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Dennis Kavanagh considers the Supreme Court’s judgment in Jogee – or the life and death of the doctrine of parasitic liability – and what it means for practitioners, the public and jurisprudence more generally
At para 11 of the judgment of the Supreme Court in R v Jogee [2016] UKSC 8, Lord Neuberger reflects that when it comes to joint enterprise criminality, ‘numbers often matter’.
This was a succinct statement of the value of manpower in organised or gang criminality, though it may be a fitting epitaph for a judgment where the public are encouraged to believe that the numbers now supposedly able to appeal their convictions will see a sort of common-law inspired renaissance in violent crime.
Popular reporting of the judgment holds that the floodgates are well and truly open. This is perhaps deeply unfortunate, because if there was ever a criminal doctrine sensitive to, and crafted in contemplation of what might best protect the public, then ‘joint enterprise’ is it. Not for the first time the work of the courts in this area can be seen as deeply political and sensitive. Statements of public interest and ‘public policy’ arguments are commonplace; whether it be Parker CJ on one side of the debate analysing matters he thought might ‘revolt the conscience of people today’ (R v Anderson and Morris [1966] 2 QB 110), or Lord Steyn on the other issuing this clear policy statement in R v Powell and English [1999] 1 AC 1: ‘The criminal justice system exists to control crime. A prime function of that system must be to deal justly but effectively with those who join with others in criminal enterprises.’
In this piece I want to examine just what the Supreme Court held in Jogee and consider what it means for practitioners, the public, those directly affected by the judgment and criminal jurisprudence more generally. In order to understand the impact of this judgment, it’s necessary to consider exactly where the law was prior to this.
Problematic frontiers
The frontiers between joint enterprise criminal liability and innocent association have long been problematic and many have criticised the doctrine as imprecise and capable of causing injustice. Being neither formal conspiracy law on the one hand, nor any longer a neat system of classification involving legal dramatis personae such as accessories before or after the fact, joint enterprise as a term covers, as it were, a wide multitude of sins somewhere in the middle. As Lord Neuberger observes at para 77 of Jogee: ‘Joint enterprise is not a legal term of art. As the court observed… it is used in practice in a variety of situations to include both principles and accessories.’ Professor Sir John Smith was perhaps being less kind about the doctrine when he christened it ‘parasitic accessory liability’ in the Law Quarterly Review [1997] 113 LQR 453.
At first glance, this is a technical, arcane and irrelevant debate – no doubt to the layman’s eyes the authorities have the appearance of a senseless mess of letters reasoning the hypothetical liability of Defendant 2 and his foresight or knowledge that D1 or D3 may have had a knife and so on. In reality, the doctrine is of fundamental importance and has profound implications for many people’s lives. It’s worth remembering this is a doctrine of global significance. Ruddock, Mr Jogee’s co-appellant was convicted at the Montego Bay Circuit Court. If the Privy Council did indeed take a ‘wrong turn’ in R v Chang Wing Sui [1985] AC 168 they did so when considering a Hong-Kong murder. Further afield, the doctrine reversed in Jogee is alive and well in Australia where it was endorsed and affirmed by the High Court in Clayton v The Queen [2006] 231 ALR 500, despite the memorable (and perhaps foresighted) dissent of Kirby J.
Perhaps foreshadowing how Jogee might come to be regarded in the coming years, Lord Neuberger says of the doctrine of joint enterprise (para 7) that: ‘Each element can be stated in terms that are beguilingly simple, but may not always be easy to apply.’ To understand the authority, it’s necessary to understand the jurisprudential landscape up to this point.
Pre-Jogee in a nutshell
Prior to the decisions of the Privy Council in Chang Wing Sui and the House of Lords in R v Powell and English, a person encouraging or assisting a murder would only be guilty of murder themselves if they had intended to encourage or assist the actual murdering or causing of grievous bodily harm. In simple terms, participation in a gang attack with an intention to cause some harm, or to scare, would be enough for manslaughter if the victim died, but not enough for murder.
