criminal law,

Jogee and ‘West Side Story’- Still Unresolved Endings?

By Claudia-Skye Lee Xin May 28, 2021


Have you ever wondered how ‘West Side Story’ might have been resolved in the English courts? In such cases of gang violence, the area of complicity governs the typical situation where the accused (the ‘Accessory’) did not commit the crime but assisted or encouraged the principal offender to do so. This note analyses the impact of R v Jogee, arguably the most seminal case in this area of law,by tracing the legal and social aftermath of the decision. It begins by questioning how Jogee was initially lauded for its reversion back to principle, and the extent to which it truly righted a ‘wrong turn’ in the law by navigating the academic literature on the disputed issue of intention in the Jogee judgement. In discussing the perceived advantages and disadvantages of the current law on accomplice liability, this note ultimately still finds the law wanting of necessary clarifications. Moreover, a holistic approach to reform is required, including ensuring the integrity of prosecution charging decisions by removing the inaccurate racialised gang narrative permeating this area of law. This work was inspired by LSE’s Criminal Law syllabus on the topic of Complicity. I declare that it has not been submitted elsewhere.

Introduction 1

Pre-Jogee,2 a defendant’s accessorial liability could be established via two avenues. First, under section 8 of the Accessories and Abettors Act 1861, where one could be charged with ‘ordinary’ accessorial liability by ‘aiding, abetting, counselling or procuring’ the principal’s offence. Second, via Parasitic Accessorial Liability (‘PAL’), an ‘extended’ form of joint enterprise liability (established in Chan Wing-Siu).3 If two parties undertook a joint enterprise to commit a crime whereby the principal committed a further offence, the secondary would be guilty as an accessory to that further crime (incurring liability ‘parasitic’ on the principal’s crime), if s/he foresaw that the principal would act as s/he did. Jogee purportedly abolished this second route, limiting the basis of criminalising secondary participation to basic accessorial liability.

Jogee involved joint appeals for murder convictions where victims were killed by the principals’ use of a knife. However, the prosecution procured convictions by arguing that the defendants had engaged in a joint enterprise to commit the act which caused the victim’s death. In Mr Jogee’s case, he and Mr Hirsi became increasingly intoxicated whilst together. Later, they visited Mr Fyfe’s residence where they had heated exchanges with Mr Fyfe. Mr Fyfe was subsequently stabbed to death by Mr Hirsi. Mr Jogee had been outside striking a car with a bottle and shouting encouragement at Mr Hirsi to do something to Mr Fyfe. Both men ran off after the stabbing.4 Mr Jogee was convicted on the basis that he foresaw the principal might intentionally cause grievous bodily harm or murder if the circumstances arose. The Supreme Court overturned the conviction and effected a change to the mens rea requirement, requiring him to have known or intended that Mr Hirsi would have intentionally caused grievous harm if the circumstances arose.5

Thus, Jogee’s abolition of the PAL doctrine reflects a swing of the judicial pendulum from a crime-control model based on public policy reasons, back to a due-process model grounded on principled reasons (pre-existing Powell).6 For our purposes, the most salient traits of the due-process model embody the ‘minimal assumption’ that the defendant is innocent until an impartial adversarial trial process. The crime-control model prioritises repression of any criminal conduct and regards preliminary screening by the police and prosecution as ‘adequate guarantees of reliable factfinding’.7

In theory, while Jogee limits the scope of joint enterprise and brings the jurisprudence of joint enterprise back to principled grounds, it does not necessarily eradicate the operation of PAL. In practice, the highly restrictive judicial approach to appeals that has developed since Jogee, and discriminatory prosecutorial framework based upon a racialised gang narrative present additional challenges to the ‘ground-breaking’ status Jogee was lauded for when it was decided five years ago. It is worth mentioning from the outset that joint enterprise is a heavily politicised doctrine, which provided prosecutors with a brutal but effective mode of crackdown on homicide cases. Hence, clarity is needed to prevent undue side effects of the judgement from materialising, and a wider approach to reform is also required to adequately deal with the doctrine’s social impact.

