Abstract
In these unconnected conjoined appeals both appellants had been convicted of murder after trial, their juries having been directed on the basis of what was widely accepted to be the law of joint enterprise. Each had been present when a principal offender killed their respective victims, and each appellant had, on the findings of their juries, given assistance or encouragement to those principals. The trial judge for each had, as was to be expected at the time, directed the juries in a manner consistent with the Privy Council authority of Chan Wing-Siu v The Queen [1985] AC 168.
In the prosecution of Jogee, the trial judge directed the jury that D was guilty of murder if he had encouraged the principal to attack the victim and had realised that the principal might kill with intent to cause grievous bodily harm (at [104]). In the prosecution of Ruddock, the jury was directed that D was liable for murder if he took part in the offence knowing there was a real possibility that the principal ‘might have a particular intention’ (at [114]). The subject of the appeal was what has been known to lawyers for three decades as the ‘contemplation test’, under which a person may be liable as a secondary party even if he did not intend the principal to commit the relevant offence; the question has been whether the secondary party foresaw (that is to say, contemplated) that the principal might commit that offence.
The judgment does not indicate if either trial judge reminded their jury that they must also find that D had knowledge of the relevant facts that rendered the principal’s act criminal, but Lords Hughes and Toulson described the direction in Jogee as ‘an orthodox direction in accordance with the Chan Wing Siu principle’ (at [104]).
Since R v Powell; R v English [1999] 1 AC 1, the courts have focused a great deal of attention on whether any particular weapon that the principal actually used, where it differed from a weapon the secondary party was aware might be used, was ‘fundamentally different’. In English the House had held the knife used by the principal was fundamentally different from the wooden post that English himself had used and was possibly all he foresaw his principal might use.
In the present appeal both appellants contended that the decision in Chan Wing-Siu was wrong insofar as it sanctioned the contemplation test, and that the authorities following it on that point were therefore also wrong.
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.
Commentary
Wilson and Ormerod (‘Simply Harsh to Fairly Simple: Joint Enterprise Reform’ [2015] Crim LR 3) have described how, until the present decision, secondary liability fell into three forms. The first two are unproblematic and they are that D must either be a joint principal, or an accessory within the scope of s. 8 of the Accessories and Abettors Act 1861. The third was the concept of parasitic accessory liability, which had persistently troubled the courts, academic observers, the press and public, and as Wilson and Ormerod note, even Parliament. Arising as a consequence of the Board’s decision in Chan Wing-Siu, parasitic accessory liability was not labelled as such until the late Professor Sir John Smith QC did so in a lecture that later became his 1997 article (‘Criminal Liability of Accessories: Law and Law Reform’ 113 LQR 453). Lords Hughes and Toulson explained (at [2]) that parasitic accessory liability took the following form: if two people set out to commit an offence (crime A), and in the course of that joint enterprise one of them ([P]) commits another offence (crime B), the second person ([D]) is guilty as an accessory to crime B if he had foreseen the possibility that [P] might act as he did. [D]’s foresight of that possibility plus his continuation in the enterprise to commit crime A were held sufficient in law to bring crime B within the scope of the conduct for which he is criminally liable, whether or not he intended it.
The court has recognised that there had been a blurring of the requirement for D to possess knowledge of the facts that give P’s action its criminal character, and the foresight by D of what P might do. The first of those is certainly an unavoidable and largely unproblematic requirement, and the court noted (at [14]) that this requirement is satisfied if D has knowledge that one of a range of actions, which are criminal, will happen by P’s hand and D knows the character of them. This was the position in DPP for Northern Ireland v Maxwell [1978] 1 WLR 1350, of which the court approved. Smith and Hogan, writing in 1983 (Criminal Law, 5th edn. (Butterworths: London) 130), said that: it seems clear that if he knows the type of crime which is contemplated, that would be enough, even if he did not know the person or thing which was to be the subject of it or time, place or other circumstances in which the crime was to be carried out.
While knowledge did not trouble juries, the foresight requirement certainly will have given them difficulty and, when they convicted absent other evidence of encouragement or assistance such that the liability was purely parasitic, it produced or at least appeared to produce injustice. The foresight test, as Wilson and Ormerod observed ([2015] Crim LR 3, at 12), could be used to convict D of a crime ‘which D may even have counselled his principal not to commit or which was at the periphery of his thinking when lending his support to crime A’, adding that a ‘conviction for murder, rather than manslaughter, [was], given the power of the label and the mandatory sentence,… injustice.’