Chang Wing Sui and Powell and English changed this position, holding that if a party to a crime foresaw that their accomplice might act as they did, this would be enough. So if Defendant 1 and Defendant 2 went out intending to rob, but D1 murdered in the course of that offence, it would be enough that D2 foresaw such a possibility. In the words of Lord Hutton, ‘the secondary party will be guilty of unlawful killing committed by the primary party with a knife if he contemplates that the primary party may use such a weapon’. There were two justifications for this change:
It is perhaps difficult to overstate the jurisprudential and political significance of Chang Wing Sui and Powell and English. No longer would gang members present at the scene of murders escape with liability (and sentences) for manslaughter. The courts were no longer a forum for entertaining nuanced debate about precise intention, if a defendant was there and foresaw that his accomplice might act as they did, they could expect no mercy from courts meaning to create a law that was effective as well as just. This, it seems, was certainly the view of the Metropolitan Police who at one point produced a series of anti-gang violence posters warning any would-be member of a joint enterprise just how effective the doctrine could be as a tool to combat crime.
The doctrine significantly widened the net of criminal liability, attracting academic criticism and inflaming a public debate as to its fairness. It is no accident, perhaps, that the interveners in Jogee were anti-joint enterprise political pressure groups like ‘Joint Enterprise: Not Guilty by Association’, not just academic purists. Contentious cases, often from areas disproportionately affected by gang violence, came to assume national prominence and (as Lord Neuberger remarked at para 81) a steadily increasing volume of appeals came to suggest the judge-made doctrine was no easy fit in the common law. Irony indeed, perhaps, that a doctrine crafted with nakedly political, so-called ‘public policy’ concerns came to fall in the company of two political pressure groups.
The Jogee revolution
Students of law are taught that the job of a judge is essentially to divine the ethereal, but judicially discernible, true meaning of the common law. The approach is conceptually close to some supernatural judicial omniscience, but has the virtue that decisions are rarely called simply wrong, rather the common law merely incrementally revealed itself and has simply evolved or changed in emphasis. Not so in Jogee, where such euphemisms for judicial error are thin on the ground – in a clear and uncompromising judgment Lord Neuberger lays out (para 74) that the Privy Council’s innovation ‘reclassif[ied] manslaughter as murder’. No feelings are spared at para 82 where a phrase that echoes round the judgment is deployed again, the ‘wrong turn’ taken in Chang Wing Sui and Powell and English. The coup de grace comes one para later, and if this piece is an autopsy on the doctrine of Powell and English joint enterprise liability, then para 83 can be said to have been the point of its death. The Supreme Court ruled in terms that old style joint enterprise was an ‘anomalous departure’ resulting in an ‘over extension in the law of murder and reduction in the law of manslaughter’. The blows continue thereafter: the doctrine created a ‘striking anomaly’, for while the law required a principal, he who murdered, to intend really serious harm or to murder, his accomplice required only the foresight he might do so, in lawyer’s terms, a lower mens rea threshold for liability in the secondary party than the principal. Be in no doubt, the judgment seems to say, parasitic intent is no more.
The public are often badly served by a rather sterile debate on crime. It seems a reflex action to pit those arguing for rational, predictable and fair operation of law against people profoundly and emotionally affected by serious crime. This approach produces dramatic confrontation which some may find entertaining, but says little about the fair or proper operation of the law. If Jogee is remembered for anything, it may well be as a clear and brave return to first principles of criminal law. All demagogues are tough on the unpopular, and in this area of criminal law many practitioners argue the creep of public policy concerns simply cast the net too widely. Juries sometimes have to acquit with a metaphorical peg on their nose because something was plainly up with the evidence. Judges sometimes have to dismiss charges where the public clamour for conviction is deafening. Similarly, many see the Supreme Court as having done the right, rather than the easy thing in this case. The burden and standard of proof across the criminal law of the common law world are often justified on the basis that ‘It is better that ten guilty men walk free than one innocent man be imprisoned’. In a world where ‘tough on crime’ agendas often dominate the political and jurisprudential landscape, many see Jogee as a welcome return to a position where the means can never justify the ends.
Prospective appeals?
In many senses a judgment purely concerned with the rational purity of the common law may have ended with the demise of old-style joint enterprise. But this is a Supreme Court ruling in a real world, and numbers often matter, particularly numbers of appeals. If Jogee offers no euphemisms or comfort to those who argued in favour of the old law, it offers scant comfort, on one view to those who fell the wrong side of the line in the 30 odd ‘wrong turn years’. At para 100 onwards the court quotes with approval Geoffrey Lane J in R v Mitchell (1977) 65 Cr App R 185,189, in a passage that many convicted defendants may regard as chilling:
‘It should be clearly understood, and this court wants to make even more abundantly clear, that the fact there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction.’