Theoretical Analysis

Jogee abolished the doctrine of PAL, with the central aspect of change involving the fault element required in PAL. It raised the mens rea threshold for the secondary party from foreseeing (established in Chan Wing Siu) to intending to assist or encourage the principal’s actus reus and mens rea in committing the crime (per Attorney General’s Reference (No 1 of 1975).8

Past policy significance of PAL

Simester’s moral forfeiture theory of liability provides a justification in principle for joint enterprise,9 whereby a group constituted by joint enterprise has set itself against the law and society at large. However, given the doctrine’s expansiveness, it is realistically more likely motivated bypolicy concerns of exercising deterrence and public protection. As Lord Steyn in Powell 10 points out, the accessory principle is ‘needed and cannot be abolished or relaxed’ because of the ‘social problem’ that ‘criminal enterprises’ often ‘escalate into the commission of greater offences’.11 This understanding aligns with the psychological ‘risky shift phenomenon’, whereby an individual’s estimation of risk is skewed when acting as part of a group and may act in a more extreme manner.12 The House of Lords in Chan Wing-Siu seemed to conceive PAL as essential to prevent an accomplice from evading the consequences of a criminal enterprise, seemingly taking any occasional injustices in its stride as ‘necessary evil’. The stakes are high given that in England and Wales, the accomplice is punished for the same offence as the principal. In effect, it was possible to sentence the accomplice to life imprisonment as long as s/he was reckless to the commission of murder, despite not having intended murder to be committed. The disparity of treatment between the principal and accomplice was particularly problematic for homicide, which has a mandatory life imprisonment sentence. This created a legal limbo between convicting the accomplice for the full offence of murder or letting them go scot free although they may not have been fully innocent. Neither options in this binary system proportionately label the accessory’s liability nor provide the flexibility to charge them according to their degree of involvement.

The developing backdrop of policy reasons has not only caused PAL to incriminate disproportionately but also caused confusion for accessory liability generally. Gnango 13 has exemplified the confusion over joint enterprise, where the victim was caught in crossfire between two gunmen on the way home. Finding that two characters with diametrically opposed intents were engaged in a joint enterprise undermined the assumption that parties in a joint enterprise would be acting in concert. This legal fiction imputed foresight where it was non-existent, equating it to intention, thus revealing a blatant policy-driven approach where joint enterprise principles have been twisted and stretched to establish full liability for murder. As Virgo argues, the judgements of Lords Clarke, Brown and Dyson allowed the significance of the relevance of a joint enterprise to overwhelm the need to prove actus reus and mens rea by ‘completely ignoring’ the two fundamental principles.14This evinces the degree of prevalent confusion that is the ‘characteristic weaknesses’ of a doctrine that was allowed to develop in a ‘pragmatic and unprincipled’ manner.15

Restoration of Principle

Thus, Jogee arguably brings accessorial liability back to principled grounds, righting a ‘wrong turn’ of ‘questionable policy arguments’.16 The PAL doctrine in Chan Wing-Siu had shifted the focus of the mens rea requirement onto the accessory’s foresight on what the principal might do, rather than on his intention of how the principal should act, drastically lowering the threshold for convicting defendants involved in a joint criminal venture. The bar is further lowered in cases where it is unclear whether the defendant is the principal or the accessory; as Gianetto 17 shows, the prosecution need only prove that the defendant possessed the requisite mens rea and contributed to the end result to be held fully responsible for the crime.

