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Five years on, how the post-Jogee law of accessorial liability is working in practice and the position of those ‘on the periphery’. By Professor Felicity Gerry QC, Dr Beatrice Krebs and Oliver Renton
In a recent trial in Preston a jury acquitted a driver of both murder and manslaughter. It is thought to be the first trial where the jury were directed on the principle of an overwhelming supervening act (OSA). The defendant was alleged to be a driver for a stabbing. The issue for the jury was essentially whether others were dropped off for a drugs deal or for violence. It follows that the jury had to consider both knowledge of the essential facts of the acts of others and whether anyone in the driver’s shoes would contemplate what took place outside the car. This scenario – a person in a car, present but not directly participating in violent events – brings to light how the post-Jogee law of accessorial liability works in practice and how trial judges can approach the position of those commonly referred to as ‘on the periphery’. The decision in R v Jogee [2016] UKSC 8 to put an end to parasitic accessorial liability (PAL) should not have made it easier to convict accomplices, but it is concerning if it has indeed taken nearly five years for OSA to be applied. The proper application of Jogee not only allows for clear directions on knowledge and OSA and mixed verdicts but also allows judges to sort out the correct approach at half time.
The phrase ‘joint enterprise’ should generally now be avoided. Precision in the alleged mode of complicity ought to be key: Jogee was highly critical of the expression ‘joint enterprise liability’, with the UK Supreme Court emphasising it was not a legal term of art and had a propensity to be misunderstood ‘to be a form of guilt by association or of guilt by simple presence without more’ (Jogee at [77]). Yet it does still appear in a prosecutor’s lexicon. Putting a case on the basis that accused persons were ‘obviously in it together’ is also improper. It is a narrative not applicable since the abolition of constructive liability for murder in 1967. The modern law looks for subjectivity. In the context of liability as an accessory, the court in Jogee was very clear that the prosecution must prove knowledge of the ‘essential facts’ and acts which demonstrate an intention to assist or encourage that crime. In murder this means the word ‘intention’ may arise three times but not in exactly the same context – intentional (in the sense of deliberate) conduct, an intention to assist or encourage a known crime and, in murder, that is a crime where a principal intends to kill or cause really serious harm.
Post-Jogee, it remains possible to put a case on the basis that the accused acted as joint principal offenders although (with the exception of Murder on the Orient Express) that can be hard to prove. In Regina v Dean Malcolm Lewis, James Marshall-Gunn [2017] EWCA Crim 1734 this led to a successful submission of no case to answer and a failed appeal against that terminating ruling. Without doubt, it remains permissible post-Jogee to put cases on the basis of a shared intention, but such an approach requires precision: individuals who act pursuant to a shared intention (that the crime be committed) can still take on different roles, and the prosecution ought to make it clear, whenever possible, whether it is alleged that an individual acted with a shared intention to commit the crime or acted with a shared intention to assist or encourage others to commit the crime (R v CN [2020] EWCA Crim 1028).
Post-Jogee, ‘shared intention’ appears to be the liability of choice for prosecutors who, instead of seeking a crime A/crime B scenario, seek to prove that everyone was ‘in it together’ and the purpose was violence. In drug deals, robberies and burglaries ‘gone wrong’ this is often unhelpful. An imprecise approach has repercussions for the prosecution. It means that Crown Prosecution Service statistics will be skewed, as charges for murder that should not have been pursued for some accused persons are being recorded as ‘failures’. It is a worrying background to what will no doubt later be claimed to be a ‘problem’ with the criminal justice system. Meanwhile, approaching every case as a ‘shared intention’ case risks the liberty of those wrongly accused of murder, particularly in cases where juries are invited to draw inferences from scant evidence.
The real issue is knowledge, as an individual cannot intend to assist or encourage an offence they do not know about. To even form the intention to assist or encourage one needs to know about the principal offence. Knowledge is either an element of complicity which the prosecution must prove, or knowledge of the essential facts is essential to proof of intention. Either way it is key and must be left to the jury. In cases where the perpetrator remains unknown, this means they must have been one of the group. In this sense, subjective knowledge of the essential facts is not merely an evidential requirement, it requires proof. In Bassett (Jordan) [2020] EWCA Crim 1376 it was acknowledged that proof must be of sufficient strength to rebut other possibilities, such as panic, and, if not, there is no case to answer. In Johnson [2016] EWCA Crim 1613, despite the rather shocking interpretation of the substantial injustice test and the high hurdle it imposes on anyone who would wish to challenge their PAL conviction, the Court of Appeal at least re-emphasised the need for prosecutors to be precise. It is no longer acceptable to take a ‘wait and see’ approach.
In Jogee, foresight was restored to its proper role as possible evidence of intention. It is the use of foresight or contemplation that may have caused more recent confusion, as Leveson LJ recently sought to explain in Tas [2018] EWCA Crim 2603. It is no longer acceptable to leave a case to a jury on the basis that there was a common purpose to assault or rob (crime A) and it was foreseen that a co-defendant would use a knife/cause really serious harm or death (crime B). This would be to restore parasitic accessorial liability expunged by the UK Supreme Court in Jogee. For liability to follow, an alleged accessory must know the essential facts of the crime to come; it is not enough that he ‘must have known’ (see also National Coal Board v Gamble [1959] 1 QB 11 and Johnson v Youden [1950] 1 KB 544).
