Back to the Past: Supreme Court Reverses the Law on Accessory Liability
It is well established in criminal law that those who embark on an agreed joint enterprise can be liable for the consequences arising from actions carried out pursuant to the joint enterprise by others, where the actions do not stray beyond the scope of the joint enterprise. The decision as to whether or not actions form part of a joint enterprise is one for the Jury.
Parties to a joint enterprise are known as principals or accessory parties (alternatively secondary parties). Principals are those parties who most immediately cause the actus reus of a crime. Accessory parties are those who, pursuant to section 8 of the Accessories and Abettors Act 1861, either aid, abet, counsel or procure the principal. The accessory is guilty of the same offence as the principal and shares his culpability, having encouraged or assisted the physical acts carried out by him.
The principle of joint enterprise or ‘accessory liability’ finds some of its support by virtue of it often being the only way to achieve justice where gangs are involved and there is uncertainty over who in a group committed a criminal act. A well-known large-scale joint enterprise prosecution involved seventeen teenagers who were convicted over the killing of Sofyen Belamouadden, aged fifteen, at Victoria railway station in 2010. Three were convicted of murder, five of manslaughter and others of conspiracy to commit grievous bodily harm and violent disorder. Samson Odegbune, who was aged sixteen at the time, was convicted of murder after leading the “running charge” while waving a sword.
Research in 2014 showed that 1853+ people were prosecuted under joint enterprise between 2005-2013 and 17.7% of these were murder cases (Bureau of Investigative Journalism).
The former position
Prior to the Supreme Court’s judgment in R v Jogee and Ruddock v The Queen  UKSC 8  UKPC 7, the law in relation to accessory liability was problematic both in terms of controversy and the number of appeals to which it gave rise. This followed the Privy Council’s decision in Chan Wing-Siu v The Queen  AC 168 and the House of Lords’ decision in R v Powell and R v English  1 AC 1. The principle was established that if two parties undertook a joint enterprise to commit a criminal offence during which the principal committed a further offence, the secondary party would be guilty as an accessory to that further offence if he foresaw the possibility of the principal acting as he did. This is known as parasitic accessory liability.
For a principal to be convicted of murder it has to be shown that there was a specific intention to kill or cause really serious injury. Nothing less will suffice. Yet it was not necessary to show an intention to assist on the part of the secondary party. As it stood prior to the judgment dated 18 February 2016 of the Supreme Court, a secondary party could be liable for murder on the basis of foresight of the possibility of the principal committing it. The perhaps surprising result was that a lower mental threshold would suffice for the purpose of convicting a secondary party than a principal. This amounts to a distinct blurring of the lines between foresight and intent, when foresight might be better viewed as evidence of intent. The principle was justified on the basis of public policy, despite appreciation that it was not logically sound. Lord Steyn, in his judgment in R v Powell and R v English, said:
“The criminal justice system exists to control crime. A prime function of that system must be to deal justly but effectively with those who join with others in criminal enterprises. Experience has shown that joint criminal enterprises only too readily escalate into the commission of greater offences. In order to deal with this important social problem the accessory principle is needed and cannot be abolished or relaxed.”
What has changed?
The common law, as interpreted by courts prior to 18 February 2016, attracted criticism amongst the legal community both in the United Kingdom and in other commonwealth countries. In Clayton v The Queen  HCA 58 (at 108) Kirby J said in his dissenting judgment in the High Court of Australia:
“To hold an accused liable for murder merely on the foresight of a possibility is fundamentally unjust. It may not be truly a fictitious or “constructive liability”. But it countenances what is “undoubtedly a lesser form of mens rea”. It is a form that is an exception to the normal requirements of criminal liability. And it introduces a serious disharmony in the law, particularly as that law affects the liability of secondary offenders to conviction for murder upon this basis.”
Ten years later the Supreme Court was asked by the Appellants, Jogee and Ruddock, to consider whether foresight of harm is a sufficiently high threshold to convict someone of murder. On 18 February 2016 the court gave its unanimous judgment that foresight alone was not sufficient, thereby overturning the Chan Wing-Siu principle and returning the requisite mental element of a secondary party to the position pre-1985. Their lordships commented in R v Jogee and Ruddock v The Queen  UKSC 8  UKPC 7 (at 87):
“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.”
The Supreme Court has clarified that the Privy Council in Chan Wing-Siu erroneously elevated a rule of evidence into a rule of law. In overturning the principle, the following was highlighted:
i. The Supreme Court benefited from a much fuller analysis of the law than was previously considered by other courts. The judgment itself provides a thorough analysis of previous case law;
ii. There have been a large number of appeals and therefore it cannot be said that the law has previously been working well;
iii. Accessory liability is an important part of the common law and, where an error of widening the law has been made, the law should be corrected;
iv. It was noted that the Chan Wing-Siu principle seemed to allow a secondary party to be more easily convicted than the principal person committing the crime.
