FREE CHAPTER from ‘A Practical Guide to Secondary Liability and Joint Enterprise Post-Jogee’ by Joanne Cecil & James Mehigan


The term ‘joint enterprise’ is an imprecise, broad and often misunderstood piece of legal terminology. In February 2016 the Supreme Court and the Judicial Committee of the Privy Council sat together for the first time and stated that since 1984 one aspect of the principle of joint enterprise had been wrongly applied since 1984.

This book will discuss the history of the principle of joint enterprise as well as the decision in Jogee itself and how that has had an impact on the application of law. Then go on to discuss what this means for those who have been convicted under the law as it stood between 1984 and 2016 and what it means for those who stand accused of offences involving multiple defendants in the future.

What is joint enterprise?

The term ‘joint enterprise’ appears on the face of it to be a legal term understood by lawyers and used by criminal justice practitioners to clearly describe a particular phenomenon. The truth is that it is far less precise than that. ‘Joint enterprise’ is a label that papers over a confusing aspect of the criminal law. It is not built on solid, clear legal foundations and it covers such a broad set of circumstances that it is difficult to think of its use as adding clarity to the understanding of the criminal law. Jogee has gone some way to clearing up this confusion, but before we discuss the case itself it is important to unpick what is included in joint enterprise.

Joint enterprise’ can largely be considered to comprise three components; joint principals, accessories and instances where more than one person is involved in a crime and someone within that groups goes further to commit another crime. It is worth considering each of these in turn.

The liability of joint principals is an easy one to understand both conceptually and morally. If two or more people commit a crime, each is guilty of the offence. If two people attack another, they are both guilty of assault. Similarly, if two people go into a corner shop with the intention of threatening the sales assistant, they are both guilty of the offence of robbery. Both offenders share the common purpose of the offence and thus this is often known as common purpose liability.

This appears to be the best (or at least simplest) use of the term ‘joint enterprise’ in the sense that both offenders have decided to engage in a criminal ‘enterprise’ together. The language of business administration has crept into the criminal law for this doctrine, implying that both parties are engaging in an agreed plan of risk taking activity with a view to making a profit from it, or at least benefiting from it in some way.

One step removed from this simple form of joint enterprise is the role of the accessory. This is also known as ‘aiding and abetting’ and under section 8 of the Accessories and Abettors Act 1861 accessory ‘shall be liable to be tried, indicted and punished as a principal offender’. This applies to anybody who encouraged or helped the principal offender to commit the offence even if they are not present when the offence committed. The classic example is the getaway driver but one can also think of many other accessories such as somebody who provides or hides a weapon or who attends offence with a view to providing strength in numbers. In each of these cases the accessory intends the offence to occur and provide some form of assistance or encouragement. This ‘basic accessorial liability’ is also a form of ‘joint enterprise’ as all the parties are engaged in the same enterprise, however it is not this form of joint enterprise with which Jogee is concerned.

The prosecution of joint principals and basic accessories is a relatively straightforward exercise. It is not this particular type of prosecution which has caused the significant controversy and confusion. That arises from the doctrine of ‘parasitic accessorial liability’ (‘PAL’). The name1 is something of a mouthful because it deals with a very particular set of circumstances. That set of circumstances where two or more people form the common intention to commit a crime and arising from that crime a second crime is committed by one of the parties. One of the other parties can be found guilty if he had foresight that this offence might occur.

The Supreme Court in the case of Gnango describes it in these terms: ‘Parasitic accessory liability arises where (i) D1 and D2 have a common intention to commit crime A (ii) D1, as an incident of committing crime A, commits crime B, and (iii) D2 had foreseen the possibility that he might do so.’2 This is a technical way to describe the occurrence in almost algebraic terms, but breaking down the name of this form of liability may help explain just how particular it is. It is a form of accessorial liability because it allows for somebody who did not commit the direct actus reus of the offence to be found guilty of it by way of secondary involvement. It is ‘parasitic’ because it relates to a second crime which arises in the course of conduct for the first crime. This liability for the second crime is considered to be ‘parasitic’ because it is dependent on the first crime. The accessory cannot be found guilty of the second crime if he has not been involved in the first crime in some way.