Their Lordships in Jogee also specifically preserved the principle of OSA as a break in the causative link and/or a question of remoteness. It is possible for death to be caused by some overwhelming supervening act by the perpetrator which nobody in the defendant’s shoes could have contemplated might happen and is of such a character as to relegate his acts to history; in that case the defendant will bear no criminal responsibility for the death (Jogee [2016] UKSC 8, [2017] AC 387 at [97-98]). Causation is not normally needed to establish liability as an accessory (save in cases of procuring), and perhaps it is best to think about OSA as a remoteness principle. As a test for remoteness, it gives power to judges to stop cases at half time.
In cases where someone is not a direct participant or somehow ‘on the periphery’, the likely issues are (a) knowledge or (b) that the further events were not a surprise or escalation. In those cases that get past half time, OSA is a serious consideration to be left to the jury. The language of putting oneself in the shoes of the accused and considering whether their acts are made so insignificant by a subsequent act or event as to relegate these to history is the UK Supreme Court’s best effort at ordinary language as a test for trial judges and juries to follow. For example, it will be key to a stabbing where only one person uses a weapon, including for an alleged driver where the events take place outside a car.
This is not to take the trial in Preston as a precedent but merely to highlight the importance of the trial judge’s decision to factor into his ‘route to verdict’ both knowledge and OSA. In Tas, the Court of Appeal decided convictions were safe in a ‘shared intention’ manslaughter when OSA was not left, but in the Preston matter OSA was relevant to a potential drug deal ‘gone wrong’.
This is a practical example of how their Lordships in Jogee put a brake on expansive liability as a matter of law and how judges can make decisions about which cases to leave to a jury. After expunging parasitic accessorial liability, the UK Supreme Court gave trial judges the power to control which cases are left to the jury and how juries can safely consider evidence through the framework of conduct, knowledge, intention in relation to the alleged crime and when the actual events on the day may be an OSA. Sometimes there is sufficient proof and sometimes there is not; it behoves prosecutors not to overcharge and defence counsel to challenge routine use of ‘shared intention’ as a basis for liability.
Dr Felicity Gerry KC is at Libertas Chambers, London and Crockett Chambers, Melbourne. She is also Professor of Legal Practice at Deakin University. Felicity is well known for her four-year project on Women in Prison for LexisNexis and for taking sentencing appeals for mothers involved in financial crime.
Dr Beatrice Krebs is Associate Professor in Criminal Law at the School of Law, University of Reading.
Oliver Renton is a barrister practising from Crucible Chambers. He specialises in criminal defence with a particular emphasis on serious violent offending and homicide.
In a recent trial in Preston a jury acquitted a driver of both murder and manslaughter. It is thought to be the first trial where the jury were directed on the principle of an overwhelming supervening act (OSA). The defendant was alleged to be a driver for a stabbing. The issue for the jury was essentially whether others were dropped off for a drugs deal or for violence. It follows that the jury had to consider both knowledge of the essential facts of the acts of others and whether anyone in the driver’s shoes would contemplate what took place outside the car. This scenario – a person in a car, present but not directly participating in violent events – brings to light how the post-Jogee law of accessorial liability works in practice and how trial judges can approach the position of those commonly referred to as ‘on the periphery’. The decision in R v Jogee [2016] UKSC 8 to put an end to parasitic accessorial liability (PAL) should not have made it easier to convict accomplices, but it is concerning if it has indeed taken nearly five years for OSA to be applied. The proper application of Jogee not only allows for clear directions on knowledge and OSA and mixed verdicts but also allows judges to sort out the correct approach at half time.
The phrase ‘joint enterprise’ should generally now be avoided. Precision in the alleged mode of complicity ought to be key: Jogee was highly critical of the expression ‘joint enterprise liability’, with the UK Supreme Court emphasising it was not a legal term of art and had a propensity to be misunderstood ‘to be a form of guilt by association or of guilt by simple presence without more’ (Jogee at [77]). Yet it does still appear in a prosecutor’s lexicon. Putting a case on the basis that accused persons were ‘obviously in it together’ is also improper. It is a narrative not applicable since the abolition of constructive liability for murder in 1967. The modern law looks for subjectivity. In the context of liability as an accessory, the court in Jogee was very clear that the prosecution must prove knowledge of the ‘essential facts’ and acts which demonstrate an intention to assist or encourage that crime. In murder this means the word ‘intention’ may arise three times but not in exactly the same context – intentional (in the sense of deliberate) conduct, an intention to assist or encourage a known crime and, in murder, that is a crime where a principal intends to kill or cause really serious harm.