When approaching cases involving accessory liability, foresight can now act as evidence of intention but it cannot be conclusive of it. Therefore, where a group of people attack someone and one member delivers a fatal blow, each denying that they are the culprit, as the law now stands the prosecution can still adduce evidence that the group may have had foresight that serious injury or death may occur; but the prosecution will need to prove, so that a Jury are sure, that all members of the group actively assisted or encouraged another member to cause serious injury or death.
A person who intentionally encourages or assists the commission of a crime will still be as guilty of it as the person who commits it. Additionally a Jury may be entitled to infer intentional encouragement or assistance from a person’s behaviour, such as knowledge that a person is carrying a weapon. If a person participates in a crime in circumstances which a reasonable person would realise involves a risk of serious harm and death results, they would be liable for manslaughter.
The Supreme Court has identified that the convictions for both Jogee and Ruddock should be set aside. However, both parties have been asked to provide written submissions on whether there should be a re-trial for murder or whether the convictions for murder should be replaced by convictions for manslaughter.
FOLLOWING THE JUDGMENT
The Jogee and Ruddock judgment appears to be more in line with the intention of Parliament and their approach to inchoate offences in the Serious Crime Act 2007. Part 2 of this Act replaced the common law offence of incitement by creating new law at sections 44 to 46 which include three inchoate offences of intentionally encouraging or assisting an offence, encouraging or assisting an offence believing it will be committed and encouraging or assisting offences believing one or more will be committed. It is yet to be seen whether there will be any further legislative change, however these offences seemingly fit with the reasoning of the Supreme Court.
Will it open the floodgates for people to appeal convictions?
Since the decision of the United Kingdom’s highest court on 18 February 2016, there has been much speculation as to whether or not those convicted under the old law may have a right of appeal. In anticipation that the floodgates may begin to open, the situation regarding past convictions has been addressed in the Supreme Court’s judgment (at para 100):
“The effect of putting the law right is not to render invalid all convictions which were arrived at over many years by faithfully applying the law as laid down in Chan Wing-Siu and in Powell and English.”
It does not follow that simply because the law has changed, a person convicted under the previous law is now rendered not guilty of the offence. At the time that they were convicted of the offence the law was correctly and faithfully applied as it then stood. Despite this, it cannot be concluded with any certainty that such a person would not have a right of appeal if that appeal were brought within time. It is, however, a well known rule of the criminal law that an appellant must serve a notice of appeal on the Crown Court office not more than 28 days after conviction, sentence or order as per the Criminal Procedure Rules 68.2. We are additionally assisted by case law on this point, as stated by Geoffrey Lane LJ in Mitchell (1977) 65 Cr App R 185,189:
“…the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions…have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction.”
The Supreme Court in Jogee and Ruddock goes on to say (at para 100):
“Moreover, where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That court has power to grant such leave, and may do so if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken.”
The Court has attempted to dissuade appeals by setting out, in clear terms, the unlikely position that anyone would be granted exceptional leave to appeal out of time. Nevertheless, it is anticipated that there will be an influx of attempted appeals and the outcomes are dependent upon the assessment of the Court of Appeal. What we can say with certainty is that the decision in Jogee and Ruddock ought not to affect a Jury conviction which was based on intention, as this would fall within the updated legal interpretation of accessory liability. If a person was convicted of an offence solely based on foresight within a so-called joint enterprise, and no other evidence was produced, this conviction may be eligible for consideration for appeal assuming it is not barred for procedural reasons.
One case in particular seems to have perplexed the media when considering possible appeals: R v Dobson  EWCA Crim 1256, also known as ‘the murder of Stephen Lawrence’. On reflection, any appeal against the conviction of the defendant, Gary Dobson, faces two major barriers. Firstly, leave to appeal has previously been sought and refused by the Court of Appeal. This means that the case can only be appealed if it is referred by the Criminal Cases Review Commission (CCRC) where there is a real possibility that the conviction would not be upheld. Additionally the trial judge, in his sentencing remarks, did not appear to rely on a test of foresight. Treacy J instead refers to Dobson being ‘aware’ and that the person who used the knife did so with his ‘knowledge and approval’ in a ‘deliberate concerted attack’. This is arguably more damning as it appears to place Dobson within the corrected law as set out by the Supreme Court.
The judgment of the Supreme Court in Jogee and Ruddock has been labelled by some as one of the most important and historic decisions within criminal law. It has corrected an illogical principle, in so far as it previously meant for a lower mental threshold for an accessory to murder than that required of a principal. This is a correction that is perhaps overdue, the problem having been long appreciated yet in place for over thirty years, and it is a welcome change in the interests of justice. In light of the recent decision, the legal community shall wait with baited breath to see if the CCRC refer any accessory liability cases for consideration.
Colleton Chambers, February 2016