Supreme Court

Regina v Jogee

[2016] UKSC 8

Privy Council

Ruddock v The Queen

[2016] UKPC 7

Lord Neuberger of Abbotsbury PSC, Lord Thomas of Cwmgied CJ, Baroness Hale of Richmond DPSC, Lord Hughes, Lord Toulson JJSC

18 February 2016

Crime — Homicide — Murder — Joint enterprise — Defendant charged as secondary party to murder — Co-defendant committing act which resulted in victim’s death — Mental element necessary for secondary party to be guilty of murder — Judge directing jury that foresight by secondary party that co-defendant might attack victim with mens rea for murder sufficient — Whether necessary for secondary party himself to have mens rea for murder — Whether to be inferred from foresight of what co-defendant might do

Facts

In each of two cases the defendant was charged with murder, together with a co-defendant, the victim having been killed by the use of a knife by the co-defendant. In each case the prosecution alleged that the defendant was an accessory who had participated in a joint enterprise with his co-defendant to commit the act which had resulted in the victim’s death. In the first case the judge directed the jury that the defendant was guilty of murder as an accessory if he had participated in the attack on the victim and realised that his co-defendant might stab the victim with intent to cause him really serious harm. In the second case the judge directed the jury that the prosecution had to prove that the defendant and his co-defendant had shared a common intention, and that that common intention included a situation where the defendant knew that there was a real possibility that his co-defendant might “have a particular intention and with that knowledge, nevertheless, went on to take part” in the offence. Each defendant was convicted of murder and sentenced to life imprisonment. The Court of Appeal dismissed the defendant’s appeal against conviction in the first case. The Court of Appeal of Jamaica refused the defendant permission to appeal in the second case. The defendants appealed on the grounds, inter alia, that in each case the judge’s directions to the jury on the mental element which had to be proved in cases of parasitic accessory liability were flawed and that the case law which was binding on judges in regard to the directions to be given to the jury needed to be reassessed. The appeals were heard together.

Held

On the defendants’ appeals—

Held, the appeals were allowed. Accessory liability required proof of a conduct element accompanied by the necessary mental element. The requisite conduct element was that the accessory had assisted or encouraged the commission of the offence by the principal. The mental element was an intention to assist or encourage the commission of that crime. Foresight that the principal might commit the offence charged was not to be equated with intent to assist. The correct approach was to treat foresight as evidence, for the jury to consider, of intent to assist and encourage. The law had taken a wrong turn in Chan Wing-Sui v The Queen [1985] AC 168, when it had equated foresight with intent to assist, as a matter of law. It was not legitimate to treat foresight as an inevitable yardstick of common purpose; in doing so the law had departed from the rule which had been well established over many years that the mental element required for accessory liability was an intention to assist or encourage the principal to commit the offence charged. Accordingly the rule which had the judges had followed in giving the directions to the jury had to be set aside. Therefore both convictions would be quashed (paras 79, 83, 87–99).

R v Collinson (1831) 4 Car & P 556, R v Smith (Wesley) [1963] 1 WLR 1200, CCA and R v Reid (Barry) (1976) 62 Cr App R 109, CA approved.

Davies v Director of Public Prosecutions [1954] AC 378, HL(E); and R v Anderson, R v Morris [1966] 2 QB 110, CA considered.

R v Powell; R v English [1999] 1 AC 1, HL(E) departed from.

Chan Wing-Sui v The Queen [1985] AC 168, PC disapproved.

Per curiam

The effect of putting the law right is not to render invalid all convictions which were arrived at over many years by faithfully applying the law as it was then laid down. The error identified of equating foresight with intent rather than treating the first as evidence of the second, is important as a matter of legal principle, but it does not follow that it will have been important on the facts to the outcome of the trial or to the safety of the conviction. Moreover, where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That court has power to grant such leave, and may do so if substantial injustice can be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken. This principle has been consistently applied for many years. Nor is refusal of leave limited to cases where the defendant could, if the true position in law had been appreciated, have been charged with a different offence (para 100).
Decisions of the Court of Appeal (Criminal Division) [2013] EWCA Crim 1433 and of the Court of Appeal of Jamaica reversed.

Appearances

Felicity Gerry QC and Adam Wagner (instructed by Defence Law, Leicester) for the defendant in the first case.

Julian Knowles QC and James Mehigan (instructed by Dorsey & Whitney (Europe) LLP) for the defendant in the second case.

John McGuinness QC and Duncan Atkinson (instructed by the Crown Prosecution Service, Appeals and Review Unit) for the Crown in the first case.

Howard Stevens QC and Rowan Pennington-Benton (instructed by Charles Russell Speechlys) for the Crown in the second case.

Francis Fitzgibbon QC, Caoilfhionn Gallagher, Joanne Cecil and Daniella Waddoup (instructed by Just for Kids Law) for Just for Kids Law, intervening by written submissions only.

Timothy Moloney QC and Jude Bunting (instructed by ITN Solicitors) for Joint Enterprise Not Guilty by Association, intervening by written submissions only.

Reported by: Shirani Herbert, Barrister