Jogee  1 Cr App R 31
Parity and Clarity?
On 18 February 2016, the Supreme Court gave its eagerly awaited judgment in
the case of Jogee on the law of joint enterprise and a particular feature thereof -
parasitic accessory liability.
Parasitic Accessory Liability
That term was coined by Professor Sir John Smith to describe the doctrine laid
down by the Privy Council in the first instance, then subsequently developed by
the House of Lords, in the following two cases:
• Chan Wing-Siu v R (1985) 80 Cr App R 117
• R v Powell; R v English  1 Cr App R 261
The doctrine held that:
If two people set out to commit an offence (crime A), and in the course of that
joint enterprise one of them (D1) commits another offence (crime B), the second
person (D2) is guilty as an accessory to crime B if he had foreseen the possibility
that D1 might act as he did.
D2’s foresight of that possibility plus his continuation in the enterprise to
commit crime A were held sufficient in law to bring crime B within the scope of
the conduct for which he is criminally liable, whether or not he intended it AND
whether or not he encouraged or assisted it.
The Appellants argued that that doctrine – of parasitic accessory liability – did
not reflect the common law.
The point of general public importance that had been certified by the Court of
Appeal in refusing the appeal of Jogee chimed with a general and increasing
unease with the doctrine (although, I add, the Court of Appeal did not go so far as
to grant permission to appeal):
“(2) The current state of the law on joint enterprise over-criminalises secondary
The formulation of the law in Chan Wing-Siu had initially been welcomed by
some as an important weapon in deterring gang violence, but when applied to
the law of murder, produced results that were widely seen as oppressive – for
two reasons in particular.
First, the mens rea for murder includes an intention to cause really serious harm.
In many cases of gang violemce it will not be difficult to conclude that the
participants will have foreseen the possibility that one or more of their number,
even if not they themselves, would at some stage of the proceedings act with
intent to cause really serious harm; and once that step is taken, a fatal outcome
must be seen as at least a possibility.
Secondly, murder is subject to a mandatory life sentence, with the draconian
rules as to the minimum period to serve introduced by Schedule 21 of the
Criminal Justice Act 2003. It was established in Sanchez (2009) 2 Cr App R (S) 41
that those rules apply also to accessories.
Public campaigns were launched to reform the law, seeking to place the liability
of an accessory onto the same basis as a principal. Two of those campaigns, ‘Just
for Kids’ and ‘Joint Enterprise Not Guilty By Association’ were given permission
to intervene in the appeal itself.
Lords Hughes and Toulson (with whom Lord Neuberger, Lady Hale and Lord
Thomas agreed) gave the single judgment of the Supreme Court.
That general unease with the current state of the law was referred to by the
“It cannot be said that the law is now well established and working satisfactorily.
It remains highly controversial and a continuing source of difficulty for trial
judges. It has also led to large numbers of appeals.”
The Supreme Court also criticised the:
“… striking anomaly of requiring a lower mental threshold for guilt in the case of
an accessory than in the case of the principal (paragraph 84).”
So it proved that the law had taken a wrong turn, with the Supreme Court
“…there is no doubt that the Privy Council laid down a new principle in Chan
Wing-Siu”, which was now to be abandoned (paragraph 62).
Authorisation of crime B cannot automatically be inferred from continued
participation in crime A with foresight of crime B (paragraph 66).
If D2 continues to participate in crime A with foresight that D1 may commit
crime B, that is evidence, and sometimes powerful evidence, of an intent to assist
D1 in crime B. But it is evidence of such intent, not conclusive of it (paragraph
Let us measure then the judgment in Jogee against the two criticisms of the
previous law identified by the Supreme Court above, that is, the anomaly of
different mental thresholds for guilt and the lack of clarity, to see the extent to
which those matters have been corrected.
In other words, is there now parity of intention between principal and accessory
and clarity of the law. Hence the title of this presentation.
