Today the Supreme Court handed down its judgment in the conjoined appeals of R v Jogee and Ruddock v R  UKSC 8, having heard the latter sitting as the Judicial Committee of the Privy Council. Both cases were appeals against murder convictions founded on a discrete principle of secondary liability, sometimes referred to as ‘joint enterprise’, sometimes as ‘parasitic accessorial liability’ (‘PAL’). The Supreme Court’s judgment:
- Conducts a comprehensive review of the principles applicable to secondary liability for crime, and murder in particular -;
- Analyses the leading Privy Council and House of Lords authorities on PAL -; and hence
- Overturns them, restating the law in the area -.
PAL originated in the Privy Council’s judgment Chan Wing-Siu v R  AC 168, and was approved by the House of Lords in R v Powell; R v English  1 AC 1. Those authorities were cited over 25 times at the highest level before today’s judgment, and abundantly in the Court of Appeal where appeals against convictions based on PAL have been a regular fixture. The PAL principle states that where someone (D2) jointly participates with another (D1) in committing Crime A, and in doing so foresees a possibility that D1 might commit Crime B, D2 can be tried jointly as principal for Crime B if D1 goes on to commit it.
If that’s all a little abstract let’s consider the principle with reference to a basic example. Say D1 and D2 are spontaneously involved in a fight with another group of young men (such that they are involved jointly in an affray or an assault by beating – Crime A). If, based on the fact that he has occasionally seen D1 carry a knife, it can be proven that D2 foresees a possibility that D1 might stab someone (Crime B), under PAL he can be convicted of murder even if it can be shown on the evidence that he did not intend to support D1 in stabbing anyone.
As identified by the Supreme Court’s judgment, the principle had many distortive effects, but of these perhaps three stand out. Firstly, PAL led to the over-extension of the scope of liability for murder. Foresight of a possibility is a strikingly low species of mental culpability on the basis of which to label someone a murderer. As commented by the Supreme Court it “savours… of constructive crime” .
Secondly, it led to the reciprocal under-extension of manslaughter. It is well-established that a co-defendant who participates jointly in an illegal attack, but who lacks the necessary mental culpability for murder – namely intention to cause serious injury or death – can be found guilty of manslaughter (R v Reid (1976) 62 Cr App R 109). So in the gang fight example given above, it remains possible absent PAL that D2 will be convicted of manslaughter, which potentially carries a sentence of life imprisonment. The issue with PAL was its inherent tendency towards over-criminalisation and, in conjunction with the minimum sentencing rules for murder, over-punishment.
A third, related anomaly was the fact that under PAL, the secondary party could be convicted on the basis of a lower level of mental culpability than the person who actually did the damage.
With the help of academic research submitted by the appellants, the Supreme Court’s judgment traces the development of the principles applicable to secondary liability for murder, starting with the fundamental criminal law principle that the person who intentionally assists or encourages a crime can be tried for it as principal. From there, it traces the thread to the point, with Chan-Wing Siu, where things went awry and the Privy Council posited the existence of a wider principle, but only after mistakenly eliding foresight and authorisation (at p.175): “That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorisation, which may be express but is more usually implied…”
Yet as the Supreme Court’s judgment points out, foresight and authorisation are not the same thing. The latter may provide evidence of the former, but nothing more, showing that Chan was based on a fundamental conceptual error. On the basis of a fine-grained analysis of the authorities cited in Chan, the Supreme Court goes on to find that these had been misinterpreted by the Privy Council, and did not support its novel principle of secondary liability, while neither Chan nor the subsequent case law gave sufficient justification for the departure.
While it had been suggested by the Respondents that the Supreme Court should leave any refinement of the principle it deemed necessary to Parliament, the Court considered that as PAL was a judicial innovation, it fell to judges to correct it once it had been shown to be a wrong turn in the law.
In its restatement the Supreme Court essentially returns the law on secondary liability for murder to its pre-Chan position; in order to attract a murder conviction D2 must intentionally assist or encourage D1 to act with the requisite intent for murder. In a given scenario, D2’s foresight may provide convincing evidence that he intended to assist or encourage D1, in another it may not. In a similar vein, the Court deprecates the tendency evident in later PAL authorities to fixate on D2’s knowledge regarding D1’s possession of a weapon when assessing D2’s intentions; the presence or otherwise of weapon is a relevant piece of evidence but, again, it must be assessed with reference to all of the circumstances of the case.
In abolishing PAL the Supreme Court’s judgment is at heart a call for prosecutors, judges and juries to return to the close consideration of the evidence before them without the crutch of a blunt principle which had been shown to run against the grain of the criminal law, while having an inherent tendency towards injustice. On this basis, it can only be seen as a positive turn, or more accurately ‘return’ in the common law.
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