Before the decision in Jogee, the law had settled on the principle that if you were involved in the first crime and you could foresee the possibility of a second crime being committed by one of your party then you were also guilty of that second crime. Jogee has now made clear that this was an incorrect interpretation of the law. To understand the significance of the Jogee case it is worth considering the history and context of the doctrine of parasitic accessorial liability.

History and context of the decision in Jogee

It is possible to take a historical view of the doctrine of joint enterprise that looks back over many centuries. Indeed after the Supreme Court gave its decision in Jogee the then chairman of the Criminal Bar Association3 described the legal submissions by the appellants as a ‘feat of forensic archaeology, digging through the layers of decisions over five centuries, to reveal the origins and development of the law of secondary liability, whereby those indirectly involved in crime can be found guilty along with the principal offenders.’4 The cases date back as far as a murder case in 1556 and include the prosecution of those involved in duelling, apple thieves killing watchmen and gamekeepers being shot by poachers. For the purposes of this book a somewhat shorter discussion of the history is useful5.

Until the late Twentieth Century the criminal law relied upon either common purpose liability for basic accessorial liability. As one retired Court of Appeal judge put it, ‘Until 1983 the law of secondary liability, although unsatisfactory in many ways, was fairly clear’6. The law before 1983 required intention. As Baker puts it ‘the Australian precedents, as well as the English precedents going back 500 years, support interpreting complicitiy as requiring nothing less than intention. The Supreme Court of the United States also has held that the ancient English authorities support interpreting the mental element in complicity as requiring nothing less than intention7’.8

Although a step was made in the direction of PAL in the 19th Century case of Macklin which allowed for the secondary offender to be found guilty of murder if they ‘both must have realised that resistance at all costs was likely’9.

In the course of the 1960s & 1970s cases reaffirmed that intent was necessary for the parasitic crime. In the 1963 case of Wesley Smith10 the trial judge’s summing up that ‘[o]nly he who intended that unlawful and grievous bodily harm should be done is guilty of murder. He who intended that the victim should be unlawfully hit and hurt will be guilty of manslaughter if death results.’11 The Court of Criminal Appeal described this jury direction as ‘legally unassailable’12. This is a clear statement that it is intention and no less that was considered to be required and the summing up was approved by Lord Parker CJ in Betty13.

A fatal stabbing lead to the conviction of one defendant for murder and one for manslaughter in the case of Anderson and Morris14. The evidence against Morris for the manslaughter was ‘unclear’ and the judge directed the jury that if there was a common design to attack the victim and Anderson took out a knife, which Morris did not know of, and used that weapon to kill, then Morris is liable only for manslaughter. The five judge Court of Criminal Appeal heard submissions, which were accepted, that the authorities from approximately 1830 onwards established the principal that the second defendant is not liable for events which go ‘beyond what has been tacitly agreed’15.

The Court in Anderson and Morris was not resiling itself from the decisions in Wesley Smith and Betty, (where someone joins a multi-handed criminal endeavour, he will not be guilty of murder if there is an escalation of that endeavour, unless he has the mens rea for murder). It was saying that an ‘overwhelming supervening event’ may be the actual cause of the death, rather than a mere escalation of a fight16.

This position was confirmed in the case of Reid17 in 1976. In that case 3 alleged supporters of the Irish Republican Army went to the house of a British colonel. One of their number shot him dead and two of them were convicted of murder, while the Appellant was convicted of manslaughter. He unsuccessfully appealed on the basis that there was no evidence for finding that he had intention to cause any harm. The jury had rejected this defence and their verdict meant that he must have intended some, at least minimal, harm be caused by his actions. The Court stated that in such cases: ‘If such injury was not intended by the others they must be acquitted of murder; but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter’.18