Turning away from the doctrine of parasitic accessory liability, the Court instead
‘restated’ the following principles (as far as tghey can be readily identified):
• Accessory liability requires proof of a conduct element accompanied by
the necessary mental element (paragraph 7).
• The requisite conduct element is that D2 has encouraged or assisted in
the commission of the offence by D1 (paragraph 8).
• Secondary liability does not require the existence of an agreement
between D1 and D2. Where, however, it exists, such agreement is by its
nature a form of encouragement and in most cases will also involve acts
of assistance (paragraph 78).
• Once encouragement or assistance is proved to have been given, the
prosecution does not have to go so far as to prove that it had a positive
effect on D1’s conduct or on the outcome (paragraph 12), unless anything
said or done by D2 has faded to the point of mere background such that it
can be regarded as spent or has become spent by some overwhelming
intervening occurrence (paragraphs 13 97). In that case, the defendant
will bear no criminal responsibility for the principal’s actions (paragraph
• It is a question of fact and degree whether D2’s conduct was so distanced
in time, place or circumstances from the conduct of D1 that it would not
be realistic to regard D1’s offence as encouraged or assisted by it
• The mental element in assisting or encouraging is an intention to assist or
encourage the commission of the crime (paragraph 9).
• This requires knowledge of any existing facts necessary for it to be
criminal (paragraph 9).
• Where the offence charged does not require mens rea, the only mens rea
required of the secondary party is that he intended to encourage or assist
the perpretrator to do the prohibited act, with knowledge of any facts and
circumstances necessary for it to be a prohibited act (paragraph 99).
• If the crime requires a particular intent, D2 must intend to assist or
encourage D1 to act with such intent (paragraphs 10 & 90).
• There may often be no practical distinction to draw between an intention
by D2 to assist D1 to act with the relevant intention and D2 having the
relevant intention himself. For example, in cases of concerted physical
attack there may often be no practical distinction to draw between an
intention by D2 to assist D1 to act with the intention of causing grievous
bodily harm at least and DS having the intention himself that such harm
be caused. In such cases it may be simpler, and will generally be perfectly
safe, to direct the jury that the Crown must prove that D2 intended that
the victim should suffer grievous bodily harm at least. However, as a
matter of law, it is enough that D2 intended to assist D1 to act with the
requisite intent (paragraph 90).
• The intention to assist, and indeed the intention that the crime should be
committed, may be conditional (paragraph 92).
It is sufficient, for
example, that D2 intends to assist or encourage D1 to act with intent to do
grievous bodily harm at least, in the event that they are met with
resistance (paragraph 92).
• D2 need not encourage or assist a particular way of committing the
offence, although he may sometimes do so. In particular, his intention to
assist in a crime of violence is not determined only by whether he knows
what kind of weapon D1 has in his possession. The tendency to focus on
what D2 knew of what weapon D1 was carrying can and should give way
to an examination of whether D2 intended to assist in the crime charged.
Knowledge or ignorance that weapons generally, or a particular weapon,
is carried by D1 will be evidence going to what the intention of D2 was,
and may be irresistible evidence one way or the other, but it is evidence
and no more (paragraph 98).
Did Jogee succeed?
Did Jogee succeed then in:
(1) removing the anomaly of requiring a lower mental threshold for guilt in
the case of an accessory than in the case of the principal?
(2) in bringing clarity to the law on accessories?
You may have guessed that my answer to both is No, although there are different
views as (1) above, as we will see.
To give credit where it is undoubtedly due, there is absolutely no doubt that
post-Jogee it is not sufficient that D2, in the scenario where two defendants set
out to commit crime A, merely foresaw that D1 might commit crime B. The classic
Chan Wing-Siu formulation has gone for good.
It may be, however, that that is the sole extent to which clarity has been
provided; and other questions are now begged, some of which we will consider.
David Ormerod QC & Karl Laird  Crim LR 539, amongst others, are not
“What is doubtful…is the extent to which the Supreme Court has conclusively
resolved the problems that bedeviled this area of the law.”
