This essay will discuss issues faced in joint enterprise before the case of R v Jogee 2016 and what changes came into effect after. A definition of joint enterprise is; when two or more people commit a crime together and during the course of the crime, one of them commits a further offence. It is described in the case of R v Gnango where it is explained that joint enterprise is when ‘two parties participate in the commission of crime A and, in the course of committing it, D1 commits crime B which D2 foresees that he might commit.’.
Before the case of Jogee
Chan Wing-Siu 1985 was a case that changed the framework for joint enterprise. In this the three appellants went to the deceased house intending to rob him, three of them carrying knives, upon entering the premises the victim attacked them and in retaliation, they killed the deceased, as well as cutting the wife on her head as they were leaving. Chang Wing-Siu used two cases to refer to in judgement, perhaps not giving a deeper insight into whether or not the accessory should be held liable. The judgement was that the accessory would be liable for murder since it was foreseeable for the act to occur during the first crime that they were committing. It was stated that:
“an accessory before the fact bears, as does a principal in the second degree, a criminal liability for an act which was within the contemplation of both himself and the principal in the first degree as an act which might be done in the course of carrying out the primary criminal intention”
It is the principle of parasitic accessory liability, which is where the accessory is criminally liable for the acts made by the principal, it is conveyed that foresight is considered to be equal to intent and authorisation. Many considered this to be a generalised view, providing a very broad overview of what the principle is. The principle was later affirmed in the case of R v Powell and R v English, where it is stated in the House of Lords that:
‘it is sufficient to found a conviction for murder of a secondary party to a joint enterprise that he or she participated in the enterprise intending or foreseeing that the principal might do an act in the course of the enterprise with intent to do grievous bodily harm’.
The change in law after this was extensive, allowing the secondary defendant to be held liable for the crime of intent, most would say that it was where the law took a ‘wrong turn’, as stated in a journal ‘Young men are serving hugely long minimum terms for murder because they were out with a mate who then murdered someone.’, this statement reflects some of the displeasure felt amongst the public about this principle.
The principle of parasitic accessory liability arises again in the aforementioned case of Gnango, it could be seen as a case that aided in the change of law. The facts of the case are as stated; two men, Gnango and another who was never identified but was referred to as ‘Bandana man’, engaged in a gunfight where they both had the intention to shoot and be shot at. During their course of the shootout, ‘Bandana man’ (B) misses and subsequently shoots and kills a passerby, instead of Gnango. Seven judges sat in this case with the majority upholding the conviction of Gnango for murder under parasitic accessory liability. However, many questioned as to how the judgement came to be this way. The Crown suggested that agreeing to the gunfight was crime A and that the killing was crime B, which then lead to Gnango being seen as an accessory, since it was seen as a possible outcome of crime A. They then stated that since he had aided, abetted, counselled and procured ‘Bandana man’ to shoot at him, he would be considered guilty of aiding and abetting and attempted murder on himself. By the end of this case, it had been agreed that the respondent’s conviction was guilty.
Although one judge Lord Kerr dissenting, referring to ‘Bandana man’ as B, stated that had B fired first it would be correct to assume that Gnango fired in retaliation of that shot and therefore it could be stated due to Gnango’s retaliation it caused B to fire again. Nonetheless as said by Lord Kerr, ‘that is not enough to show that B was caused to fire because of Gnango’s shot. I do not consider, therefore, that Gnango can be guilty of the murder of Ms Pniewska as a joint principal.’
Many issues have come to light due to the judgement made in Gnango, and many weaknesses could be pointed out in the case, firstly in the use of joint enterprise. Gnango and ‘Bandana man’ were not acting jointly in the confrontation, rather they were fighting each other. Secondly, the use of, accessory. Could Gnango be really considered an accessory, there is a difference between encouragement and provocation; had B shot Gnango it would not have been said that he had encouraged B to shoot him. It can be considered that this case highlights the issues of the Chan Wing-Siu, of being too broad and inexact in the conditions, not exhibiting the importance of the elements in joint enterprise.
