The impact of Jogee (2016) on the doctrine of joint enterprise: A step in the right direction?

English criminal law has long sought to impose liability on those assisting or encouraging a perpetrator of a crime. The Accessories and Abettors Act[1] provided 5 different ways a person could be an accessory to a crime; aiding, abetting, counselling, procuring the commission of a crime or being party to a joint enterprise. R v Jogee[2] indicated that these could be reduced to just two concepts: assisting and encouraging.

Joint enterprise is a situation where several people participate in a common criminal venture and one or more persons commit a further offence going beyond that joint venture. Until the Supreme Court decision in Jogee,[3] prosecutors did not need to prove that an accessory intended to participate in the primary offenders further offence. This was outlined in Chan Wing-Siu[4] which significantly expanded the scope of secondary liability in criminal law.

Under this joint enterprise doctrine, once a shared common purpose had been proved there was no requirement to prove that an accessory intended to assist or encourage a further offence, despite the fact this would be the case under the general principles of secondary liability. All that mattered was the fact an accessory agreed in the common venture of committing the first crime. All that had to be shown was foresight on the part of the accessory that a principle offender might go further and intentionally commit another offence.

There were many criticisms if this approach to imposing liability on others involved in a crime. There were concerns that the law was being used to convict large numbers of young people for crimes intentionally committed by others for which the individuals themselves had little criminal responsibility. This subsequently had impacts on sentencing and raised concerns over all parties being subject to the same sentences, no matter what their role was in the events. In effect the establishment of liability for an accessory depended on recklessness as to what another might do.[5] In it was claimed that “[a] striking illustration of the unsatisfactory state of the law is that we cannot confidently describe the precise scope of joint enterprise liability.”[6] Yet this should not be the case due to the need for the criminal law to be clear and precise in its expression of principles.

The impact of Jogee[7] was to abolish this criticised separate category of joint enterprise in favour of assessing liability under the principles or ordinary secondary liability. This decision has been hailed as a ‘right turn in the English law of secondary liability’.[8] The decision in Jogee[9] has the effect of requiring the mental element of a secondary party to a crime to be an intention to assist or encourage the principal offender to commit the crime. The existence of foresight is no longer sufficient to impose guilt. Yet it may form a part of the evidence of intention to assist or encourage in the commission of a crime. This decision is an important step in aligning the law on assisting and encouraging with general principles of criminal law such as fair labelling, minimum criminalisation and the need for an individual to be criminally responsible for their acts. The judgement is commended for taking the steps to meet the public expectations of justice in criminal law and clarifying confusion.[10]

A number of organisations such as Joint Enterprise Not Guilty by Association (JENGbA) exist as grass root campaigns and have battled to challenge the decisions to imprison people for crimes committed by others.

 

By Beth Carter

Student Intern

[1] Accessories and Abettors Act 1861 Section 8

[2] R v Jogee [2016] UKSC 8

[3] Ibid

[4] Chan Wing-Siu v The Queen [1985] AC 168

[5] Loveless, Allen and Derry, Complete Criminal Law: Text, Cases, and Materials (6th edn OUP 2018)

[6] W. Wilson and D. Ormerod, “Simply Harsh to Fairly Simple: Joint Enterprise Reform” (2015) Criminal Law Review 3, p.4.

[7] R v Jogee [2016] UKSC 8

[8] Lorenza Pasculli, ‘A right turn in the English criminal law: no more anomalous forms of complicity. an important lesson from the UK supreme court’ (2016) Diritto Penale XXI Secolo 1

[9] R v Jogee [2016] UKSC 8

[10] Alex Davison ‘Case Comment: R v Jogee; Ruddock v The Queen (Jamaica) [2016] UKSC 8’ (2016) http://ukscblog.com/case-comment-r-v-jogee-ruddock-v-the-queen-jamaica-2016-uksc-8/

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