David Ormerod QC & Karl Laird  Crim LR 539
Indeed, for reasons we will come on to, Ormerod & Laird conclude:
“Close analysis of the decision in Jogee suggests that the law might not have
changed as significantly as many have assumed. Therefore despite the fact [that
the] Supreme Court has corrected the “wrong turn” taken by the Privy Council in
Chan Wing-Siu, as a matter of substance, not much may have changed.”
(See also Dr Matthew Dyson  Crim LR 638: “What needs careful unpacking
is what the law was changed from, what it has been changed to, and whether the
change will be significant.”)
With those notes of caution ringing in the ears, let me begin with the first of our
‘Striking anomaly of a lower mental threshold’
Has the Supreme Court removed that anomaly?
Well, foresight is no longer good enough for a secondary party. That is clear.
Intention is required for both the principal and secondary party. That is also
Is there a parity of intention, however, between the principal and the
Sir Richard Buxton  Crim LR 324 poses the question in this way:
when the court adopts the formula of intent to assist in the commission of the
principal crime, does it assume also that the accomplice must intend the
commission of that crime?
The President of the Queen’s Bench Division thinks so.
In Anwar  2 Cr App R 23 (one of the few cases so far in which the Court of
Appeal has cited Jogee), Sir Brian Leveson, expressed the obiter view that Jogee
now requires that D2 intended that D1 cause grievous bodily harm or kill if the
Set aside the issue of conditional intent for the moment – which applies equally
to the principal and accessory.
What is being suggested therein is that the mental element for principal and
accessory is the same – both must intend that the victim is killed or caused
grievous bodily harm.
(see also Damian Warburton,  J Crim L 160 at 163: “It is no longer enough
to find only that in the course of their joint crime A, D foresaw that his principal
might commit crime B; D must now, as he must have done prior to the error in
Chan Wing-Siu, intend for this principal to commit crime B in order for D to also
be convicted of it”)
That view is certainly consistent with the passage in Jogee at paragraph 94 in
which the Supreme Court talks about D2 having “a necessary conditional intent
that crime B should be committed”.
David Ormerod QC and Karl Laird in their article also suggest that Jogee requires:
“…that the defendant…intended that the principal will intentionally cause really
serious harm or kill if the circumstances arose.”
 Crim LR 539
In doing so, they draw on the Crown Court Compendium section 7-4 on
Accessory/Secondary Liability (which of course Ormerod had a hand in
Yet, that section puts forward the following under the heading Legal Summary:
• There is no requirement that D and P shared a common intent (7-4.3)
• D’s mens rea is satisfied by proof that D intended to assist or encourage P
• Where P’s offence requires proof that P acted with intent D must intend to
assist/encourage P to act with that intent (7-4.8(5))
I do not see the proposition therein that D2 must intend that at least really
serious harm will be caused – that would amount to requiring a common intent
Indeed, save for the passing reference in paragraph 94 that I referred to earlier,
the Supreme Court never explicitly stated that D2 must intend D1 to commit the
crime (that is, complete the actus reus with the required mens rea).
On the contrary, in paragraph 90 (quoted on PowerPoint display), the fact that
the Supreme Court recognises that there will be cases where there is no practical
distinction to draw between an intention by D2 to assist D1 to act with the
intention of causing grievous bodily harm at least and D2 having the intention
himself that such harm be caused, suggests that there is a legal distinction
between the two, which is confirmed by the next sentence, where the Court
“…As a matter of law, it is enough that D2 intended to assist D1 to act with the
Sir Richard Buxton, having posed the question I mentioned earlier, goes on to
suggest that the Supreme Court may have recognised that the logic of its
rejection of the anomaly of a lower mental threshold for an aider/abettor was
driving towards a single mens rea for both principal and secondary - in the case
of murder, an intention to kill or cause grievous bodily harm; yet recoiled from it
at the last moment.
