Criminal Seminar

Accessorial liability in criminal law after

R v Jogee

Tuesday 25 October 2016

James ParryChair, Criminal Law Committee

Professor David Ormerod QClaw commissioner for England and Wales

Joint Enterprise 2016

The “old law” • D liable as a joint principal if he committed the

actus reus of the offence with mens rea

• D liable as an aider, abetter, counsellor or procurer of P committing an offence or offences where – D assisted/encouraged the offence(s) or

– those D has anticipated from a list

• Parasitic accessory liability– D liable for any other crime P commits in course of

their shared common purpose provided D foresaw P might and P does not commit it in fundamentally different way

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• D participates in P committing burglary – Either as a joint principal to burglary

– Or as an accessory to burglary

– Or as an encourager to burgle

• D shares common purpose to commit burglary

• P commits murder in course of burglary

• D liable for murder provided

– D has foreseen possibility that P might commit murder

– with P at least intending to do GBH;

– P commits murder in a not fundamentally different manner from that which D foresaw P might;

– P commits murder in course of committing burglary

– D not withdrawn

– D liable irrespective of D intending murder committed or even where D has pleaded with P not to.

Joint Enterprise Liability

Chan Wing-Siu [1985] AC 168 • “The case must depend rather on the wider principle

whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend.

• That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorisation, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal liability lies in participating in the venture with that foresight.”

• Followed long list of cases since 1960s • Endorsed by unanimous HL in Powell and Daniels

[1999] 1 AC 1• Endorsed by 7 member SC in Gnango [2011] UKSC

The problems• Principle

– Failure to identify a clear rationale – deterrence (Lord Steyn in Powell)?; contemplation and authorisation?

• Practical – Ambiguity

• Why common purpose? Must D foresee P’s crime or P’s act?; “fundamentally different” rule

– Fewer pleas; longer trials; judicial directions were complex and technical; more appeals

– 17% of all homicide trials involve joint enterprise– Between 2005-2013, 1853 prosecutions for murder included 4 or more

defendants (up to 20% of homicide trials per annum)– Between 2005-2013, 4590 homicide trials with 2 or more defendants

(up to 44% of all homicide trials per annum)• Report of the Bureau of Investigative Journalism (2014)

• POLICY – Disproportionate impact on BAME– Parliament will not act despite Justice Committee calls in 2012, 2014

• See Ormerod and Wilson [2015] Crim LR 38

Policy concerns

• A disproportionate number of those serving sentences for joint enterprise charges were BME, and Muslim.

• There are over 11 times as many black/black-British prisoners in the sample who are serving time under joint enterprise compared to the proportion of black/black-British people in the general population. – B Crewe et al [2015] Crim LR Issue 4

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Public Perceptions

• (1) the public do not support a mandatory life sentence in all types of murder

• (2) the public do not have confidence in a system that would impose automatic, indefinite imprisonment

• (3) All participants in the research thought that all murders should be grouped or graded in some way according to their relative seriousness (p36).

– B Mitchell and JV Roberts (2010)

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Public Opinion and Sentencing for

Murder (2010)

• Interviews with 1000+ people

• Case A

– Jim and Pete, aged 16. Jim Stabs V, Pete

present cases “go on mate”. V dies

• Case B

– Bob and Mike rob a bank. Bob is the getaway

driver. Bob knows Mike ha a loaded gun. Mike

shoots a cashier.

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• “Everything points to the need for reform

and the Court has the power at its disposal

to achieve a just solution swiftly, in

contrast to legislative reform which, even if

there were sufficient government appetite,

would need to wait for a precious Bill slot

in an overcrowded and heavily political

legislative timetable.”

• Wilson and Ormerod (2015)

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The “new law” • D liable as a joint principal if he committed the

actus reus of the offence with mens rea

• D liable as an aider, abetter, counsellor or procurer of P committing an offence or offences where D with intent

– assisted/encouraged the offence(s) or

– those D has anticipated from a list

• Parasitic accessory liability abolished.17

Jogee [2016] UKSC 8

• The so-called “parasitic accessory” approach to liability is no longer to be applied in English law.

• The shift is from it being enough that D "foresawthat P might intentionally commit a crime” [intentionally cause GBH or kill] if the circumstances arose] to requiring that D "knew/intended that P will intentionally commit the crime [intentionally cause GBH or kill] if the circumstances arose".

Jogee [2016] UKSC 8The same principles apply where:

• D by agreement with P aids and abets P in committing one crime, or more;

• Without prior agreement D aids and abets P in committing one or more crimes; or

• Where, with or without prior agreement, D aids and abets P to commit one crime and P also commits a further crime in course of doing so.

• Where there is a prior joint criminal venture it might be easier for the jury to infer the intent.

D’s actus reus

• D did acts to encourage and/or assist P to commit the offence. That conduct may take many forms .

• It is not necessary to prove D's conduct in fact encouraged or assisted.

• 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 (e.g. 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.

D’s mens rea• D intended to assist or encourage P;

• D intended that P would have the mens rea required for the offence.

• Intention is not limited to D “purpose” that P commits the offence

• Intention is not to be equated with foresight: "Foresight may be good evidence of intention but it is not synonymous with it" [73].

• D must have knowledge of any other “existing facts necessary" for P's conduct/intended conduct to be criminal.

• D’s "knowledge or ignorance that weapons generally, or a particular weapon, is carried by P will be evidence going to what the intention of D was, and may be irresistible evidence one way or the other, but it is evidence and no more.“

Relative justice?

