The UK Supreme Court ruled that the test used to establish guilt in joint enterprise murder convictions has been misapplied over the past 30 years. The Court unanimously held that the mental element for secondary liability is intention to assist or encourage the crime. The error of the previous interpretation had been to treat foresight of the crime as automatic authorisation of it, whereas the correct rule is that foresight is simply 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.
In a joint appeal of two similar cases, R v Jogee and Ruddock v The Queen, the Supreme Court held that a secondary co-accused’s foresight that a principal attacker might carry out a killing was not sufficient proof of guilt that the co-accused intended to assist or encourage them in this act. This finding means the courts will revert to its previous method of ruling on joint enterprises, which holds that foresight alone of what the principal will do is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage, which itself is the proper mental element necessary to establish secondary liability. In stating the correct test to apply to establish secondary liability, the Court identified the cases of Chan Wing-Siu v The Queen in 1985 and Regina v Powell and English in 1999 as the point where the common law had taken a “wrong turning”.
In its judgment, the Court clarifies that its findings do not necessarily mean that all persons convicted as a secondary party, even in those cases where the law as stated in Chan Wing-Siu was applied, will have suffered an unsafe conviction. In many cases, the outcome may well have been the same even where the corrected rule for joint enterprise is applied. Those who believe the ruling will impact upon their convictions may appeal and it is then for the appeals courts to investigate whether an injustice has occurred in previous courts’ findings of guilt for murder. The clarification delivered by the Supreme Court is unlikely to affect convictions where there is clear evidence that a person has joined in a crime in which a reasonable person realised would result in serious harm and this in turn results in death. The principle that a person who intentionally encourages or assists the commission of a crime is as guilty as the person who physically commits it is also unaffected by the ruling. The Court emphasised the role of a jury in inferring intentional encouragement or assistance from an accused’s behaviour and what he knew.
In the case of the two appellants, Jogee and Ruddock, both men have had their murder convictions set aside and it remains to be seen whether they will be convicted of manslaughter or be sent for re-trial in the context of the application of the Supreme Court’s ruling.
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