Why? A single mens rea for both principal and aider/abettor would not cater for
those who lend assistance but are indifferent to whether or not the crime is
A requirement that D2 intended that D1 cause grievous bodily harm or kill is
different to a requirement that D2 intended to assist or encourage D1 to act with
intent to do grievous bodily harm or kill.
The first intention is to cause at least grievous bodily harm – the second
intention may be indifferent as to whether at least grievous bodily harm is
actually caused by D1.
So, it looks to me like that there may well remain a lower mental threshold for
guilt in the case of an accessory than in the case of the principal, albeit not as low
as pre-Jogee (and I am not alone in that view – see Dr Matthew Dyson 
Crim LR 638).
The anomaly of a lower mental threshold quite possibly remains, even if it is less
What about the pursuit of greater clarity in the law on accessories.
The law would have been clearer and better if the Supreme Court had explicitly
said that D2 must intend D1 to commit the crime.
It would also have been better if the Supreme Court had considered the form of
complicity known as procuring, at the same time as dealing with
assisting/encouraging. There can be no doubt that ‘procuring’ requires D2 to
intend D1 to commit the crime (procuring means ‘to produce by endeavour’ –
Attorney-General v Able  QB 795 at 812).
An aider/abettor faces a lower mental threshold than not only the principal but
also the procurer.
Threshold of foresight as evidence of intention?
I addressed the issue earlier as to whether or not there is a parity of intention
required of both the principal and the aider/abettor. What about parity as to the
level of foresight required of the principal and the aider/abettor, before the
requisite intention in either can be found?
The issue is complicated because two different questions are being asked. In
relation to the principal, the issue relates to a consequence, whereas for the
accessory, the issue is partly at least about someone else’s state of mind.
It is clear that foresight is no longer to be equated with intent, but is rather
evidence of intent. Is there, however, a minimum degree of foresight that must
be required before the jury can find that the aider/abettor has the required
The common law, in the context of murder at least, imposes a high threshold on
the types of foresight from which a jury will be entitled to infer intent. After a
period of 25 years or so of incremental narrowing (i.e. from Hyam v DPP 
AC 55 to Woollin  1 AC 82), the House of Lords finally agreed in Woollin
• a jury is not entitled to ‘find’ that the defendant intended to kill or cause
really serious harm unless they conclude that death or really serious
harm was a virtually certain consequence, barring some unforeseen
intervention, and the defendant appreciated that this was the case
There is a threshold on foresight – anything less than foresight of virtual
certainty will not be sufficient to entitle the jury to find intention
In Jogee, the Supreme Court was silent as to any threshold of foresight that a
secondary party must possess before the jury will be entitled to infer the
requisite intent. Will the defendant’s foresight of even the slightest possibility of
the principal intentionally acting in the proscribed way be sufficient for a jury to
be entitled to infer that he possessed the requisite intention? Alternatively, does
there have to be a high level of foresight before the jury will be entitled to infer
from this foresight that he possessed the requisite intention?
I return back to the controversy as to whether or not there is a difference any
longer between the requisite intention in a principal and in an aider/abettor.
If the requisite intention is now the same for both principal and secondary party
– e.g. an intention that at least really serious injury be caused to the victim –
presumably, the courts will simply apply the Woollin approach to both principal
and aider/abettor alike.
But if an intention to assist or encourage D1 to act with the intent to cause at
least really serious injury is different to an intention that at least really serious
injury is caused to the victim, how might the Woollin approach be adapted?
One possibility is that such a direction nevertheless concentrates on foresight of
the consequences of D1’s actions on the victim. The other possibility is that such
a direction focuses on foresight of the consequences of D2’s actions on D1:
“A jury is not entitled to find that D2 intended to assist or encourage D1 to act
with the intent to kill or cause really serious injury….
…unless they conclude that it was a virtually certain consequence of D2’s
assistance or encouragement, barring some unforeseen intervention, that D1
would act with the intent to kill or cause really serious injury, and D2
appreciated that this was the case.”