1. A murder must still be proved

2. It is not necessary to prove who was the murderer

3. Old law – all 4 convicted on proof each only foresaw other might intentionally kill or cause GBH – 3 injustices?

4. New law – all 4 convicted of at most manslaughter unless proof of intentional killing or GBH – at worst 1 injustice?

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Academic Reaction to Jogee

• R. Buxton [2016] Crim LR – Supreme Court do not justify adequately departing

from long line of authority pre Chan

• M. Dyson [2016] Crim LR 638– Buxton has misread the earlier cases

– D must know or believe P would kill with intent.

• F Stark [2016] CLJ (November)– the Supreme Court based its decision on an erroneous

account of historical law

• D. Ormerod and K. Laird [2016] Crim LR 539– Should have admitted it was all just policy…

– New practical problems arise….. 10 things….

Miller v The Queen [2016] HCA 30• Doctrine in Aus is that D liable if foresaw P might

intentionally kill or do GBH: McAuliffe (1995)• Principles of Australian law settled and applied in High

Court numerous times• “Cannot be said that to depart from the law as it has

been consistently stated and applied would not occasion inconvenience.”

• Undesirable to look at joint enterprise and not the rest of secondary liability

• Parliament can amend the law if it is causing problems• “In light of this history, it is not appropriate for this Court

to now decide to abandon extended joint criminal enterprise liability and require, in the case of joint criminal enterprise liability, proof of intention in line with Jogee.”

Headline summary only on next slide

Secondary liability for murder• Did D give assistance or encouragement to the crime/s?

• Did D intend to assist or encourage?

• Did D intend that V be killed?

Or

• Did D intend that P would have the mens rea required for the offence(s).

• In murder that means that D must intend that P would intend to kill or do GBH

– Intention is not limited to D “purpose” that P commits the offence

– Intention is not to be equated with foresight: "Foresight may be good evidence of intention but it is not synonymous with it" [73].

– D’s knowledge of a weapon possessed by P is evidence that D foresaw P might use it with intent and that is capable of being used to infer that P intended.

• D’s intent as to P’s intention to kill or do GBH may be conditional

– D foresees that P will intentionally kill or do GBH if circumstances arise in the course of their joint venture

• D has not withdrawn at the time of the offence

An ungrateful critique

(1) Appeals out of time

• Moreover, where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That court has power to grant such leave, and may do so if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken. This principle has been consistently applied for many years. [100]

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(1) Appeals out of time

• 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 what circumstances will the CACD conclude that there was a substantial injustice where D was convicted of murder?

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(1) Appeals out of time

• The question remains whether there is a “substantial injustice” based on being

• Labelled as a murderer

and

• Sentenced as such.

• Released only by Parole Board

• On licence for life

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Other queries that remain for CACD• Mens rea – foresight is evidence – what degree of

foresight?

• Supervening event/withdrawal

• Rahman is still good law – D intends P to use GBH. P kills with intent to kill. Is D liable?

• Gamble v NCB – D can be liable as an accessory where he intentionally assists but is indifferent as to whether the crime occurs

• Maxwell – D liable if he anticipated P would commit one of a range of identifiable offences

• Actus reus – must P be aware of D’s encouragement?33

(2) Foresight unlimited

• How much has actually changed?

• "foresaw that P might intentionally cause GBH or kill if the circumstances arose" to requiring that D "knew/intended that P will intentionally cause GBH or kill if the circumstances arose".

• D must intend

• Intent is not limited to purpose

• Intent can be inferred from foresight

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Anwar [2016] EWCA Crim 551

• “we find it difficult to foresee circumstances in which there might have been a case to answer under the law before Jogee but, because of the way in which the law is now articulated, there no longer is. In addition to sufficient proof of encouragement or assistance, what is required is an intention, perhaps conditional, to encourage the commission of the relevant offence” [20]

What kind of foresight in murder?

For murder by a principal

• D must intend death or GBH

• Intention is an ordinary word

• Intention is not limited to purpose

• Intention can be found by a jury from D’s foresight of a virtually certain consequence

For murder by a secondary

• D must intend to assist and intend P’s murderous intent

• Intention is an ordinary word

• Intention is not limited to purpose

• Intention can be found by a jury from D’s foresight …..

(3) A greater jury burden

• Under the “old” law D’s foresight of a real possibility that P might intentionally kill or do GBH made him a murderer.

• Under the “new” law, the jury in each case must be sure that D intended that P would intentionally kill or do GBH. Foresight is simply a matter for them to consider. They have more work to do.

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(4) Fundamental difference…

• Where P commits the offence in a manner different to that which D intended, then only where P’s act amounts to "some overwhelming supervening act…which nobody in the defendant's shoes could have contemplated might happen and is of such a character as to relegate his acts to history” will D not be liable for it [97]–[98].

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(4) Fundamental difference

• What is a supervening event and how is it different from a fundamentally different one?

• Since D’s liability for P’s crime does not rest on causal principles why should his exemption from liability by P’s supervening event which impliedly breaks the chain?

(4) Withdrawal - undefined• An uncertain “defence”

• Is the same rule applicable in spontaneous cases?

• In Rajakumar [2013] EWCA Crim 1512 Davis LJ stated:

“[W]hat may suffice to constitute withdrawal in spontaneous and unplanned group violence may not necessarily so suffice in preplanned group violence” [42].

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The Law Commission

• Unconstrained by the facts of any case.

• Capable of reviewing the entire law

• Impact beyond murder

• Independent

• Rigorous and extensive consultation.

• Comparative work

• Reform options could have been costed.

• Guidance and model jury directions for judges and others could have been incorporated.

Criminal Seminar

Accessorial liability in criminal law after

R v Jogee

Tuesday 25 October 2016