The authorities over the two centuries that preceded Chan Wing-Siu, considered by Lords Hughes and Toulson (at [4]–[35]), required for the mental element of the offence that D share P’s intention to commit crime B extraneous to their original common purpose of crime A. In doing so D and P would share a new common purpose, and that is what facilitated D’s liability. Specifically, D had to intend that P would commit all the requisite parts of crime B in order for D to acquire liability with P for that crime. The Court of Criminal Appeal’s decision in R v Spraggett [1960] Crim LR 840 is a late example of this before the Judicial Committee of the Privy Council’s (JCPC’s) decision in Chan Wing-Siu, in which Sir Robin Cooke gave the view of the Board that: …a person acting in concert with the primary offender may become a party to the crime, whether or not present at the time of its commission, by activities variously described as aiding, abetting, counselling, inciting or procuring it. In the typical case in that class, 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 culpability lies in participating in the venture with that foresight. (Chan Wing-Siu at p.175)
In returning the law to a rule of intention the Supreme Court has clearly halted the injustice that Chan Wing-Siu instigated, but intention is itself a matter that has been subject to significant redefinition through the latter part of the twentieth century. It is worth noting that Lord Bridge, with whom the rest of the House concurred, held in R v Moloney [1985] AC 905 (at 920F) that how the law indicates what intention is should be ‘clear to judges and intelligible to juries’, something the editors of Blackstone’s Criminal Practice 2016 have interpreted as indicating that intention should mean one thing for the whole of the criminal law (A2.5).
Lords Hughes and Toulson, (at [95]) said the following with regard to what the jury may now legitimately determine when it comes to D’s intent: If [D] joins with a group which he realises is out to cause serious injury, the jury may well infer that he intended to encourage or assist the deliberate infliction of serious bodily injury and/or intended that that should happen if necessary. In that case, if [P] acts with intent to cause serious bodily injury and death results, [P] and [D] will each be guilty of murder.
The relevant recent authorities on the meaning of intention start with the words of Lord Scarman in R v Hancock; R v Shankland [1986] AC 455 at 472: Foresight does not necessarily imply the existence of intention, though it may be a fact from which when considered with all the other evidence a jury may think it right to infer the necessary intent. …the words ‘to infer’… may detract from the clarity of the model direction…. I would substitute the words ‘to find’. Juries frequently have to decide questions of intent (including conditional intent) by a process of inference from the facts and circumstances proved.
Notwithstanding the foregoing, in light of the decision of the Supreme Court that foresight is merely evidence of intention, and not a substitute for intention as the Board in Chan Wing-Siu had preferred, then the usual rules of intention should now permeate through secondary liability as they do the rest of the criminal law. This would be consistent with the words of Lord Bridge in Moloney. Ormerod and Laird (Smith & Hogan’s Criminal Law, 14th edn (OUP: Oxford, 2015) 120) have observed that the Court of Appeal in R v Matthews; R v Alleyne [2003] EWCA Crim 192 did not regard the Opinion of the House in Woollin as creating a rule of law, but merely one of evidence, and the decision of the court in the present case is clearly consistent with this principle.
What is certainly unchanged as a consequence of the Supreme Court’s decision is that for joint enterprise, parasitic accessorial liability is no longer a route to conviction; instead, a common purpose between D and P must be found, although no agreement between them is necessary to establish that. It is no longer enough to find only that in the course of their joint crime A, D foresaw that his principal might commit crime B; D must now, as he must have done prior to the error in Chan Wing-Siu, intend for his principal to commit crime B in order for D to also be convicted of it.
D’s assistance or encouragement never needed to have any forceful effect upon P, who in any case was subject to his own liability for crime B as a principal offender, and accordingly no ‘but-for’ causal connection is required. However, the Crown will now need evidence of D’s intention if it is to succeed against him. As a consequence of the encouragement that the evidence showed Ameen Jogee to have given to his principal, Lords Hughes and Toulson recognised in the present appeal (at [107]) that ‘there was a case fit to go to the jury that he had the mens rea for murder’, and on 7 April 2016 the Supreme Court made an order that Mr Jogee is to be retried on an indictment for that offence. Concurrently sitting as the Board of the JCPC as regards Ruddock, their lordships invited submissions as to what advice they should tender to Her Majesty regarding his disposal, but at the date of writing that outcome is unknown.
Precedent, and the effect on past convictions
The Supreme Court gave a page in consideration to the effect of its decision that there had been a wrong turn in Chan Wing-Siu on whether convictions obtained on the basis of parasitic accessorial liability consequential to the contemplation test might now be successfully appealed.
There are two observations to make, which are whether the court was changing the law or merely recognising that an error in the understanding of it had pervaded, in this case for upwards of thirty years, and whether appeals subsequently brought ought to be allowed.
On the matter of the first, without expressly acknowledging it, there is only one answer that withstands scrutiny and it is that the law as understood from Chan Wing-Siu, and Powell and English was indeed the law for that duration, and that that was indeed changed by the court in this decision. While the language their lordships chose in the present appeal was that the law had merely been misapplied for the last 30 or so years and that they were simply correcting an error, they also held that: It was…within the jurisdiction of the courts in Chan Wing-Siu and Powell and English to change the common law in a way which made it more severe…(at [74]).