Consider the following:
D1 and D2 are on a bridge with V. D1 throws V into the river after being
encouraged by D2 to do so, calling out ‘Chuck him in’. V drowns.
In light of Woollin, the judge will direct the jury that in relation to D1 they can
only convict him of murder, if when he threw V into the river, he appreciated
that death or really serious injury was a virtually certain consequence barring
some unforeseen intervention. What about D2? The jury can be directed that as a
matter of law, it is enough that D2 intended to encourage D1 to act with the
intent to kill or cause really serious injury. If D2 denies having such intention,
however, are the jury to be directed that they can infer that intention if D2
foresaw that D1 would act with the requisite intention, so long as D2’s foresight
of that was more than de minimis?
Alternatively, should the jury be directed that they are only entitled to infer the
requisite intent if D2 foresaw that D1 would act with intent to kill or cause really
serious injury as a virtually certain consequence of D2’s act of encouragement,
even if D2 did not appreciate that death or really serious injury was a virtually
certain consequence of the act of D1 that he encouraged?
The issue becomes striking if the Crown cannot establish the identity of the
principal. Ormerod poses the question, in those circumstances is the judge
required to direct the jury - in relation to each defendant - that there are two
different routes to finding intention, depending upon whether they are principal
The Supreme Court failed to specify whether the jury is only entitled to infer the
necessary intention if they are sure that D2 possessed a high level of foresight. It
is unclear whether it is safe to conclude from this omission that the Supreme
Court did not intend for some version of the Woollin direction to apply.
Of course, in most cases, the prosecution will continue to allege that D2 intended
D1 to do the relevant acts and in fact intended D1 to commit the crime. The real
risk is that prosecutors if needed will argue that foresight of a possibility of what
D1 might do, however slim a possibility, is enough to show a conditional
intention to assist or encourage D1, or indeed, a conditional intention that D1
commit the crime.
Problem with Cogan & Leak?
Requiring an intention on the part of the aider/abettor which focuses, in turn, on
the state of mind of the principal may also prove a problem to the principle set
out in Cogan & Leak (1975) 61 Cr App R 217.
In Cogan & Leak, the appellant Cogan was charged with rape of Leak’s wife, and
was convicted, but his conviction was quashed on appeal on the ground that he
believed that Leak’s wife was consenting. Leak was charged and convicted as an
aider and abettor, after he told Cogan, untruthfully, that his wife wanted to have
sexual intercourse with her. The Court of Appeal held that, “The fact that Cogan
was innocent of rape because he believed that she was consenting does not affect
the position that she was raped”. It was also said to be irrelevant to the liability
of Leak as an aider/abettor that C did not intend to have sexual intercourse with
her without her consent.
Yet, under the Jogee formulation of the requisite intent for an aider/abettor, D2
must intend to assist/encourage D2 to act with the necessary mens rea to
commit the offence. If Leak, because he intended Cogan to fall for his deception,
did not intend Cogan to act with requisite mens rea for rape, then Leak is not
guilty as an aider/abettor under Jogee.
Of course, that is only a problem if you think that Cogan & Leak was rightly
decided in the first place. It is, nevertheless, a case firmly established in the
canon of law relating to sexual offences and it may have warranted some
consideration by the Supreme Court as part of its review of accessorial liability.
Conditional intent – restricted to necessity test?
I said I would return to conditional intent and I do so, because another potential
issue arises out of Jogee which may need clarification.
At paragraph 95, the Supreme Court stated:
“…liability as an aider or abettor does not necessarily depend on there being
some form of agreement between the defendant; it depends on proof of
intentional assistance or encouragement, conditional or otherwise. If D2 joins
with a group which he realises is out to cause serious injury, the jury may well
infer that he intended to encourage or assist the deliberate infliction of serious
bodily injury and/or intended that that should happen if necessary. In that case, if
D1 acts with intent to cause serious bodily injury and death results, D1 and D2
will each be guilty of murder.”