The Privy Council decision in Chan Wing Siu

At the start of 1984 the law in complicity cases, as noted above, was fairly settled. It may not have been perfect, but it was clear. Intention was at the heart of liability for such cases. However in June of that year, in a case from Hong Kong, the Judicial Committee of the Privy Council (the ‘Privy Council’) handed down a judgment which was to substantially change that. At its simplest, that case, Chan Wing-Siu19 reduced the mental element for secondary liability to foresight of possibility of the parasitic crime rather than intention that it be committed. It is this change that the appellants in Jogee & Ruddock submitted was where the law had ‘jumped the tracks’. This reduction of the mental element was incorrect in its interpretation of the common law as it stood at the time and it marked the effective birth of parasitic accessorial liability. The Supreme Court in Jogee agreed, but before we come to the reasoning for that decision it remains important to discuss Chan Wing Siu and the major authorities that derived from it, particularly Powell and Daniels20 which solidified the principle in the law of England and Wales.

The facts in Chan Wing-Siu are not attractive. Three men entered a prostitute’s home armed with knives. They intended to rob her husband but in the end they killed him and she was slashed on the head with a knife. All three were convicted of murder and wounding with intent to cause grievous bodily harm. The appeal was run on the basis that if the conditions for using a knife occurred (for example, resistance by the victim) then the prosecution must prove that the defendant foresaw a likelihood of greater than 50% that one of his co-accused would act with intent to cause death or really serious harm. This contrived ground of appeal was rejected. As the Court in Jogee describe it; ‘There was an overwhelming case for inferring that the appellants foresaw the likelihood of resistance and that their plan included the possible use of knives to cause serious harm.’21

The Privy Council did not need to do much by way of considered jurisprudence to dismiss the appeal. It would simply have been enough to reason that the evidence in the case was so strong that there was intention to use violence in the case of resistance.22 The facts could easily be read as evidence of common purpose liability. However the judgment of the Court went beyond this and upheld the convictions on a different basis. It is worth repeating the passage from Chan Wing-Siu cited by the Court in Jogee here.

In the typical case [of aiding and abetting] the same or the same type of offence is actually intended by all the parties acting in concert. In view of the terms of the directions to the jury here, the Crown does not seek to support the present convictions on that ground. 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.23

As discussed above, this is not consistent with the preceding 500 years of case law and is unnecessary on the facts for the purposes of dismissing the appeal. In effect it amounted to a major shift in the law of complicity. The Court in Jogee is highly critical of the methods by which this conclusion was reached. While Anderson and Morris is cited, none of the case law dating back to 1830 is not made reference to. It will also not have escaped the reader’s eye that Sir Robin Cooke makes the sweeping statement about there being ‘no doubt’ that such a principle (of secondary liability based on foresight) exists, but does not provide evidence to support it from the English law.

The effective outcome of the judgment was to turn a long-standing rule of evidence into a rule of law. From this point on foresight was no longer a useful way to assess if the required intention was there, foresight was now the intention itself. This was the moment, it was submitted on behalf of Ruddock, when the law ‘jumped the tracks’. This was a submission that was accepted by the Court. The law was wrongly interpreted in the Privy Council and it was compounded by later decisions there and in the House of Lords.

In Hui Chi Ming24 the Privy Council considered another murder appeal from Hong Kong. In this case the application of the principle in Chan Wing-Siu lead to the secondary offender (the appellant) being convicted of murder when the principal offender was only convicted of manslaughter. A group of six young men went in search of a man who had allegedly intimidated one of their girlfriends. They began a search for ‘someone to hit’ and the principal, whose girlfriend had been the subject of the intimidation, was armed with a length of pipe. An innocent man who met the description of the intimidator was chanced upon and the principal attacked him with the pipe. The principal was charged with murder but found guilty only of manslaughter 25. The appellant was later arrested and charged with murder as he had engaged in a joint enterprise in which the principal had committed murder. The jury was directed that entering a joint enterprise in which a co-entrepreneur had a weapon which could be used to apply lethal force and the weapon was so used then liability for murder would attach. The jury was not directed that the principal who struck the blow must have at least contemplated serious harm would result from the blow. Unaware that the principal had been acquitted of murder (as this was not admitted, in spite of defence submissions) the jury found the appellant guilty of murder and he was sentenced to death. With regard to PAL the Privy Council stated:

