous verdict is that the correct rule is that foresight is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage, which is the proper mental element for establishing secondary liability.

The decision corrects 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]. It will have a significant impact internationally, given the principle has been followed for the past 30 years in England, Wales and other common law jurisdictions such as Australia. It has been followed by the High Court of Australia on a number of occasions, including the decision of Gillard v The Queen (2003) 219 CLR 1.

Facts

Ruddock was convicted of murder after his co-offender slit a man’s throat during a robbery gone wrong. The other appellant, Jogee, was convicted of murder after he shouted words of encouragement to the principal offender from out the front of the home where the murder took place. In both cases, the respective courts in Jamaica held that foresight that the principal offender might have acted the way that they did was sufficient to establish murder.

The appellants asked the court to review the doctrine of parasitic accessory liability, and to hold that the court in Chan Wing-Siu took a wrong turn as did the cases that followed it. The basis of this argument was that the doctrine was based on a flawed reading of earlier authorities and questionable policy arguments. The respondents disputed this and argued that even if the court was persuaded that the courts took a wrong turn, it should be a matter for the legislature to decide whether to make any change.

Decision

Lord Hughes and Lord Toulson (with whom Lord Neuberger, Lady Hale and Lord Thomas agreed) engaged in an extensive review of the authorities in relation to ‘joint enterprise’ liability, leading up to Chan Wing-Siu and that case itself. While the principle had been followed by the Privy Council and House of Lords in the past, in overturning it their Honours reasoned that “secondary liability is an important part of the common law, and if a wrong turn has been taken it should be corrected” [82].

Their Honours concluded that the Chan Wing-Siu principle was introduced based on “an incomplete, and in some respects erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments” [3]. The error was to equate foresight with intent to assist, whereas the correct approach is to treat it as evidence of intent.

Furthermore, their Honours noted that:

Murder already has a relatively low mens rea threshold, and the Chan Wing-Siu principle extends liability for murder to a secondary party on the basis of a still lesser degree of culpability, namely foresight only of the possibility that the principal may commit murder. The rule brings a striking anomaly of requiring a lower mental threshold for guilt in the case of the accessory than in the case of the principal.

The individual facts of the appellants’ cases weren’t determinative in the Courts decision in relation to the Chan Wing-Siu principle however it dealt with them briefly and concluded that both appellants’ murder convictions should be quashed.

Commentary

This decision will have a substantial impact on criminal law development in many common law jurisdictions, given the principle laid down in Chan Wing-Siu has such wide following.

Subsequent to this decision, the law will return to the pre-Chan Wing-Siu position, namely that an accessory should be found guilty if it is proven that they encouraged or assisted the principal offender to commit the crime, and did so with the requisite mental element of the offence.

The court was careful not to open the floodgates following the decision, noting that correcting the law will not render all prior convictions that applied the doctrine in Chan Wing-Siu invalid. In many of those cases its application may not have had an effect on the outcome arrived at, and moreover, where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can only be set aside by seeking exceptional leave to appeal to the Court of Appeal out of time if exceptional injustice can be demonstrated.

The full text of R v Jogee and Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7 can be found here.

Loren Giles is a Graduate at King & Wood Mallesons.