The message is clear. Any floodgates supposed to be intellectually opened by this authority should be considered slammed shut by practical considerations of certainty in the law and other such public policy considerations. In a passage likely to attract criticism, this approach is justified in part by a survey of changes to the law of dangerous driving where the court warned of the supposedly ‘alarming consequences of reopening old cases’. Driving is not murder, of course, and this area, and the huge importance it represents in many lives is likely to provide testing times for the Court of Appeal in the months to come. Perhaps proving that criminal law is no exception to the law of unintended consequences, it may be that the ‘appeal block’ paras of Jogee aimed at keeping shut any floodgates receive more appellate attention than the joint enterprise ratio.
Future significance
I recently spoke with two senior practitioners offering views from different sides of the Bar table as to the significance of the judgment. For the Crown I sensed some relief, the point being made that cross examination of defendants had become a highly technical matter. Juries, it was said, sensed an artificial quality to the cross examiner and witnesses’ care in using terms like foresight, contemplation or ‘shared intention’. From the defence perspective, the point was made that joint enterprise Powell and English style liability occurred at a time of fear of gang violence and significantly lower sentences for murder and manslaughter. The doctrine had distended and swollen out of control, it was contended, precisely because of the modern statutory scheme for sentencing murder. Both agreed that indictments alleging and pleas to manslaughter would increase and both welcomed what they called the clarity and logic of the judgment.
So far the reaction, it seems to me, has been largely positive, with practitioners welcoming a return to principles that tend to accord with the sense of fairness of the public, juries and defendants. This bodes well going forward, but the real impact of Jogee may be most keenly felt in cases from the past, and those feeling a ‘substantial injustice’ has been done but unable in law to satisfy the Court of Appeal of that fact.
Contributor Dennis Kavanagh is a barrister at Five St Andrew’s Hill
Dennis is a criminal barrister specialising in serious organised crime and money laundering offences, practising from Five St Andrew’s Hill. He writes about domestic and commonwealth criminal law and current affairs.
This was a succinct statement of the value of manpower in organised or gang criminality, though it may be a fitting epitaph for a judgment where the public are encouraged to believe that the numbers now supposedly able to appeal their convictions will see a sort of common-law inspired renaissance in violent crime.
Popular reporting of the judgment holds that the floodgates are well and truly open. This is perhaps deeply unfortunate, because if there was ever a criminal doctrine sensitive to, and crafted in contemplation of what might best protect the public, then ‘joint enterprise’ is it. Not for the first time the work of the courts in this area can be seen as deeply political and sensitive. Statements of public interest and ‘public policy’ arguments are commonplace; whether it be Parker CJ on one side of the debate analysing matters he thought might ‘revolt the conscience of people today’ (R v Anderson and Morris [1966] 2 QB 110), or Lord Steyn on the other issuing this clear policy statement in R v Powell and English [1999] 1 AC 1: ‘The criminal justice system exists to control crime. A prime function of that system must be to deal justly but effectively with those who join with others in criminal enterprises.’
In this piece I want to examine just what the Supreme Court held in Jogee and consider what it means for practitioners, the public, those directly affected by the judgment and criminal jurisprudence more generally. In order to understand the impact of this judgment, it’s necessary to consider exactly where the law was prior to this.
Problematic frontiers
The frontiers between joint enterprise criminal liability and innocent association have long been problematic and many have criticised the doctrine as imprecise and capable of causing injustice. Being neither formal conspiracy law on the one hand, nor any longer a neat system of classification involving legal dramatis personae such as accessories before or after the fact, joint enterprise as a term covers, as it were, a wide multitude of sins somewhere in the middle. As Lord Neuberger observes at para 77 of Jogee: ‘Joint enterprise is not a legal term of art. As the court observed… it is used in practice in a variety of situations to include both principles and accessories.’ Professor Sir John Smith was perhaps being less kind about the doctrine when he christened it ‘parasitic accessory liability’ in the Law Quarterly Review [1997] 113 LQR 453.