The defendant’s second point relies on Sir Robin Cooke’s use of the word ‘authorisation’ as a synonym for contemplation in the passage already cited from his judgment in Chan Wing-Siu v. The Queen [1985] A.C. 168, 175. Their Lordships consider that Sir Robin used this word – and in that regard they do not differ from counsel – to emphasise the fact that mere foresight is not enough: the accessory, in order to be guilty, must have foreseen the relevant offence which the principal may commit as a possible incident of the common unlawful enterprise and must, with such foresight, still have participated in the enterprise. The word ‘authorisation’ explains what is meant by contemplation, but does not add a new ingredient. That this is so is manifest from Sir Robin’s pithy conclusion to the passage cited: ‘The criminal culpability lies in participating in the venture with that foresight.’26

The effect of this judgment then is to take the actual intention of the principal out of the foresight test for PAL. You can be found guilty of the offence if you contemplated that a murder would be committed, even if a murder was not actually committed by the principal. The case had the effect of developing and confirming the doctrine of PAL as established in Chan Wing-Siu, but it was not until 1996 that the House of Lords considered it.

Prior to the case of Powell and Daniels27 the principles set out in Chan Wing Siu were steadily adopted as a principle of English law by the Court of Appeal in a series of cases28. However, it was not until it reached the House of Lords in the conjoined appeals of Powell and Daniels and English29 that the mistake of law at the heart of PAL was finally ossified into the criminal law of England & Wales.

The case essentially confirms the position in Chan Wing-Siu by stating that foresight is sufficient for liability in such cases. Lord Steyn stated that ‘[f]oresight and intention are not synonymous terms. But foresight is a necessary and sufficient ground of the liability of accessories’30. Essentially their Lordships determined that it was sufficient for secondary liability to attach if the accomplice thought that the principal might kill with intent even when the accomplice did not hold such an intention himself. This reasoning lead to two disturbing facets of secondary liability. The first is the possibility that a secondary party can be found guilty of a murder when neither they nor the principal had intended serious harm or death from their actions. The second was the creation of the defence of ‘fundamental difference’.

Lord Hutton explicitly addressed the fact that there can be illogical outcomes from common law rules. ‘In my opinion there are practical considerations of weight and importance related to considerations of public policy which justify the principle stated in Chan Wing-Siu and which prevail over considerations of strict logic.’31 In effect their Lordships were admitting that there would be some phenomenally unjust outcomes (remember that the appellant in Hui Chi-Ming was facing the death penalty) but this was overridden by public policy concerns. The public policy concern is usually framed in terms of creating an effective deterrent to those who engage in violence as part of a group. What that effectively comes down to is ensuring more people are convicted by making life easier for the prosecution. For 500 years prosecutors had to prove intention but between Chan Wing-Siu and Powell and Daniels that changed into a requirement that they prove mere foresight. The law’s wrong turning in Chan Wing-Siu was (almost) indelibly etched on the criminal law to make life easier for the prosecution.

While Powell and Daniels solidified PAL it also developed it. In response to some of the manifest unfairness of the doctrine their Lordships created the ‘fundamental difference’ rule. This was the only let out valve from the illogical outcomes that would inevitably follow from a strictly applied foresight rule. The fundamental difference rule, as Knowles demonstrates32, arose from the difficult facts of the appeal of English (conjoined to Powell and Daniels). In English the principal and secondary offender attacked a police officer with wooden poles. After the secondary had fled, the principal stabbed the officer with a knife that the secondary did not know about. Under the principle in Chan Wing-Siu, logically applied, liability would attach to a secondary offender who engaged in an attack with one type of weapon but whose co-attacker, unbeknownst to the secondary, was carrying a weapon of a different order of lethality33.

While the legal effect of Powell & Daniels was to settle the principle in Chan Wing-Siu as the basis for liability in PAL cases in England & Wales, it is hard to overemphasise the deleterious impact this settled law has had on the criminal justice system in general and the right to a fair trial in particular. The so-called ‘public policy reasons’ for expanding liability for parasitic offences has allowed for a broadly applied principle to assist prosecutors in convicting those only peripherally involved in an offence. In effect, this reduces the work required by the prosecutor to prove involvement in an offence because, as a former client of ours once said, it is a ‘lazy law’. It has had a particularly damaging effect on young black men34.