Post-Jogee, it remains possible to put a case on the basis that the accused acted as joint principal offenders although (with the exception of Murder on the Orient Express) that can be hard to prove. In Regina v Dean Malcolm Lewis, James Marshall-Gunn [2017] EWCA Crim 1734 this led to a successful submission of no case to answer and a failed appeal against that terminating ruling. Without doubt, it remains permissible post-Jogee to put cases on the basis of a shared intention, but such an approach requires precision: individuals who act pursuant to a shared intention (that the crime be committed) can still take on different roles, and the prosecution ought to make it clear, whenever possible, whether it is alleged that an individual acted with a shared intention to commit the crime or acted with a shared intention to assist or encourage others to commit the crime (R v CN [2020] EWCA Crim 1028).
Post-Jogee, ‘shared intention’ appears to be the liability of choice for prosecutors who, instead of seeking a crime A/crime B scenario, seek to prove that everyone was ‘in it together’ and the purpose was violence. In drug deals, robberies and burglaries ‘gone wrong’ this is often unhelpful. An imprecise approach has repercussions for the prosecution. It means that Crown Prosecution Service statistics will be skewed, as charges for murder that should not have been pursued for some accused persons are being recorded as ‘failures’. It is a worrying background to what will no doubt later be claimed to be a ‘problem’ with the criminal justice system. Meanwhile, approaching every case as a ‘shared intention’ case risks the liberty of those wrongly accused of murder, particularly in cases where juries are invited to draw inferences from scant evidence.
The real issue is knowledge, as an individual cannot intend to assist or encourage an offence they do not know about. To even form the intention to assist or encourage one needs to know about the principal offence. Knowledge is either an element of complicity which the prosecution must prove, or knowledge of the essential facts is essential to proof of intention. Either way it is key and must be left to the jury. In cases where the perpetrator remains unknown, this means they must have been one of the group. In this sense, subjective knowledge of the essential facts is not merely an evidential requirement, it requires proof. In Bassett (Jordan) [2020] EWCA Crim 1376 it was acknowledged that proof must be of sufficient strength to rebut other possibilities, such as panic, and, if not, there is no case to answer. In Johnson [2016] EWCA Crim 1613, despite the rather shocking interpretation of the substantial injustice test and the high hurdle it imposes on anyone who would wish to challenge their PAL conviction, the Court of Appeal at least re-emphasised the need for prosecutors to be precise. It is no longer acceptable to take a ‘wait and see’ approach.
In Jogee, foresight was restored to its proper role as possible evidence of intention. It is the use of foresight or contemplation that may have caused more recent confusion, as Leveson LJ recently sought to explain in Tas [2018] EWCA Crim 2603. It is no longer acceptable to leave a case to a jury on the basis that there was a common purpose to assault or rob (crime A) and it was foreseen that a co-defendant would use a knife/cause really serious harm or death (crime B). This would be to restore parasitic accessorial liability expunged by the UK Supreme Court in Jogee. For liability to follow, an alleged accessory must know the essential facts of the crime to come; it is not enough that he ‘must have known’ (see also National Coal Board v Gamble [1959] 1 QB 11 and Johnson v Youden [1950] 1 KB 544).
Their Lordships in Jogee also specifically preserved the principle of OSA as a break in the causative link and/or a question of remoteness. It is possible for death to be caused by some overwhelming supervening act by the perpetrator which nobody in the defendant’s shoes could have contemplated might happen and is of such a character as to relegate his acts to history; in that case the defendant will bear no criminal responsibility for the death (Jogee [2016] UKSC 8, [2017] AC 387 at [97-98]). Causation is not normally needed to establish liability as an accessory (save in cases of procuring), and perhaps it is best to think about OSA as a remoteness principle. As a test for remoteness, it gives power to judges to stop cases at half time.
In cases where someone is not a direct participant or somehow ‘on the periphery’, the likely issues are (a) knowledge or (b) that the further events were not a surprise or escalation. In those cases that get past half time, OSA is a serious consideration to be left to the jury. The language of putting oneself in the shoes of the accused and considering whether their acts are made so insignificant by a subsequent act or event as to relegate these to history is the UK Supreme Court’s best effort at ordinary language as a test for trial judges and juries to follow. For example, it will be key to a stabbing where only one person uses a weapon, including for an alleged driver where the events take place outside a car.
This is not to take the trial in Preston as a precedent but merely to highlight the importance of the trial judge’s decision to factor into his ‘route to verdict’ both knowledge and OSA. In Tas, the Court of Appeal decided convictions were safe in a ‘shared intention’ manslaughter when OSA was not left, but in the Preston matter OSA was relevant to a potential drug deal ‘gone wrong’.
This is a practical example of how their Lordships in Jogee put a brake on expansive liability as a matter of law and how judges can make decisions about which cases to leave to a jury. After expunging parasitic accessorial liability, the UK Supreme Court gave trial judges the power to control which cases are left to the jury and how juries can safely consider evidence through the framework of conduct, knowledge, intention in relation to the alleged crime and when the actual events on the day may be an OSA. Sometimes there is sufficient proof and sometimes there is not; it behoves prosecutors not to overcharge and defence counsel to challenge routine use of ‘shared intention’ as a basis for liability.
Five years on, how the post-Jogee law of accessorial liability is working in practice and the position of those ‘on the periphery’. By Professor Felicity Gerry QC, Dr Beatrice Krebs and Oliver Renton
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