First, not long after the decision in Chan Wing-Siu itself, the House of Lords changed its own decision in Anderton v Ryan [1985] AC 560 by means of the Opinion in R v Shivpuri [1987] AC 1. Lord Bridge both expressly acknowledged that his opinion in Anderton, which was in the majority, had been wrong, and corrected it by invoking the authority of the Practice Statement, an action agreed with by the entire Appellate Committee. Without using the language that the Supreme Court (and JCPC) has chosen in Jogee and Ruddock, the House in Shivpuri therefore corrected a wrong turn that it had taken only two years earlier but also recognised that it was necessary to resort to the use of the Practice Statement in order to do so. His lordship said the following: I am thus led to the conclusion that there is no valid ground on which Anderton v. Ryan can be distinguished. I have made clear my own conviction, which as a party to the decision (and craving the indulgence of my noble and learned friends who agreed in it) I am the readier to express, that the decision was wrong. What then is to be done? If the case is indistinguishable, the application of the strict doctrine of precedent would require that the present appeal be allowed. Is it permissible to depart from precedent under the Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234 notwithstanding the especial need for certainty in the criminal law? The following considerations lead me to answer that question affirmatively…The Practice Statement is an effective abandonment of our pretention to infallibility. If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better…(at p.23).
Further, unconnected authority exists to support the debunking of any assertion that the Supreme Court, now, or in any overruling judgment merely readjusts an earlier misunderstanding. In Kleinwort Benson Ltd v Lincoln City Council and other appeals [1999] 3 LRC 219 (House of Lords) Lord Browne-Wilkinson (at 230) had the following to say: The theoretical position has been that judges do not make or change law: they discover and declare the law which is throughout the same. According to this theory, when an earlier decision is overruled the law is not changed: its true nature is disclosed, having existed in that form all along. This theoretical position is, as Lord Reid said, a fairy tale in which no one any longer believes. In truth, judges make and change the law. The whole of the common law is judge-made and only by judicial change in the law is the common law kept relevant in a changing world.
In the present appeal their lordships recognised what the real effect of the decisions in Chan Wing-Siu and Powell and English had been when they said that: …at present under Chan Wing-Siu…foresight is sufficient mens rea for the secondary party to be regarded as guilty of the full offence at common law. (at [86]).
The language of this statement is not speculating as to what a misinterpretation of the law by the JCPC in Chan Wing-Siu might produce; it is a statement of what the common law was at the point at which the statement was made. It therefore follows that Lords Hughes and Toulson were confirming as accurate what counsel for the respondent had suggested (at [3]) that “the law as laid down in Chan Wing-Siu has been in place…”. This was a submission that the court did not disagree with, save that it did reject the proposed disposal that the respondents advanced, which was for the matter to be considered by Parliament, but their lordships appear only to have done so on the basis that: Those who are concerned with criminal justice, including members of the public, are entitled to expect from this court a clear statement of the relevant principles. (at [87]).
If the foregoing is correct then the inescapable conclusion is that those convictions that preceded Jogee and Ruddock, based on the law as stated in Chan Wing-Siu and subsequent authorities cannot prima facie be regarded as unsafe. However unfair it may have been for defendants to be convicted only on the basis of their foresight of intention in the principal, this was a rule of the common law for that duration. Logic suggests that that should be the end of the matter, but, by a peculiarity of the common law, while a subsequent change in the law will not render an earlier acquittal subject to review, which in any case would be incompatible with Article 7 of the European Convention, an earlier conviction may be.
In Kleinwort Lord Browne-Wilkinson continued that
…whilst the underlying myth has been rejected, its progeny – the retrospective effect of a change made by judicial decision – remains. …[A] judgment overruling an earlier decision is bound to operate to some extent retrospectively: once the higher court in the particular case has stated the changed law, the law as so stated applies not only to that case but also to all cases subsequently coming before the courts for decision, even though the events in question in such cases occurred before the [previous view of the law] was overruled. (emphasis added)
Lords Hughes and Toulson were clear that an out-of-time appeal to the Court of Appeal should not succeed only on the basis that “the law applied has now been declared to have been mistaken” (at [100]). Their approach was suggestive of a ‘floodgates’ concern, and what emerges is the message to the Court of Appeal is that an appeal should not be allowed unless, as they said, “a substantial injustice” can be shown. The quandary of course, is that surely any conviction that would not today be obtained but was so under law that has now been declared to have been wrong is unjust? What more is required to render that injustice substantial?
The answer to whether an appeal may be brought is therefore yes, but success, probably even in obtaining leave, will require that that substantial injustice be shown. An appeal brought subsequent to a CCRC reference has, by virtue of s.16C Criminal Appeal Act 1968, no advantage in that regard; something that may quash the hopes of most from three decades worth of appellants looking to overturn their convictions.
The court has taken a thorough and considered look at the area of parasitic accessorial liability and it has arrived at a view that is undeniably more just, and consistent with several centuries of common law authority. D’s foresight of what P might do beyond their common purpose is once again only evidence of his intention to assist P, but that cannot change the fact that foresight was, for a little over 30 years, a rule of law and not of evidence. Those earlier convictions will likely remain.