The PAL principle should apply to all cases where a parasitic ‘crime B’ occurs (for example one party assaulting a security guard when two people are shoplifting). However, its most damaging effects are particularly problematic in cases of murder. This is to do with the fact that a murder conviction carries with it the highest level of stigma conceived of by the criminal law and also a mandatory life sentence. At the time of Chan Wing-Siu and Powell and Daniels were decided the decision on how long a prisoner must stay in custody before being eligible to apply for parole (their minimum term) was determined by the Home Secretary. In a House of Lords judgment in 2002 this political process was found to be incompatible with the Human Rights Act 199835. In response to this removal of his powers the then Home Secretary, David Blunkett, introduced in section 269 of the Criminal Justice Act 2003 a strict system for determining the minimum term to be served in murder cases36. This largely tied the hands of judges. Notably, by including offending in groups as an aggravating factor, it created a situation where many defendants receiving long sentences even though they were only liable for murder because they had a minimum level of foresight but limited meaningful involvement in the offence. It is quite possible within the guidance to imagine someone actually stabbing someone in cold blood receiving a significantly shorter sentence than someone who attended a fight that ended in a death.

Their hands tied by the guidelines, judges have been imposing condign sentences with a real disconnect from the gravity of the offending.

The decision in Jogee & Ruddock

It is in this context that the Supreme Court and Privy Council came to hear these conjoined cases. These courts37 had never heard cases together in the past and on that fact alone the case was a historical development. The reasons for the joinder appear to stem from the fact that the mistake of law was made in a Privy Council case (Chan Wing-Siu) and ossified in England and Wales by the House of Lords (Powell and Daniels). To unambiguously correct this their Lordships appear to have taken the view that it needed a unified decision of both courts.

It is useful to have a brief summary of the factual and appellate history of the two cases here. Mr Jogee was convicted of murder having gone with the principal to the house of the victim which the principal entered uninvited. They had been to the house a number of times that night and on the final occasion the principal entered the victim’s kitchen and stabbed him with a knife he found there. Mr Jogee remained outside when this happened. He was smashing a bottle against a car and shouting encouragement. Both men were convicted on 28 March 2012. The facts of the case are such that it, like so many of the cases upon which PAL is built38, is not actually a PAL case. The murder is not a parasitic ‘crime B’ that derives from a ‘crime A’ which the parties initially embarked on.

Mr Jogee appealed his conviction to the Court of Appeal39 and, perhaps unsurprisingly in the light of Powell and Daniels, the trial judge’s directions on joint enterprise were found to be satisfactory. He appealed this decision to the Supreme Court and it is this appeal that was heard by the Court of five members alongside that of Mr Ruddock.

Mr Ruddock was a fish merchant in Jamaica who was arrested alongside the principal and a third person in a car which belonged to the deceased. The deceased had been missing for some days. The principal pleaded guilty to murder. The case against Mr Ruddock at trial was pleaded in two alternatives. Either he and the principal entered into an agreement to rob and kill the victim or they entered an agreement to rob him and Mr Ruddock must have foreseen that the principal might have stabbed him with at least the intention of serious harm. Mr Ruddock’s defence was that he had not been present at the murder and had no knowledge of it. He explained his incriminating statements to an investigating officer as the result of beatings he received. These facts are a much better example of a case involving PAL than those in Jogee. If the jury found that Mr Ruddock was party to a plan to rob and kill, then PAL is not required, common purpose liability is sufficient. However, if they found that he had only entered a plan to rob the victim PAL is required for the prosecution to found liability. This is perhaps a perfect example of PAL acting as a catch all safety net for a prosecution founded on very weak evidence. When a prosecution can’t prove intention, as was impossible in Mr Ruddock’s case, PAL can be relied upon to found liability for murder in the absence of intention. However, this safety net was quite poorly constructed even on its own terms. During oral argument, counsel for the DPP of Jamaica conceded that the trial judge’s direction on joint enterprise was not a good example of a proper Chan Wing-Siu direction in any event.