After the case of Jogee
The case of R v Jogee created a huge change in the law of joint enterprise and the principle of parasitic accessory liability. The facts of the case are as follows; Jogee and his friend Hirsi, were highly intoxicated due to the excessive consumption of drinks and drugs, due to this their behaviour became extremely aggressive. They both went to Miss Reid’s house and started shouting, the deceased, Mr Fyfe, was present and attempted to get Hirsi to leave. During this Jogee was outside shouting for Hirsi to ‘do something’ to Fyfe, he then threatened to hit Fyfe with a bottle. Hirsi had then stabbed Fyfe, killing him. In this judgement, their Lordships had used D1 for the principal and D2 for the accomplice. The decision made in this case did not support the Chan Wing-Siu principle, the Law Lords stated that this was due to incomplete and a somewhat incorrect reading of previous case law, in addition to generalised and doubtful policy arguments. Furthermore, instead of being well-established and working at a satisfactory level, the principle stayed exceedingly controversial and a source of difficulty for trial judges, which lead to a large number of appeals. The Supreme Court in Jogee did a more detailed and extensive review on joint enterprise, using more cases than Chang Wing-Siu.
Within the judgement of Jogee as pointed out by, Lord Hughes and Lord Toulson, it refers to the Serious Crime Act 2007 mentioning section 44(2) on when a person commits an offence, which states: ‘(2) But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act.’, noting that the present law in England and Wales that Parliament has shown that foresight was not adequate mens rea for the offence on encouraging or assisting another to commit an offence, which is different to what was stated in Chan Wing-Siu. Therefore it could be seen that the correction of the error through Jogee returns common law to recognise the difference between foresight and intent, which is now consistent with the Serious Crime Act 2007 and section 8 in the Criminal Justice Act 1967.
The decision of Jogee, caused the principles of secondary liability to restated, through this these principles were put clearly, which aided in taking a right turn in law. They are summarised as stated; the necessary element is whether or not D2 had encouraged or assisted in the offence, however, any association and presence are not proof of assistance or encouragement. Secondly, the accessory requires knowledge of any necessary facts to give the principal’s conduct or intended conduct its criminal character. The defendant must plan to assist on encouraging D1 to act with that intention, an intention defined as being ‘a decision to bring about a certain consequence’, once proved that there was encouragement there is no need to prove if it harbours a positive effect on D1s conduct. The only mens rea needed from D2 is that he intended to encourage or assist the principal to do the prohibited act. With these principles stated clearly it has changed the path that the law has taken from, Chan Wing Siu, the error identified was important in a matter of legal principle.
Furthermore, the mens rea of an accomplice has been made easy to state due to Jogee: the accomplice has to intend to assist or encourage the principal to do the crime, foresight is not enough. In addition due to the change in law, the correlation between joint enterprise and accomplices are no clear, in stating that they are all ways of aiding and encouraging an offence. Moreover, the unjust nature of murder cases has been handled by requiring intent that the principal commit murder, implicating that the mens rea is at a serious level.
However, issues arise from past convictions and whether or not they should be reconsidered. There are multiple cases that have been convicted in some would say a wrong verdict. However, not all cases can be looked into and have the judgement appealed. Cases have to be in accordance to the requirement identified in the Criminal Appeal Act 1968, where it is stated in section 1(2)(b) ‘if, within 28 days from the date of the conviction, the judge of the court of trial grants a certificate that the case is fit for appeal.’ in addition it is critical for the verdict to be rendered unsafe, meaning, it was a wrongful conviction with no legal escape. It is also stated that putting the law right will not mean that all convictions before are wrong since the conviction that was placed was applied using the law that stood at the time. Additionally, even though there is a current change in law it does not give ground to appeal after a long period of time supporting the issue of the inability to change past cases verdicts.
Another issue is if the accomplice is liable due to helping cause the crime with the assistance and encouragement causing the crime or whether the intention is better seen as a form of inchoate liability, meaning preparing to seek another crime. It is stated by Matt Dyson that he sees the lack of clear theoretical foundation as perplexing, ‘Underlying the uncertainty in the law now is the lack of limits for the justification for S’s liability. Jogee does not demonstrate in principle why S should be liable for P’s crime; it merely restates the fact of assistance or encouragement and does not deal at all with any possible justifications for parasitic complicity.’. This leaves the juries to decide when the accessory has done enough and has been considered at fault enough to be liable.
The summary of the current law on accessories, the actus reus to being an accessory is being a part of a joint enterprise at the time of the principal’s offence. The mens rea, as established in Jogee is that the defendant was going to assist or encourage the commission of the offence by the principal. Through the case of Jogee as stated above it has helped provide a clearer statement on what the mens rea for being an accessory was, as well clearing up the relationship between joint enterprise and different forms of accomplices. Overall it can be believed that Jogee has created a right turn in law, but still stands to be improved.