Guilt of an accessory established by intent, not mere foresight

In two separate appeals which were heard together:

(1) The Supreme Court so held, allowing the appeal of the defendant Ameen Hassan Jogee from a decision of the Court of Appeal (Lord Justice Laws, Mr Justice Irwin and Mr Justice Griffith Williams) ([2013] EWCA Crim 1433) which dismissed his appeal against conviction for murder on March 28, 2012, at Nottingham Crown Court, before Mrs Justice Dobbs and a jury.

(2) The Privy Council so held, allowing the appeal of the defendant Shirley Ruddock from a decision of the Court of Appeal of Jamaica which refused him permission to appeal against his conviction for murder on January 27, 2010, at the Circuit Court, Montego Bay, Jamaica, before Mr Justice Hibbert and a jury.

Ms Felicity Gerry, QC, Ms Catarina Sjölin, Mr Adam Wagner and Mr Diarmuid Laffan for Jogee; Mr John McGuinness, QC and Mr Duncan Atkinson for the Crown; Mr Julian Knowles, QC and Mr James Mehigan for Ruddock; Mr Howard Stevens, QC and Mr Rowan Pennington-Benton for the Crown. Just for Kids and Joint Enterprise Not Guilty by Association intervened by way of written submissions.

LORD HUGHES and LORD TOULSON, with whom the other members of the court agreed, said that in the language of the criminal law a person who assisted or encouraged another to commit a crime was known as an accessory or secondary party. The actual perpetrator was known as a principal, even if his role might be subordinate to that of others.

It was a fundamental principle of the criminal law that an accessory was guilty of the same offence as the principal. He shared the physical act because even if it was not his hand which struck the blow, ransacked the house, smuggled the drugs or forged the cheque, he had assisted or encouraged those physical acts. Similarly he shared the culpability precisely because he encouraged or assisted the offence.

In an armed robbery of a bank, the accessory who kept guard outside was as guilty of the robbery as the principal who entered with a shotgun and extracted money from the staff with threats of violence. The same principle could apply where the accessory was nowhere near the scene of the crime. An accessory who funded the bank robbery or provided the gun for the purpose was as guilty as those who were at the scene.

Sometimes it might be impossible for the prosecution to prove whether a defendant was a principal or an accessory, but that did not matter so long as it could prove that he participated in the crime either as one or the other. Those basic principles were long established and uncontroversial.

In the last 20 years a new term had entered the lexicon of criminal lawyers: parasitic accessory liability. It was used to describe a doctrine which had been laid down by the Privy Council in Chan Wing-Sui v The Queen ([1985] AC 168) and developed in later cases, including most importantly by the House of Lords in R v Powell (The Times, October 31, 1997; [1999] 1 AC 1).

In Chan Wing-Sui it was held that if two people set out to commit a crime (crime A) and in the course of that joint enterprise one of them (D 1) committed another offence (crime B), the second person (D 2) was guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as he did. D2’s foresight of that possibility plus his continuation in the enterprise to commit crime A were held sufficient in law to bring crime B within the scope of the conduct for which he was criminally liable, whether or not he intended it.

The defendants had each been convicted of murder after directions to the jury in which the trial judges sought to apply that principle.

The Crown argued that, even if the court were now persuaded that the courts had taken a wrong turn, it should be a matter for the legislature to decide whether to make any change, since the law as laid down in Chan Wing-Sui had been in place in England and Wales and in other common law jurisdictions including Jamaica for 30 years.

The court had now had the benefit of a far more extensive review of joint enterprise liability than on past occasions. From that review there was no doubt that the Privy Council had laid down a new principle in Chan Wing-Sui.

It had of course been within the jurisdiction of the courts to change the common law in a way that made it more severe, but to alter the general principles which had stood for a long time, especially in a way which had particular impact on a subject as difficult and serious as homicide, required caution; all the more so when the change involved the widening of the scope of secondary liability and the introduction of new doctrine.

The Chan Wing-Sui doctrine could not be supported except on the basis that it had been decided and followed at the highest level. The introduction of the principle had been based on an incomplete, and in some respects erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments. It could not be said that the law was now well established and working satisfactorily. It remained highly controversial and a continuing source of difficulty for trial judges. It had also led to a large number of appeals.

Murder already had a relatively low mens rea threshold, because it included an intention to cause serious injury without intent to kill or to cause risk to life. The Chan Wing-Sui principle extended liability for murder to a secondary party on the basis of a still lesser degree of culpability, namely foresight only of the possibility that the principal might commit murder but without there being any need for intention to assist him to do so.

It savoured of constructive crime. It brought the striking anomaly of requiring a lower mental threshold for guilt in the case of an accessory than in the case of the principal.

The doctrine of secondary liability was an important common law doctrine and, if it had been unduly widened by the courts, it was proper for the courts to correct the error rather than leaving it to parliament. The error was to equate foresight with intent to assist, as a matter of law. The correct approach was to treat it as evidence of intent. It was wrong to treat foresight as an inevitable yardstick of common purpose.

The effect of putting the law right was not to render invalid all convictions which had been arrived at over many years by faithfully applying the law as laid down in Chan Wing-Sui and Powell. The error identified was important as a matter of legal principle, but it did not follow that it would have been important on the facts to the outcome of the trial or the safety of the conviction.

Where a conviction had been arrived at by applying the law as it stood at the time, it could be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That court might set it aside if substantial injustice could be demonstrated, but it would not do so simply because the law then applied had now been declared to have been mistaken.

Solicitors: Defence Law, Leicester; Crown Prosecution Service, Appeals and Review Unit; Dorsey & Whitney (Europe) LLP; Charles Russell Speechlys.