The judgment in Jogee marks a major change in the law on joint enterprise, so it is worth considering the way the Supreme Court and Privy Council have set this out. The judgment sets out the new test early but then goes on to a detailed historical analysis of the law on secondary liability.

The correct test for parasitic accessorial liability is one of intention, not of foresight and this means that the 1984 case, notwithstanding how often it has been faithfully applied at trial, cannot stand. At paragraph 79 the Court sets out its succinct conclusion on the Chan Wing-Siu decision:

It will be apparent from what we have said that we do not consider that the Chan Wing-Siu principle can be supported, except on the basis that it has been decided and followed at the highest level. In plain terms, our analysis leads us to the conclusion that the introduction of the principle was based on an incomplete, and in some respects erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments.

The judgment gives five reasons why it is right to reverse the decision in Chan Wing-Siu. These are worth setting out as they give a clear indication of the Court’s reasoning and also an explanation of how it felt it had the power to make such significant changes. In essence these reasons are that:

  1. The Court in Jogee has had the benefit of a ‘much fuller analysis than on previous occasions when the topic has been considered’. They note that only two English cases are cited in Chan Wing-Siu itself and while more were referred to in Powell and Daniels; English, many important cases were missed out.40

  2. The current law on PAL, based on Chan Wing-Siu is not working satisfactorily. It needs to be corrected because it ‘remains highly controversial and a continuing source of difficulty for trial judges. It ahs also led to large numbers of appeals.’41

  3. Secondary liability ‘is an important part of the common law, and if a wrong turn has been taken, it should be corrected.42 The Court rejected the argument that the passage of time means that Parliament should make any amendments to the doctrine. Because it is a common law doctrine that has been ‘unduly widened by the courts, it is proper for the courts to correct the error’.43

  4. The role of foresight has been greatly overvalued in the post Chan Wing-Siu jurisprudence. At common law foresight was no more than evidence from which the jury could work whether the defendant had the necessary intention. The Court in Jodie noted that murder already has a relatively low mens rea threshold because liability attaches once the defendant intended to cause really serious harm even if they did not intend to kill.

    The Chan Wing-Siu principle extends liability for murder to a secondary party on the basis of a still lesser degree of culpability, namely foresight only of the possibility of the principle may commit murder but without there being any need for the intention to assist them to do so. It savours, as Prof Smith suggested, of constructed crime.44

  5. The fifth point that the Court made is that the rule creates the ‘striking anomaly’ whereby a secondary offender can be found guilty on the basis of a lower threshold than the principal offender.

For these reasons the Court determined that it was able to reverse the principle in Chan Wing-Siu and return to the law as it stood for centuries prior to that decision.

Early on in the judgment the true test for secondary liability in PAL cases is set out. After all the confusion that has developed with the interpretation of Chan Wing-Siu the test is for secondary liability generally as set out in Jogee is a simple one: ‘The requisite conduct element is that D2 has encouraged or assisted the commission of the offence by D1.’45 In PAL cases specifically the Court goes on to say ‘the mental element in assisting or encouraging to assist or encourage the commission of the crime and this requires knowledge of any existing facts necessary for it to be criminal’46. This means that if ‘the crime requires a particular intent, D2 must intend to assist or encourage D1 to act with such intent’47. In those three paragraphs the Court has re-established the principle of intention as an essential part of mens rea in PAL cases. The Judges then went on to set out more detail on the conduct and mental element required in such cases.

The conduct element or actus reus will involve an act of assistance or encouragement and the Court is clear that the potential way in which this will work will be highly fact specific. Association between D1 and D2 ‘may or may not involve assistance or encouragement’ and the same is true for presence at the scene of a crime. ‘Both association and presence are likely to be very relevant evidence on the question of whether assistance or encouragement was provided.’48 It is noted that presence can amount to encouragement and can assist in the commission of violent crimes, even if no violence is perpetrated by the merely present D2. Once this assistance or encouragement is established, the prosecution does not have to prove that it ha a positive effect on D1’s conduct. That means there is no ‘but for’ test. It will not be enough to say ‘he would have done it anyway, it didn’t matter that I was there is support’49.

