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David Ormerod and Karl Laird examine where secondary liability and joint enterprise stand in law after Jogee
The decision of the Supreme Court and Privy Council in R v Jogee [2016] UKSC 8; Ruddock v The Queen [2016] UKPC 7 has unsurprisingly achieved considerable publicity and comment.
It is equally unsurprising that most of the comment has been so positive, given that the common law ‘joint enterprise’ doctrine the court was removing had been the subject of sustained and cogent criticism from academics, practitioners, members of the judiciary, campaign groups and others.
The decision clarifies both the bases of liability and the individual elements that must be required for proof of D’s liability as a secondary party.
Bases of liability
It is refreshing to have clarity on so many fundamental issues in a relatively concise and unanimous judgment:
The Supreme Court was influenced to make this change for many reasons. As a matter of policy, the court was not satisfied that over the last 30 years the harsher ‘parasitic accessory liability’ regime had served as a deterrent. (See Wilson and Ormerod ‘Simply Harsh to Fairly Simple’ [2015] Crim LR 3). As a matter of principle, it was wrong to treat D’s foresight of what P might do as anything more than evidence from which a jury could infer the presence of a requisite intention. It was this which steered the Privy Council into its wrong-turning in Chan Wing-Siu. The Privy Council had been wrong to adopt D’s foresight of P’s likely offences as being, of itself, sufficient mens rea for D. As a matter of law, the correct approach is to treat D’s foresight of P’s likely conduct as evidence of D’s intent. Moreover, as a matter of practice, the law was continuing to create difficulty for trial judges and to generate appeals. Nor was the Supreme Court convinced by the soundness of the policy arguments which had proved influential in R v Powell; R v Daniels [1999] 1 AC 1 [74 and 75].
Elements of D’s liability
In all secondary liability cases, D’s actus reus is satisfied by proof that he did acts to encourage and/or assist P to commit the offence [8]. That conduct may take many forms [89]; it is not necessary to prove D’s conduct caused P to commit the offence [12]. It needs to be made clear to the jury what conduct it is that D is alleged to have participated in and how. D’s conduct in assisting, encouraging, or causing P to commit the crime may take different forms. It will usually be in the form of words and/or conduct. Merely associating with P or being present at the scene of P’s crime will not be enough; but if D intended by associating with P or being present at the scene to assist/encourage/cause P to commit the crime (eg, by contributing to the force of numbers in a hostile confrontation, or letting P know that D was there to provide back-up if needed) then D would be guilty [11], [78], and [89].
D’s mens rea is satisfied by proof that: (i) D intended to assist or encourage P; and (ii) D intended that P would have the mens rea required for the offence; and (iii) D must have knowledge of any other ‘existing facts necessary’ for P’s conduct/intended conduct to be criminal [9], [16].
Points deserving emphasis or clarification
Conclusion
The overarching issue that arises from the judgment is what to do about those individuals who were convicted under the old law. The Supreme Court states in emphatic terms that it does not follow from the fact an individual was convicted under the old law that his conviction will now be quashed. As the Supreme Court points out, when a conviction is based upon the law as it applied at the time, the only option available to the defendant is to apply for exceptional leave to appeal. As the name suggests, this is not a routine matter. In the words of the Supreme Court, the Court of Appeal may grant leave ‘if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken’ [100]. In many cases an individual convicted under the old law may still be guilty of manslaughter. While the Supreme Court’s analysis of the law is undoubtedly correct in theory, it is clear the Court of Appeal will have to move swiftly to resolve these matters in practice. If the Court of Appeal is confident that a particular applicant would have been found guilty of manslaughter had the jury been directed under Jogee rather than the old law, the question remains whether there is a ‘substantial injustice’ based on being labelled and sentenced as a murderer. Under Sch 21 of the Criminal Justice Act 2003, the sentences for murder are much higher than they would be for manslaughter and impact for life on the offender. Will that significant difference in label and sentence constitute the ‘substantial injustice’ required for the grant of exceptional leave? To avoid a vast number of appeals the Court of Appeal may conclude not. ●
The views expressed are the authors’ personal views and not those of the Law Commission.