In Jogee, the Supreme Court clarified that foresight is no more than ‘evidence’ for the requisite intention; while intention may be ‘conditional’, the jury must be sure that a defendant on trial as a secondary had intended the criminal outcome. This upholds several cardinal principles within the criminal law, including the principles of responsibility 18 that one should only be held responsible for his intended acts, as well as proportionality and fair labelling in sentencing. Pre-Jogee, the judge was obliged to sentence convicted secondary participants to mandatory life imprisonment, although they might have been convicted on mere foresight.19 The situation reeks of injustice with the blatant lack of discretion to mitigate the sentence according to the defendant’s level of involvement. As Wilson and Ormerod argue, if the law wishes to hold a defendant liable for reckless foresight and the ‘danger his own acts excite’,20 the appropriate charge is one of manslaughter (the substituted crime Jogee was sentenced for), but not murder. This has been explicitly confirmed in paragraph 96 of Jogee.21 Now, the possibility of a substitute manslaughter conviction allows for the judge to vary the sentence proportionate to individual culpability.

However, the assertion that complicity has been restricted through the elimination of PAL may not be entirely valid given the blurry intention/foresight distinction and the shifted focus on to conditional intent in Jogee.

Residual Unclarity = Backdoor for PAL?

Although the court recognised that foresight was ‘good evidence’ of intention and that the two were ‘not synonymous’, Jogee is crucially silent on what threshold of foresight from the defendant might enable a jury to infer requisite intent. This could lead to juries readily inferring intent from some ‘middling’ degree of foresight,22 effectively neutralising Jogee’s effect on complicity.

Moreover, the courts left open the question as to whether oblique intention in secondary liability was to be treated similarly as in the law of murder, notably without addressing Woollin where a high threshold of foresight (‘virtual certainty’) is considered sufficient intention. Jogee’s ambivalence may allow the jury to infer an accessory’s intent to murder based on foresight alone, including a lower level than virtual certainty. Krebs highlights that ‘as long as Woollin remains good law’, Jogee cannot achieve its aim of restoring parity of culpability between the principal and accessory.23 However ‘virtually certain’ an accessory may be of a principal’s plans, this remains ‘a far cry from the certainty of future causal developments described in Woollin24: This presumed application of Woollin in accessorial liability cases is also problematic in two senses: First, Woollin is epistemically problematic in the joint enterprise situation where multiple actors are involved. Liability is essentially determined on another free human being acting conditionally. Secondly, even where the accessory has the requisite conditional intent, ‘any number of things might transpire to deter’25 the principal from killing. Given the accessory has no bearing on both of these issues, this reinforces how the accessory’s agency over culpability for their own actions remains lacking due to unclarity as to how other doctrines might apply.

Jogee also recognises that the accessory’s conditional intent will be sufficient mens rea. The enlargement of the role of conditional intent may be restrictive for collateral which is less likely to be attributable to complicity parties due to an evidential lack of prior planning. However, Ashworth highlights how the retention of conditional intent allows the jury to infer intention and ‘tacit agreement’ through foresight in effect, if s/he foresaw that the principal might decide to intentionally inflict that level of harm.26 This bears ‘striking resemblance’ to parasitic accessorial liability as Smith has noted.27 Perhaps, this gives credence to Stark’s observation that Chan Wing-Siu was not a wrong turning of the law as Jogee portrayed, but an honest recognition of what the law is, citing a ‘wider principle’ beyond the standard assisting and encouraging whereby the accessory is criminally liable for the principal’s acts ‘of a type which [s/he] foresees but does not necessarily intend’.28 Hence it seems that PAL has not been abolished but rather ‘tamed’,29 perhaps operating more covertly as recognised by the Hong Kong case Chan Kam-Shing 30 where the formulation of conditional intent in Anwar 31 (‘if the circumstances arise’) was taken to be suggestive that English law was drifting back to joint criminal enterprise. On this basis, Jogee’s restriction of the complicity’s scope seems ‘less than might have been appreciated’32 as it is formal rather than substantive.33

Is Residual Unclarity Entirely Undesirable?

