Video 5.2 R v Jogee

The question raised by these appeals is narrow but important. If the secondary party joins together with someone else, who we will call the Principal, to commit the crime A or he intentionally assists or encourages the Principal to commit the crime A but in so doing the Principal commits the crime B, what state of mind is necessary for the secondary party to be guilty not just of crime A but also of crime B?

Sometimes crime B is murder but the rules are the same whatever it is. The law about assisting and encouraging and also the law of murder is not to be found in an Act of Parliament. It's part of what we call the common law. It has being developed by the courts over centuries. Over a period of about 150 years from the early part of the nineteenth century, the courts developed the rule which in summary provided that the secondary party would be guilty of crime B if he shared the Principal’s intent.

The intent might be a conditional intent, for example, to use serious violence if necessary, to overcome resistance or to avoid arrest but to be guilty of crime B the defendant, a secondly party, had to have a shared intent to assist or encourage the Principal to commit crime B. Put another way, the secondary party would not be guilty of crime B unless he intended to assist or encourage the Principal to commit it, if the occasion arose.

This did not mean that a person who took part in an unlawful venture which any reasonable person would realize carried the risk of causing physical harm and which in fact resulted in death, would go scot free unless he could be proved to have intended to assist or encourage the principle to inflict death or serious harm.

Anybody who took part in a venture of that kind would be guilty of manslaughter, which is a very serious crime. At least unless the death resulted from something which he could not possibly have foreseen. But to be guilty of murder, rather than manslaughter, the secondary party had to have had the intent which we have described.

In 1984 the law began to take a new turn. In that year it was decided by the judicial committee of the Privy Council that the secondary party would be guilty of murder and not just manslaughter if he foresaw it as a possibility that the Principal might act with intent to cause death or serious harm, whether or not the secondary party had any intention to assist or encourage him to do so.

This meant that the mental element necessary for a secondary party to be guilty of murder was less than the intent required for the Principal to be guilty of murder. To be guilty of murder the Principal had to be proved to have intended to cause death or grievous bodily harm. But the test for the secondary party was lower.

That principle introduced by the Privy Council was followed by the House of Lords and has been applied in many subsequent cases. In these appeals the trial judges cannot be criticized for following that principle in the directions to the jury but the court has been asked to re-examine the principle.

In a unanimous judgment the Court today concludes that the development was wrong as a matter of law. The cases relied on for it do not properly support it. There were others which were against it, but those cases were not fully discussed. It went against the normal rule for secondary parties. As applied to homicide it effectively re-drew the line between murder and manslaughter and in doing so it has created anomalies and complexities which have led to a large number of appeals to the court of appeal.

The error was to treat the secondary party’s foresight that a Principal might commit crime B as automatically enough for the secondary party to be guilty of assisting or encouraging the Principal to commit crime B. The correct position is that the secondary party’s foresight of what the Principal might do is evidence from which the jury might infer that the secondary party had intended to assist or encourage the Principal to do that. But it is for the jury to decide on the whole of the evidence, whether the secondary party had the necessary intent.