At first glance, this is a technical, arcane and irrelevant debate – no doubt to the layman’s eyes the authorities have the appearance of a senseless mess of letters reasoning the hypothetical liability of Defendant 2 and his foresight or knowledge that D1 or D3 may have had a knife and so on. In reality, the doctrine is of fundamental importance and has profound implications for many people’s lives. It’s worth remembering this is a doctrine of global significance. Ruddock, Mr Jogee’s co-appellant was convicted at the Montego Bay Circuit Court. If the Privy Council did indeed take a ‘wrong turn’ in R v Chang Wing Sui [1985] AC 168 they did so when considering a Hong-Kong murder. Further afield, the doctrine reversed in Jogee is alive and well in Australia where it was endorsed and affirmed by the High Court in Clayton v The Queen [2006] 231 ALR 500, despite the memorable (and perhaps foresighted) dissent of Kirby J.
Perhaps foreshadowing how Jogee might come to be regarded in the coming years, Lord Neuberger says of the doctrine of joint enterprise (para 7) that: ‘Each element can be stated in terms that are beguilingly simple, but may not always be easy to apply.’ To understand the authority, it’s necessary to understand the jurisprudential landscape up to this point.
Pre-Jogee in a nutshell
Prior to the decisions of the Privy Council in Chang Wing Sui and the House of Lords in R v Powell and English, a person encouraging or assisting a murder would only be guilty of murder themselves if they had intended to encourage or assist the actual murdering or causing of grievous bodily harm. In simple terms, participation in a gang attack with an intention to cause some harm, or to scare, would be enough for manslaughter if the victim died, but not enough for murder.
Chang Wing Sui and Powell and English changed this position, holding that if a party to a crime foresaw that their accomplice might act as they did, this would be enough. So if Defendant 1 and Defendant 2 went out intending to rob, but D1 murdered in the course of that offence, it would be enough that D2 foresaw such a possibility. In the words of Lord Hutton, ‘the secondary party will be guilty of unlawful killing committed by the primary party with a knife if he contemplates that the primary party may use such a weapon’. There were two justifications for this change:
It is perhaps difficult to overstate the jurisprudential and political significance of Chang Wing Sui and Powell and English. No longer would gang members present at the scene of murders escape with liability (and sentences) for manslaughter. The courts were no longer a forum for entertaining nuanced debate about precise intention, if a defendant was there and foresaw that his accomplice might act as they did, they could expect no mercy from courts meaning to create a law that was effective as well as just. This, it seems, was certainly the view of the Metropolitan Police who at one point produced a series of anti-gang violence posters warning any would-be member of a joint enterprise just how effective the doctrine could be as a tool to combat crime.
The doctrine significantly widened the net of criminal liability, attracting academic criticism and inflaming a public debate as to its fairness. It is no accident, perhaps, that the interveners in Jogee were anti-joint enterprise political pressure groups like ‘Joint Enterprise: Not Guilty by Association’, not just academic purists. Contentious cases, often from areas disproportionately affected by gang violence, came to assume national prominence and (as Lord Neuberger remarked at para 81) a steadily increasing volume of appeals came to suggest the judge-made doctrine was no easy fit in the common law. Irony indeed, perhaps, that a doctrine crafted with nakedly political, so-called ‘public policy’ concerns came to fall in the company of two political pressure groups.
The Jogee revolution
Students of law are taught that the job of a judge is essentially to divine the ethereal, but judicially discernible, true meaning of the common law. The approach is conceptually close to some supernatural judicial omniscience, but has the virtue that decisions are rarely called simply wrong, rather the common law merely incrementally revealed itself and has simply evolved or changed in emphasis. Not so in Jogee, where such euphemisms for judicial error are thin on the ground – in a clear and uncompromising judgment Lord Neuberger lays out (para 74) that the Privy Council’s innovation ‘reclassif[ied] manslaughter as murder’. No feelings are spared at para 82 where a phrase that echoes round the judgment is deployed again, the ‘wrong turn’ taken in Chang Wing Sui and Powell and English. The coup de grace comes one para later, and if this piece is an autopsy on the doctrine of Powell and English joint enterprise liability, then para 83 can be said to have been the point of its death. The Supreme Court ruled in terms that old style joint enterprise was an ‘anomalous departure’ resulting in an ‘over extension in the law of murder and reduction in the law of manslaughter’. The blows continue thereafter: the doctrine created a ‘striking anomaly’, for while the law required a principal, he who murdered, to intend really serious harm or to murder, his accomplice required only the foresight he might do so, in lawyer’s terms, a lower mens rea threshold for liability in the secondary party than the principal. Be in no doubt, the judgment seems to say, parasitic intent is no more.