When it comes to the mental element or mens rea the Court was clear that the way in which intention to assist or encourage operates will be specific to particular offences. However, the D2 may intend to assist or encourage a particular category of offence without necessarily knowing which precise offence would be committed. A D2 could assist or encourage an offence of terrorism, without knowing the exact form it would take50. It is enough that they knew of a range of possible offences which they were assisting or encouraging.

So where does this leave foresight? The short answer is that it returns to its role as evidence of intention rather than as proof of common purpose. This latter use of foresight as proof positive that there was a common purpose (and therefore liability) was erroneous. The Court sets it out as follows:

The error was to equate foresight with intent to assist, as a matter of law; the correct approach is to treat it as evidence of intent. The long-standing pre-Chan Wing-Siu practice of inferring intent to assist from a common criminal purpose which includes the further crime, if the occasion for it were to arise, was always a legitimate one; what was illegitimate was to treat foresight as an inevitable yardstick of common purpose.51

For practitioners in the future this has real significance. The defendant’s knowledge that his associate might do something, however unlikely, is no longer enough for secondary liability. They must have intended it to happen and assist or encourage it. This will mean that prosecutors will now need evidence to prove someone’s liability and will not be able to fall back neatly on the Chan Wing-Siu foresight safety net. This is a significant change and was felt immediately in the criminal courts.

The judgment’s effect is to clarify the law and create a clearer and more logical basis upon which to found secondary liability in PAL cases. However, it does not mean that someone who lacks intent for a murder arising out of a violent ‘crime A’ will be without any criminal liability. If they engage in a violent offence which ends in death they can still be found guilty of manslaughter, notwithstanding the fact that they did not intend to cause really serious harm or death.52 This may in certain cases appear to be particularly harsh but it has the benefit of taking a large number of cases out of the purview of the strict sentencing rules for murder. Murder convictions incur a mandatory life sentence and the fact that an offence was committed by a group (which will inevitably apply to almost all PAL murder convictions) serves to aggravate the component of the sentence which deals with the minimum term. The sentencing range for manslaughter on the other hand is broader than for almost any other offence ranging from a conditional discharge to a life sentence, although the trend in recent years has been towards sentences of immediate custody. The sentencing judge therefore has the ability to impose a sentence which fits the role played by the secondary offender in a much more precise fashion than was possible in the pre-Jogee legal framework.

The effect of the decision in Jogee is clear for those who are involved in PAL cases in the future, but the Court went on to discuss how appellate courts should deal with cases where juries were directed in good faith on the basis of Chan Wing-Siu. Before discussing those cases it may be of interest to readers to know the eventual outcome for the two appellants in this case, Jogee and Ruddock.

Mr Jogee’s conviction was quashed and a re-trial was ordered. This took place in Nottingham Crown Court and resulted in Mr Jogee’s conviction for manslaughter. He was sentenced to a 12-year determinate sentence.53

In the Privy Council it was accepted by counsel for the DPP of Jamaica that the appeal must be allowed if the principle in Chan Wing-Siu is wrong in law.54 Mr Ruddock’s case was remitted to the Court of Appeal of Jamaica. There it was decided that his quashed conviction for murder be substituted with a conviction for manslaughter. A new sentence of 17 years was imposed.55

For the two appellants in these cases then, the impact of the decision in Jogee is one with a significant impact on their sentence. However, for those who were convicted prior to this decision the Supreme Court and Court of Appeal have contrived to ensure that there is likely to be little change. The mechanism by which this has taken place, and the means by which practitioners can hope to work with the legal framework, are the subject of the following chapters.


1The name was coined by Professor John Smith, Smith, J (1997) ‘Criminal liability of accessories: law and law reform’, Law Quarterly Review, 113 (Jul), 453-467, at p 455.

2Gnango [2012] 1 AC 827, para 42.

3Francis FitzGibbon QC acted on behalf of one of the interveners in the case, Just for Kids Law.

