Supreme Court restates English "joint enterprise" law
Intent to assist or encourage, rather than simple foresight, is the proper mental element for establishing criminal liability of a person other than the one who carried out the actual criminal act, the UK Supreme Court ruled today in restating the English law commonly referred to as "joint enterprise".
Five judges unanimously allowed two appeals against convictions for murder where the incident had begun as a joint enterprise to commit a different offence, in one case assault and in the other robbery. The trial judges had based their directions to the jury on Chan Wing-Siu v The Queen [1985 1 AC 168 and R v Powell and English [1999] 1 AC 1, stating that the secondary party could be guilty of murder if they knew or realised that it was possible that the actual killer might intend to kill or cause serious harm.
In a judgment written by Lord Hughes and Lord Toulson, with whom Lord Neuberger (President), Lady Hale and Lord Thomas agreed, the court said that the earlier decisions had "[taken] a wrong turning in their reasoning", even if the outcome might have been the same if the error had not been made. They departed from the well established rule that the mental element required of a secondary party was an intention to assist or encourage the principal to commit the crime.
The mental element for secondary liability was intention to assist or encourage the crime. This might arise by prior agreement, or more or less spontaneously. Intention to assist was not the same as desiring the crime to be committed, and might arise even if conditional, in the sense that the secondary party hoped that the further crime would not be necessary but took part on the basis that it might be committed if the necessity for it arose. It would remain relevant to enquire in most cases whether the principal and secondary party shared a common criminal purpose. However the error was to treat foresight of crime B as automatic authorisation of it, whereas the correct rule was that foresight was simply evidence (albeit sometimes strong evidence) of intent to assist or encourage. It was a question for the jury in every case whether the intention to assist or encourage was shown.
In R v Jogee, the first case appealed, where Jogee had waved a bottle and encouraged his co-accused to do something to the victim during an angry confrontation, and the co-accused had taken a knife and stabbed the victim, Jogee was guilty at least of manslaughter and further submissions would be heard on whether there should be a retrial for murder.
In the second, Ruddock v The Queen, an appeal from Jamaica which concerned a fatal assault on a taxi driver as the two accused robbed him of his station wagon, where there were further unrelated misdirections, submissions on the appropriate disposal would be heard.
The court added that previous cases decided under the erroneous test, for a conviction to be reviewed out of time or by the Criminal Cases Review Commission the "substantial injustice" test would have to be applied.