R v Jogee [2016] UKSC 8

Facts

• Prior to R v Jogee [2016] UKSC 8, English law allowed conviction of accessories under joint enterprise where they foresaw the possibility of a principal committing a further crime.
• The doctrine, as established in Chan Wing-Siu v The Queen [1985] AC 168, permitted liability for those who merely foresaw the principal’s actions, even without intent.
• Jogee overturned this, holding that accessories must intend to assist or encourage the principal in committing the specific crime.
• The Court clarified that foresight is only evidence from which intent may be inferred, not a basis for liability by itself.
• The ruling set a higher threshold for convicting accessories, requiring proof of intentional participation aligned with the principal’s crime.
• The case has required reevaluation of numerous convictions and appeals based on the previous, more expansive joint enterprise doctrine.

Issues

1. Whether foresight of the principal's actions is sufficient to establish accessorial liability under English criminal law.
2. Whether intent to assist or encourage is necessary for convicting an accessory in joint criminal enterprise.
3. How conditional intent and actual participation affect the determination of liability for secondary parties.
4. The evidential role of knowledge of weapons or foresight in establishing intent for accessorial liability.

Decision

• The Supreme Court explicitly rejected the Chan Wing-Siu doctrine equating foresight with intent for accessorial liability.
• The Court held that to establish liability, an accessory must intend to assist or encourage the commission of the offense by the principal.
• Foresight may only serve as evidence of possible intent, not as proof of intent itself.
• It was clarified that knowledge of a weapon is not a requirement for accessorial liability; the focus is on actual intention to assist or encourage the crime.
• The decision set aside previous understandings that had allowed broader conviction of accessories on lesser mental fault.
• Subsequent cases, such as R v Anwar [2016] EWCA Crim 551 and R v Johnson (Lewis) [2016] EWCA Crim 1613, applied the new standard but found that the outcome may not differ if intent can still be inferred from the circumstances.

Legal Principles

• Accessorial liability requires that the accessory have an intention to assist or encourage the primary offender in the commission of the specific crime.
• Foresight of the commission of a crime is not sufficient for liability; it is merely evidence that may point to intent.
• Conditional intent is recognized: if an accessory intends to assist a crime under certain conditions, liability may follow if those conditions arise.
• Participation through acts of assisting or encouraging is necessary; passive presence is not enough.
• The accessory's knowledge of weapons is only one factor and not determinative of liability; subjective mens rea remains essential.
• The distinction between foresight and intent is central; liability aligns with individual culpability, not speculation about possible outcomes.

Conclusion

R v Jogee [2016] UKSC 8 fundamentally revised English law on accessorial liability, replacing the doctrine of liability based on foresight with one grounded in actual intention to assist or encourage the offense, thereby narrowing the circumstances in which accomplices can be found guilty under joint enterprise.