4FitzGibbon, F (2016) ‘Joint Enterprise’, London Review of Books, Vol 38, No 5, p 26.

5For a fuller treatment of the historical context see Knowles, J (2016), ‘Joint Enterprise After Jogee and Ruddock: What Next?’, UK Supreme Court Yearbook, Vol 7, pp 72-128.

6Buxton, R (2016), ‘Jogee: upheaval in secondary liability for murder’, Crim LR, Vol 5, pp 324-333.

7Rosemond v US (2014) 134 S Ct 1240.

8Baker, D (2017), ‘Letter to the editor: Jogee: jury directions and the manslaughter alternative’, Crim LR 51-56, p51. See also Baker, D (2016), Reinterpreting Complicity and Inchoate Participation Offences, London: Routledge.

9[1831] 4 Car & P 565.

10[1963] 1 WLR 1200.

11[1963] 1 WLR 1200 at 1206 and Jogee [28].

12[1963] 1 WLR 1200 at 1207.

13[1964] 48 Cr App R 6 and Jogee [30].

14[1966] 2 QB 110.

15[1966] 2 QB 110 at 118 and Jogee [31]

16Jogee [33].

17[1976] 62 Cr App R 109.

18[1976] 62 Cr App R 109 and Jogee [35].

19[1985] 1 AC 168.

20[1999] 1 AC 1.

21Jogee at [36-37].

22Jogee at [37]

23Chan Wing-Siu, p175.

24Hui Chi Ming [1992] 1 AC 34.

25Two other members of the group pleaded guilty to manslaughter and one was acquitted after judicial direction.

26Per Lord Lowry, [1992] 1 A.C. 34, at p 53.

27Powell and Daniels; English [1999] 1 A.C. 1; [1997] 3 W.L.R. 959; [1998] 1 Cr. App. R. 261.

28Their Lordships in Jogee [at paras 47-50] provide the examples of Slack [1989] QB 775, Wakely [1990] Crim LR 119 and Hyde [1991] 1 QB 134.

29The case is referred to as Powell and Daniels for brevity in this book.

30Powell and Daniels [1999] 1 A.C. 1, at p 13.

31Powell and Daniels [1999] 1 A.C. 1, at p 23.

32Knowles, op cit, pp 110-111.

33Powell and Daniels [1999] 1 A.C. 1, per Lord Hutton at p 28.

34Phillips, C & Bowling, B (2017), ‘Ethnicities, racism, crime and criminal justice’, in Liebling, A, Maruna, S & McAra, L (eds), Oxford Handbook of Criminology (6th ed), Oxford: Oxford University Press, pp 190-212.

35R (on the application of Anderson) v Secretary of State for the Home Department [2002] UKHL 46; [2003] 1 AC 87; [2003] 1 Cr App R 32.

36Crewe, B, A Liebling, N Padfield & G Virgo (2015) ‘Joint enterprise: the implications of an unfair and unclear law’, Crim LR, Vol 4, 252-269.

37Nor indeed had the Supreme Court’s predecessor, the Judicial Committee of the House of Lords, considered a case with the Privy Council.

38For example Chan Wing-Siu was factually not a case which required PAL in order to found liability.

39Jogee [2013] EWCA Crim 1433

40Jogee at paragraph 80.

41Jogee at paragraph 81.

42Jogee at paragraph 82.

43Jogee at paragraph 85.

44Jogee at paragraph 83.

45Jogee at paragraph 8.

46Jogee at paragraph 9.

47Jogee at paragraph 10.

48Jogee at paragraph 11.

49Jogee at paragraph 12.

50Jogee at paragraph 14.

51Jogee at paragraph 87.

52Jogee at paragraph 96. See also Ormerod, D & K Laird (2016) ‘Jogee: Not the end of a legal saga but the start of one?’, Crim LR, Vol 8, 539-552, at 543.

53Bowcott, O [2016] ‘Ameen Jogee jailed for manslaughter in joint enterprise test case’, Guardian, 12 September, available at <

54Jogee at paragraph 120.

55Shirley Ruddock v R [2017] JMCA Crim 6.