Contributors Prof David Ormerod QC is Law Commissioner for England and Wales and Karl Laird is lecturer in law at St John’s College Oxford.
It is equally unsurprising that most of the comment has been so positive, given that the common law ‘joint enterprise’ doctrine the court was removing had been the subject of sustained and cogent criticism from academics, practitioners, members of the judiciary, campaign groups and others.
The decision clarifies both the bases of liability and the individual elements that must be required for proof of D’s liability as a secondary party.
Bases of liability
It is refreshing to have clarity on so many fundamental issues in a relatively concise and unanimous judgment:
The Supreme Court was influenced to make this change for many reasons. As a matter of policy, the court was not satisfied that over the last 30 years the harsher ‘parasitic accessory liability’ regime had served as a deterrent. (See Wilson and Ormerod ‘Simply Harsh to Fairly Simple’ [2015] Crim LR 3). As a matter of principle, it was wrong to treat D’s foresight of what P might do as anything more than evidence from which a jury could infer the presence of a requisite intention. It was this which steered the Privy Council into its wrong-turning in Chan Wing-Siu. The Privy Council had been wrong to adopt D’s foresight of P’s likely offences as being, of itself, sufficient mens rea for D. As a matter of law, the correct approach is to treat D’s foresight of P’s likely conduct as evidence of D’s intent. Moreover, as a matter of practice, the law was continuing to create difficulty for trial judges and to generate appeals. Nor was the Supreme Court convinced by the soundness of the policy arguments which had proved influential in R v Powell; R v Daniels [1999] 1 AC 1 [74 and 75].
Elements of D’s liability
In all secondary liability cases, D’s actus reus is satisfied by proof that he did acts to encourage and/or assist P to commit the offence [8]. That conduct may take many forms [89]; it is not necessary to prove D’s conduct caused P to commit the offence [12]. It needs to be made clear to the jury what conduct it is that D is alleged to have participated in and how. D’s conduct in assisting, encouraging, or causing P to commit the crime may take different forms. It will usually be in the form of words and/or conduct. Merely associating with P or being present at the scene of P’s crime will not be enough; but if D intended by associating with P or being present at the scene to assist/encourage/cause P to commit the crime (eg, by contributing to the force of numbers in a hostile confrontation, or letting P know that D was there to provide back-up if needed) then D would be guilty [11], [78], and [89].
D’s mens rea is satisfied by proof that: (i) D intended to assist or encourage P; and (ii) D intended that P would have the mens rea required for the offence; and (iii) D must have knowledge of any other ‘existing facts necessary’ for P’s conduct/intended conduct to be criminal [9], [16].
Points deserving emphasis or clarification
Conclusion
The overarching issue that arises from the judgment is what to do about those individuals who were convicted under the old law. The Supreme Court states in emphatic terms that it does not follow from the fact an individual was convicted under the old law that his conviction will now be quashed. As the Supreme Court points out, when a conviction is based upon the law as it applied at the time, the only option available to the defendant is to apply for exceptional leave to appeal. As the name suggests, this is not a routine matter. In the words of the Supreme Court, the Court of Appeal may grant leave ‘if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken’ [100]. In many cases an individual convicted under the old law may still be guilty of manslaughter. While the Supreme Court’s analysis of the law is undoubtedly correct in theory, it is clear the Court of Appeal will have to move swiftly to resolve these matters in practice. If the Court of Appeal is confident that a particular applicant would have been found guilty of manslaughter had the jury been directed under Jogee rather than the old law, the question remains whether there is a ‘substantial injustice’ based on being labelled and sentenced as a murderer. Under Sch 21 of the Criminal Justice Act 2003, the sentences for murder are much higher than they would be for manslaughter and impact for life on the offender. Will that significant difference in label and sentence constitute the ‘substantial injustice’ required for the grant of exceptional leave? To avoid a vast number of appeals the Court of Appeal may conclude not. ●
The views expressed are the authors’ personal views and not those of the Law Commission.
Contributors Prof David Ormerod QC is Law Commissioner for England and Wales and Karl Laird is lecturer in law at St John’s College Oxford.
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