Introduction
The case of R v Jogee [2016] UKSC 8 represents a significant shift in the understanding of accessorial liability within English criminal law. Prior to this ruling, the doctrine of joint enterprise allowed for individuals to be convicted as accessories to crimes they had foreseen, even if they did not intend those specific actions. The Supreme Court, in Jogee, revised this doctrine, establishing that an accessory must possess the intent to assist or encourage the principal offender in committing the crime. This judgment clarifies the mens rea, or mental state, required for accessorial liability, emphasizing the need for an actual intention to participate in the specific crime, rather than simply foreseeing its possibility. The technical principle at the core of this shift involves the distinction between foresight and intent, a distinction that had become blurred in previous case law. The ruling has had substantial implications for cases involving joint criminal activity, with a re-evaluation of the required elements for accessorial liability.
The Overturning of Chan Wing-Siu
The decision in R v Jogee explicitly rejected the principle established in Chan Wing-Siu v The Queen [1985] AC 168. Chan Wing-Siu had held that if an individual participating in a joint criminal act foresaw the possibility that a co-participant would commit a further crime, that individual could be held liable as an accessory for that further crime. This principle, known as parasitic accessory liability, equated foresight with the intent to assist. The Supreme Court in Jogee determined this was an incorrect application of common law. The Court’s reasoning explained that foresight is merely evidence that may, or may not, point towards intention, not intent itself. The Court specified that an accessory's liability should be determined by assessing whether they intended to assist or encourage the primary offender in carrying out the specific offense, a higher threshold than mere foresight. This critical reassessment corrected what the Supreme Court deemed a fundamental error in the prior interpretation of accessorial liability. The case therefore, provided a strict approach to mens rea in cases of joint enterprise.
The Jogee Ruling on Mens Rea
R v Jogee firmly established the required mens rea for accessorial liability. The Court articulated that the secondary party, D2, must have the intention to assist or encourage the commission of the crime by the primary party, D1. This intent, the ruling clarified, must align with the mental element of the specific offense committed by D1. The decision highlights the need for an actual intention to participate in the crime rather than simply predicting its occurrence. The Court referenced that if D1 and D2 have a common purpose to commit crime A, but D2 also has the conditional intent to assist D1 in crime B, should the need arise, then D2 can be liable for crime B. An example offered by the court included a bank robbery scenario where robbers may hope not to use weapons but still intend to do so if faced with resistance. The mens rea requirement, therefore, centers on a conscious decision to participate in the criminal act, with an understanding of the type of conduct involved.
Participation and Conditional Intent
Jogee also clarifies the requirement for participation in the crime to establish accessorial liability. The Court held that D2 must have, through their actions, assisted or encouraged the commission of the crime by D1. This element demonstrates the need for active involvement in the criminal conduct, distinguishing an accessory from a mere bystander. Furthermore, the ruling acknowledges the concept of conditional intent, recognizing that a secondary party may intend to assist or encourage the commission of a crime only if a certain condition is met. For example, if D2 intends to assist D1 in using a weapon if necessary during a robbery, then D2 can be held liable for the crime committed using the weapon. This clarification ensures that the criminal liability of accessories is aligned with the level of their intended engagement in the criminal action. R v Anwar [2016] EWCA Crim 551 illustrates this point, where the court inferred that the participants in a robbery knew the gun was loaded and intended that it be used, if needed.
Inference of Intent and Knowledge of Weapons
The decision in Jogee also examined the way a court may infer intent. The court stated that foresight by D2 that in the course of committing crime A, D1 might commit crime B may in appropriate cases justify drawing the conclusion that D2 had the necessary conditional intent that crime B would be committed should the occasion arise. This reinforces that intent is a separate requirement to foresight. Further, the Court addressed the issue of knowledge of weapons. The Court stated that the intention to assist in a crime of violence is not determined only by whether the accessory knows what kind of weapon the principal has in their possession. The ruling specifies that any knowledge or lack of knowledge that weapons are being carried is only evidence that should be taken into account when deciding what the intention of the accessory was. This highlights that mens rea is a subjective matter that depends on the specific circumstances of the case. R v Johnson (Lewis) [2016] EWCA Crim 1613, for example, highlights that knowledge of weapons is not essential to infer intent, as long as the accessory intends to assist with a crime of violence.
Post-Jogee Application
Following R v Jogee, there has been some uncertainty about how the new legal principle will affect the outcomes of criminal cases. Some commentators questioned whether the new ruling would change the approach of the courts in accessing accessorial liability, with many speculating that the outcomes would be similar due to the ability of the courts to infer intent from foresight. R v Anwar [2016] EWCA Crim 551, for instance, upheld convictions of attempted murder, even after the Jogee ruling, because it could be inferred that the accused men had the intent to use the weapon, should the need arise. Similarly, in R v Johnson (Lewis) [2016] EWCA Crim 1613, the court stated that the verdicts would likely be the same even after the Jogee ruling as the same facts previously used to infer mens rea could still be used to do so. This highlights that, although the law was changed, juries will still be able to infer an intent to assist from the facts.
Complicity Problem Example
To illustrate the principles, consider the example of Nicole and Omar, who agree to ask Piet for money, with Nicole threatening violence if Piet refuses, without using any violence. Nicole secretly hopes that the threat will cause Piet, who has a weak heart, to have a heart attack and die. Piet dies from a heart attack. Nicole is liable for murder, as she intended to cause grievous bodily harm to Piet which, due to the eggshell skull rule, resulted in death. Omar, who planned the robbery and knew that violence would be used as a threat, is liable as an accessory to robbery. However, he is not liable for murder as he did not intend that Nicole cause Piet harm, nor was he aware of Piet's condition or Nicole’s secret hope. Omar is liable for manslaughter, given he participated in an unlawful act which carried the risk of some harm, and death resulted. This example demonstrates that complicity liability requires the accessory to have the requisite intent to assist in the specific unlawful act committed.
Conclusion
The ruling in R v Jogee [2016] UKSC 8 significantly changed the legal landscape of accessorial liability in English law. The decision overruled the previously accepted principle in Chan Wing-Siu v The Queen [1985] AC 168 that equated foresight with intention. The ruling requires that a secondary party must intend to assist or encourage the commission of the specific crime by the primary offender. This requirement for a clear mens rea standard, alongside the need for active participation, ensures that accessorial liability aligns more closely with individual culpability. Post-Jogee case law, including R v Anwar [2016] EWCA Crim 551 and R v Johnson (Lewis) [2016] EWCA Crim 1613, demonstrate that while the legal test has changed, the facts which can be used to infer intention remains largely the same. The distinction between foresight and intention established in Jogee, therefore, acts to refine the law while not necessarily significantly impacting court outcomes.
