Supreme Court Ruling Overturns Criminal Law of Parasitic Accessory Liability

tax calculation qlts mct assessmentThe Supreme Court has redefined the law of secondary participation and joint enterprise in Criminal Law, in the seminal case of R v Jogee [2016] UKSC 8. The ruling overturns twenty years of jurisprudence, which had led to murder convictions based on less stringent requirements than those set out in Jogee. The result may lead to the re-opening of a number of convictions.

Foresight insufficient

The ruling relates to circumstances in which Defendant 1 and Defendant 2 agree on a particular course of criminal activity, Crime A. Then, in the course of carrying out Crime A, Defendant A goes on to commit Crime B. The courts have struggled with the issue of what level of knowledge and intent Defendant 2 needs in order to be convicted for Crime B, under the rules of secondary participation.

Until the ruling in Jogee, it had been accepted that as long as Defendant 2 had intended to support Defendant 1 in committing Crime A, and had foreseen that in the course of committing Crime A, Defendant 1 may also commit Crime B, Defendant 2 could be convicted for Crime B. This rule was particularly onerous in cases where Crime B was murder. It had the effect that Defendant 2 could be convicted for murder by Defendant 1 based on a lower standard of mens rea, or intent, than was required to convict Defendant 1.

Intent required, but foresight may be evidence of intent

The Supreme Court ruled that in order to convict Defendant 2, he must have intended to support Defendant 1 in inflicting at least very serious harm to the victim, which is the level of intent needed for a murder conviction. If Defendant 2 had foreseen that Defendant 1 may also kill the victim, but did not support this act, then this is insufficient to convict Defendant 2 for murder as secondary participant. It was recognised as a matter of practicalities that there is a very slim distinction between foreseeing a possibility of murder, and nonetheless agreeing to proceed with the joint criminal enterprise to commit a lesser crime, and intending to support the act of murder, while proceeding with the lesser crime, and the participant’s foresight of the eventual murder may be evidence of the intent to support it.

Manslaughter as an alternative

The ruling also clarified the role of manslaughter in such cases of secondary participation. Where Defendant 2 did not intend to support Defendant 1’s infliction of very serious harm on the victim, but did intend to support the infliction of a lesser level of harm, such as a battery or actual bodily harm, and the harm that was inflicted by Defendant 1 resulted in the killing of the victim, Defendant 2 should be convicted for manslaughter, instead of murder. This clarification overturns the previous position, that manslaughter was not available as an alternative to murder for secondary participants.

MCT Impact

Candidates on the MCT in July 2016 (and beyond) are reminded that unless otherwise stated in advance, they are expected to apply the law as it stands on the date of the assessment.

Let’s now look at a sample question which is focussed on the topic discussed in the post.

Fact pattern

D1 D2 and D3 agree to rape V. D1 first rapes V, followed by D2, but after D2 has raped V, D1 suddenly produces a knife, which he uses to intentionally kill V. D2 had no idea that D1 had a knife and intended to use it for such a purpose. D3 knew that D1 has violent tendencies, foresaw that D1 might stab V with intent to cause serious bodily harm or to kill and nevertheless assented to participate in the joint enterprise.

Which of the following best states the parties’ criminal liability for murder, if any?

A. All parties incur liability.
B. D1 incurs liability, while D2 and D3 incur no liability.
C. None of the parties incur liability.
D. D1 and D2 incur liability, while D3 incurs no liability.
E. D1 and D3 incur liability, while D2 incurs no liability.

Suggested solution

E is the best option. D1 and D3 incur liability, while D2 incurs no liability. For a participant in a joint criminal enterprise to commit crime A to be liable for the principal committing crime B, the participant must have considered the possibility that the principal may commit crime B under certain circumstances, with the necessary mens rea, and agreed to continue with the joint criminal enterprise on that basis. This is sufficient mens rea for the participant to be liable.

In this case, D2 was entirely unaware of the possibility that D1 would stab V, and had not intended to participate in such a crime. D3, on the other hand, had foreseen such a possibility, and had agreed to it. D3 therefore had the necessary mens rea to be liable.

Updates to the MCT course

Updates containing case law together with other important new laws that have recently come into force (not discussed in this article) will be available to download on our MCT Online Training System later this month.

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