R v Jogee

Facts

In Jogee, the defendant was present with another man, Hirsi, who stabbed and killed Paul Fyfe after a confrontation at a house. Hirsi was the principal who inflicted the fatal injury, and the prosecution case against Jogee was that he had encouraged the attack. Ruddock was an appeal from Jamaica in which the defendant was convicted of murder as a participant in a joint enterprise.

History

Both defendants were convicted of murder as secondary parties after juries were directed on the foresight based doctrine laid down in Chan Wing-Siu v The Queen [1985] AC 168 and Powell and English [1999] 1 AC 1. Their appeals were dismissed in the courts below, and the two cases were heard together, the Supreme Court and the Privy Council sitting with the same panel.

Issue

Whether a person who participates in a joint criminal venture can be convicted as a secondary party to murder merely because he foresaw that the principal might commit murder or cause serious harm with the intent required for it, or whether intent to assist or encourage the crime is required.

Held

In Jogee the appeal was allowed and the murder conviction quashed. The court held that the law had taken a wrong turning in Chan Wing-Siu and Powell and English, restored the earlier common law position, and applied the same corrected law to the Privy Council appeal in Ruddock.

Ratio

• Secondary liability for a crime requires conduct which assists or encourages its commission and an intention to assist or encourage the principal to commit the crime, with knowledge of any facts necessary for it to be a crime; foresight that the principal might commit the crime is not itself the fault element.
• Conditional intent will suffice, so that a defendant who intends to assist the principal if the occasion arises, for example by using a weapon, may be liable for what then occurs; and foresight is a matter from which the jury may infer the necessary intent.
• A secondary party to murder must intend to assist or encourage the principal to act with intent to kill or cause really serious harm, and where the principal commits a different crime, the question is whether the secondary party intended to assist or encourage that crime.

The judgments

Key reasoning

• The court traced the history of the law of accessories from the Accessories and Abettors Act 1861 and the older common law, and concluded that the requirement was always one of intention to assist or encourage, which was lost when foresight became treated as sufficient.
• The Privy Council in Chan Wing-Siu had treated foresight as the basis of liability by analogy with cases of common purpose, but had not examined the principle of accessory liability and had relied on a mistaken view that the authorities required it.
• Because the doctrine had distorted the law and produced results out of line with principle, the court was prepared to depart from it even though it had been applied widely, and the Practice Statement of 1966 allowed departure from earlier decisions of the House of Lords.
• Where the principal commits a crime beyond what the defendant intended to encourage, the secondary party may still be liable for manslaughter if he took part in an unlawful act of violence in which a sober and reasonable person would have realised that some harm was likely to result.

Where it fits in the module

In the Complicity topic the case is the starting point of the modern law of secondary liability and joint enterprise, and it is used to test the relationship between the conduct and fault elements for accessories. It is read against Chan Wing-Siu, Powell and English and Bryce, and raises the debate about whether foresight should be enough for murder and whether the law needs a separate offence of participation.

Criticisms

• The court allowed foresight to serve as evidence of intent, but the result may leave the practical law much as before, since juries are likely to infer intent from foresight in most violent joint ventures.
• The retreat from foresight of the principal act leaves a gap for the defendant who knowingly joins a dangerous venture and is reckless as to death, who may now be convicted only of manslaughter, a result some regard as insufficiently reflecting culpability.
• The decision that the law took a wrong turning is strongly retrospective, and the later requirement of a substantial injustice for appeals means that defendants convicted under the older law may be left with convictions that the Supreme Court itself said were based on a misstatement of law.
• The reliance on conditional intent as the way to capture the defendant who is willing to go along with a more serious crime blurs the line between intention and mere foresight of a possibility.