The public are often badly served by a rather sterile debate on crime. It seems a reflex action to pit those arguing for rational, predictable and fair operation of law against people profoundly and emotionally affected by serious crime. This approach produces dramatic confrontation which some may find entertaining, but says little about the fair or proper operation of the law. If Jogee is remembered for anything, it may well be as a clear and brave return to first principles of criminal law. All demagogues are tough on the unpopular, and in this area of criminal law many practitioners argue the creep of public policy concerns simply cast the net too widely. Juries sometimes have to acquit with a metaphorical peg on their nose because something was plainly up with the evidence. Judges sometimes have to dismiss charges where the public clamour for conviction is deafening. Similarly, many see the Supreme Court as having done the right, rather than the easy thing in this case. The burden and standard of proof across the criminal law of the common law world are often justified on the basis that ‘It is better that ten guilty men walk free than one innocent man be imprisoned’. In a world where ‘tough on crime’ agendas often dominate the political and jurisprudential landscape, many see Jogee as a welcome return to a position where the means can never justify the ends.
Prospective appeals?
In many senses a judgment purely concerned with the rational purity of the common law may have ended with the demise of old-style joint enterprise. But this is a Supreme Court ruling in a real world, and numbers often matter, particularly numbers of appeals. If Jogee offers no euphemisms or comfort to those who argued in favour of the old law, it offers scant comfort, on one view to those who fell the wrong side of the line in the 30 odd ‘wrong turn years’. At para 100 onwards the court quotes with approval Geoffrey Lane J in R v Mitchell (1977) 65 Cr App R 185,189, in a passage that many convicted defendants may regard as chilling:
‘It should be clearly understood, and this court wants to make even more abundantly clear, that the fact there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction.’
The message is clear. Any floodgates supposed to be intellectually opened by this authority should be considered slammed shut by practical considerations of certainty in the law and other such public policy considerations. In a passage likely to attract criticism, this approach is justified in part by a survey of changes to the law of dangerous driving where the court warned of the supposedly ‘alarming consequences of reopening old cases’. Driving is not murder, of course, and this area, and the huge importance it represents in many lives is likely to provide testing times for the Court of Appeal in the months to come. Perhaps proving that criminal law is no exception to the law of unintended consequences, it may be that the ‘appeal block’ paras of Jogee aimed at keeping shut any floodgates receive more appellate attention than the joint enterprise ratio.
Future significance
I recently spoke with two senior practitioners offering views from different sides of the Bar table as to the significance of the judgment. For the Crown I sensed some relief, the point being made that cross examination of defendants had become a highly technical matter. Juries, it was said, sensed an artificial quality to the cross examiner and witnesses’ care in using terms like foresight, contemplation or ‘shared intention’. From the defence perspective, the point was made that joint enterprise Powell and English style liability occurred at a time of fear of gang violence and significantly lower sentences for murder and manslaughter. The doctrine had distended and swollen out of control, it was contended, precisely because of the modern statutory scheme for sentencing murder. Both agreed that indictments alleging and pleas to manslaughter would increase and both welcomed what they called the clarity and logic of the judgment.
So far the reaction, it seems to me, has been largely positive, with practitioners welcoming a return to principles that tend to accord with the sense of fairness of the public, juries and defendants. This bodes well going forward, but the real impact of Jogee may be most keenly felt in cases from the past, and those feeling a ‘substantial injustice’ has been done but unable in law to satisfy the Court of Appeal of that fact.
Contributor Dennis Kavanagh is a barrister at Five St Andrew’s Hill
Dennis Kavanagh considers the Supreme Court’s judgment in Jogee – or the life and death of the doctrine of parasitic liability – and what it means for practitioners, the public and jurisprudence more generally
At para 11 of the judgment of the Supreme Court in R v Jogee [2016] UKSC 8, Lord Neuberger reflects that when it comes to joint enterprise criminality, ‘numbers often matter’.
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