Thursday, 18 February 2016

Jogee and Ruddock ~ Judgments of the UKSC and JCPC ~ the correct rule

Links to articles will be added at the end of this post ....

Judgments have been handed down by the Supreme Court of the UK in R v Jogee and the Judicial Committee of the Privy Council in Ruddock v The Queen.

R v Jogee (Appellant) and Press summary (PDF)

Ruddock (Appellant) v The Queen (Respondent) (Jamaica) 
and Press summary (PDF)

Youtube - see the court handing down judgment

Bailii - Jogee and Ruddock [2016] UKSC 8

Where we were:

The cases were concerned with a form of accessory liability referred to by criminal lawyers as Parasitic Accessorial (or accessory) Liability.  Broadly speaking, where D1 and D2 embarked together on Crime A but D1 also committed Crime B, D2 could also be liable for Crime B where he continued in the enterprise to commit Crime A having foreseen a possibility that D1 would commit Crime B.  As Felicity Gerry QC (counsel for Jogee) put it, the law had become a "dog's breakfast" with the outcome that some convictions (especially for murder) were seen by many as unjust. The Supreme Court was asked to restate the law in a way that would prevent "over-criminalisation."  This previous post has further background information.

The Judgment:

When reading the judgments it is vital to note carefully the quite narrow aspect of criminal liability addressed by these important appeals and also to note the court's statements as to what their judgment does NOT do.  (Lord Neuberger referred to the question raised by these appeals as "narrow but important").

What the judgments decide -

The judgment was concerned with Parasitic Accessory Liability and the mental element required in order to establish guilt. 

The court held, unanimously, that the law must be set back on the correct footing which stood before Chan Wing Siu v The Queen [1985] AC 168 (Judicial Committee of the Privy Council).  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 mental element for secondary liability is intention to assist or encourage the crime.  The following - (between "  ") - is taken from the court's Press Summary.

"Sometimes the encouragement or assistance is given to a specific crime, and sometimes to a range of crimes, one of which is committed; either will suffice. Sometimes the encouragement or assistance involves an agreement between the parties, but in other cases it takes the form of more or less spontaneous joining in a criminal enterprise; again, either will suffice. Intention to assist is not the same as desiring the crime to be committed. On the contrary, the intention to assist may sometimes be conditional, in the sense that the secondary party hopes that the further crime will not be necessary, but if he nevertheless gives his intentional assistance on the basis that it may be committed if the necessity for it arises, he will be guilty. In many cases, the intention to assist will be coterminous with the intention (perhaps conditional) that crime B be committed, but there may be some where it exists without that latter intention. It will remain relevant to enquire in most cases whether the principal and secondary party shared a common criminal purpose, for often this will demonstrate the secondary party’s intention to assist.

The error was to treat foresight of crime B as automatic authorisation of it, whereas the correct rule is that foresight is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage. It is a question for the jury in every case whether the intention to assist or encourage is shown. This brings the mental element of the secondary party back into broad parity with what is required of the principal."  (My emphasis).

What the court did NOT change -

First, the judgments do not affect the law that a person who joins in a crime which any reasonable person would realise involves a risk of harm, and death results, is guilty at least of manslaughter. Manslaughter cases can vary in their gravity, but may be very serious and the maximum sentence is life imprisonment.

Secondly, the judgments do not affect the rule that a person who intentionally encourages or assists the commission of a crime is as guilty as the person who physically commits it.

Thirdly, they do not alter the fact that it is open to a jury to infer intentional encouragement or assistance, for example, from weight of numbers in a combined attack, whether more or less spontaneous or planned, or from knowledge that weapons are being carried. It is a commonplace for juries to have to decide what inferences they can properly draw about intention from an accused person’s behaviour and what he knew.

Effect on previous convictions:

This necessary correction to the wrong turning taken by the law does not mean that every person convicted in the past as a secondary party, where the law as stated in Chan Wing-Siu was applied, will have suffered an unsafe conviction. A correction to the law does not have this effect.

The outcome may in many cases have been the same. Those whose convictions are outside the time limit for appealing would require the exceptional leave of the Court of Appeal, Criminal Division, to challenge them out of time. It is for that court to enquire whether substantial injustice would occur in any particular case, ...... The same rules apply where the Criminal Cases Review Commission is asked to consider referring a case to the Court of Appeal.

Where now for Jogee and Ruddock:

In Jogee's case, written submissions were requested to decide whether there will be a retrial for murder or a manslaughter conviction substituted - paras 106 and 107 on the "choice of disposal".  [The court's Press summary is not authoritative - see the note at its end.  Only the judgment is authoritative].

In the case of Ruddock there were other, unrelated, misdirections. The Board asks for written submissions from both sides, now that the correct position in law has been identified, as to what should be the appropriate disposal.

Guide to the judgments:

  • Court asked to review the doctrine of parasitic accessory liability and to hold that the court took a wrong turn in Chan Wing-Siu and the cases which have followed it - para.3
  • General principles of secondary liability: paras. 8-12 and 14-16.
  • “Joint enterprise” not a legal term of art – the term covers a variety of situations: para. 77
  • Why it was right to reverse Chan Wing-Siu: paras. 80-85
  • Restatement of principles: paras. 88-99
  • Effect on previous convictions: para. 100

Some discussion:

There is little doubt that academic writers and practitioners will be subjecting this judgment to detailed "unpicking" over the coming weeks and months.  Listening to the 'open court' argument, it came over strongly that there was a need for judges to be able to direct juries in straightforward terms.  Was the defendant a participant in the crime committed (para. 89) AND did the defendant intend to encourage or assist D1 to commit the crime acting with whatever mental element the offence requires of D1 (para. 90) ?  [The UKSC's statements about the mens rea required by the accessory are not, with respect, worded as felicitously as they might have been. Whether this will lead to problems is not discussed further here].

These are ultimately questions for the jury to answer taking into account all the evidence including evidence of any foresight on the part of D2 as to what D1 might do but foresight is now to be regarded as evidence from which, taking into account ALL the facts, the jury might infer that D2 had the necessary intention.

At para.97, the judgment discusses "overwhelming supervening act by the perpetrator which nobody in the defendant's shoes could have contemplated."  Apart from a reference to the cases of Wesley Smith, Anderson and Morris (para. 31) and Reid (para.34) this is not amplified further but whether this makes any change to existing accessory liability principles is a moot point about which we shall have to wait and see. 

For the future, there should be no need to talk further of "parasitic accessory liability" even though factual situations will continue to arise in which that concept would have previously applied.  Only time and experience will tell whether, for secondary parties, the restated law results in more manslaughter convictions and fewer murder convictions.  That may not be too much of a problem provided that sentencing for manslaughter properly recognises the public concern over violent crime.  The maximum sentence for manslaughter is "life imprisonment" though this is rarely imposed since sentencing is "at large" given that manslaughter embraces a wide spectrum of offending.

Additional links:

I will add links here as they become available -

University of Cambridge Faculty of Law - Law in Focus: 'R v Jogee: The Supreme Court and the Law of Complicity' - Matthew Dyson - an excellent video exposition of the change of law brought about by Jogee.

Doughty Street Chambers - R v Jogee: The Supreme Court rewrites the law

UK Human Rights Blog - Supreme Court abolishes "wrong turn" joint enterprise law - Diarmaid Laffan

JENGbA and Just for Kids Law - Intervention

UK Supreme Court Blog - New Judgment: R v Jogee; Ruddock v The Queen (Jamaica) [2016] UKSC 8

1 comment:

  1. I am very grateful for the many kind comments about this post received on Twitter. Thank you.