While Jogee signals an intention to return to more principled grounds, more clarity on the requisite threshold of foresight is necessary to ensure legal consistency and certainty, all the more imperative given the heavy charges and high stakes involved. Ashworth has argued against any leeway on the requisite degree of foresight to infer intention, contending that the courts should aim to introduce a tighter definition of intention for such a serious offence and deal with more complicated cases using defences or partial defences.34 However, this argument assumes that Jogee was trying to substantively define intention in the first place. One might question if it is even possible for the Supreme Court to provide a threshold that would provide clear guidance in the multiplicity of joint enterprise cases, without being a mere empty label. It is easier to make a negative statement that foresight was not intention, but harder to provide positive guidance for the threshold of foresight that would amount to intention. Moreover, it is notable that the concept of foresight being taken as evidence for intention was not birthed from Jogee, but appears in virtually every single case. When framing charges, the prosecution works to convince the jury to draw the necessary inference of intention from foresight. As expressed by Lord Bridge in Moloney, ‘[foreseeability] belongs, not to the substantive law, but to the law of evidence’.35

While Ormerod and Laird have rightly criticised the ambiguity of the new mens rea requirement,36 it might be argued ambiguity is not necessarily wholly undesirable. Rather, it may mean flexibility allowing for the law to cater to a range of defendant profiles. Instead of providing a backdoor for the old law to creep in, it might be perceived as a tool allowing the jury to convict where the defendant is highly culpable, similar to the retention of jury ‘moral elbow room’ as in Woollin,37 a term coined by Horder referring to the jury’s discretion on whether the crime fits the defendant’s conduct.38 One’s view of the legal inbuilt flexibility left in Jogee’s wake may to a certain extent turn on one’s trust in the exercise of discretion by the judge and jury. It also allows the accessory a chance to argue that while s/he might have had some level of foresight, it did not amount to intention. Comparatively, the previous approach meant that any foresight made a conviction virtually certain.

Overall, the extent to which complicity has been restricted in practice is questionable. Given the Supreme Court’s vague treatment of the actus reus requirement of joint enterprise as a ‘common unlawful purpose’, the fundamental effectiveness of Jogee’s purported abolition of PAL is debatable. Hence, Virgo’s perspective of the implicit existence of PAL as a ‘backdoor’ is arguably more convincing than Simester’s view that PAL has been successfully abolished by Jogee’s return to principle.

Observations in Practice

Moreover, the theoretical potential for PAL to creep back into the law is an even more realistic practical concern when contextualised in the reality of discriminatory prosecutorial practices, coupled with low prospect of successful appeals.

High threshold for appeals

Ormerod and Laird have postulated that the Supreme Court may have intended for conditional intent to apply only in limited circumstances.39 However, Dyson points out that in practice, a defendant convicted under PAL may still be liable through having conditional intent that the principal will commit the crime.40 This was starkly demonstrated in R v Johnson and Others, 41where the Court of Appeal faced a range of appeals contending wrongful convictions under the old law.Yet, it appeared surprisingly easy to establish that accomplices liable for PAL would now be convicted of murder based on conditional intent.42 The court appeared confident that in all cases, the appellants had the ‘necessary conditional intent’ that the weapon be used with intent to kill or cause grievous bodily harm.

To bring an appeal against a conviction ‘out of time’ (lodged over 28 days post-conviction), an applicant needs ‘exceptional leave’,43 and this will only be granted if the applicant can demonstrate having suffered ‘a substantial injustice’ due to the change in the law. The Court of Appeal made clear that they were not interested in investigating whether the change might have made a difference to the verdict, or whether the applicant suffered adverse consequences from conviction, such as stigmatisation.44 The court admitted this was ‘a high threshold’45 but it has proven relatively insurmountable. To date, only one case (R v Crilly 46) has successfully appealed under Jogee,47 and the Court of Appeal was clear to present a ‘faithful’48 adherence to the restrictive approach in Johnson. The focus is not on jury misdirection but the basis of prosecution itself - in Crilly, the prosecution’s case was evidently ‘to all intents and purposes a case about his foresight’,49 as opposed to intent to cause grievous bodily harm.

Unchanged framework of discriminatory prosecutorial practices and institutionalised racism

Yet, even for the rare successful appeal applicants and defendants post-Jogee, there is little relief in practice. Consideration of the law post-Jogee has shown disappointing realisation of the regressive potential of Jogee