Ormerod and Laird ask whether the Supreme Court were suggesting that
“conditional intent applies in only a tightly restricted context: it arises where D
anticipates that P will conclude that it is ‘necessary’ intentionally to kill or cause
It may be more likely that the Court meant no more than that the jury can infer
that D2 had the requisite intention, albeit conditional, if he foresaw that D1
might decide in the circumstances to inflict GBH or death. If that is the correct
interpretation, this serves to illustrate the danger referred to previously arising
from an absence of an explicit threshold for foresight before intention can be
inferred in the accessory.
Whether or not, conditional intent is restricted only to circumstances of
necessity may be a matter which the Court of Appeal needs to clarify.
Actus reus of assisting/encouraging?
Finally, in our list of some of the post-Jogee issues, the Supreme Court
acknowledged in Jogee the difficulty of proving causation between
assistance/encouragement and commission of the crime itself (slide of re-stated
principle on actus reus).
Rather than attempt to identify with any precision the threshold of causation, the
Supreme Court instead opted to fudge the issue by leaving it entirely in the
hands of the jury to decide when it would be ‘realistic to regard [D1s] offence as
encouraged or assisted” by D2.
This fudge reflects an overall failing of the judgment in Jogee to spell out in
principle why D2 should be liable for D1’s crime – it merely restates the fact of
assistance or encouragement and does not deal at all with any possible
justifications for criminal liability for the secondary party, in circumstances
where there remains a lower mental threshold than for the principal and a lower
causation threshold than for the principal.
The result appears to be that it is simply left for juries to decide when D2 has
done enough and been at fault enough to be liable. And that value judgment is a
strange creature in a criminal trial, and particularly in a criminal trial for the
most serious offence of all, murder.
So how does the Crown Court Compendium suggest the jury should be directed
in relation to accessory/secondary liability?
Under the heading “Directions” at the end of chapter 7-4 (a chapter which has a
warning in bold at the outset that ‘This is a complex area of the law”!) it is stated
“The jury must be directed as follows:
• D is guilty of a crime committed by another person (P) if D intentionally
assist/encourages/causes P to commit the crime
• If P’s crime requires a particular intention on P’s part, e.g. murder or a
section 18 offence: This means that D must intentionally
assist/encourage/cause P to (commit the actus reus) with (the required
(1) the CCC rolls up assist/encouraging with procuring so that there is one mens
rea for either base of liability;
(2) in doing so, it does suggest that the jury should be directed that D2 must
intend D1 to commit the offence – both the actus reus and the mens rea, making it
difficult for Cogan & Leak to survive if right but leading to a parity of intention
between the principal and the accessory despite my misgivings;
(3) Query what is the actus reus for murder, which D2 must intend D1 to commit
– death or really serious injury only?
Under chapter 8-1 on ‘Intention’, the court is reminded that in some cases,
“usually where D claims his aim was to achieve a different purpose and he hoped
that the harm for which he is being prosecuted would not arise”, it may be
necessary to give the jury a direction that they are not entitled to find the
necessary intention unless they are sure that the consequence was a virtual
certainty (barring some unforeseen intervention) as a result of the defendant’s
actions and that the defendant appreciated that such was the case (the Woollin
direction). There is, you won’t be surprised, no attempt made to wrestle with
how such a direction may be adapted when the jury are considering the
intention of the accessory rather than the principal (although if the Crown Court
Compendium’s approach on intention is correct – that the intention required is
the same whether principal or accessory – there may not be any difficulty).
So, in conclusion:
(1) It is debatable at least as to whether parity of intention between the
principal and aider/abettor has been reached;
(2) Clarity has been brought to the law on some matters, but there is plenty
of parts of the law on accessorial liability still waiting for the mud to
(3) Particular issues to be resolved include:
a. Whether the mens rea for procuring differs to that for
b. Whether there is a threshold of foresight as evidence of intention,
and if so, at what level is it set;
c. The present status of Cogan & Leak;
d. Whether conditional intent is restricted only to circumstances
where D2 anticipates that D1 will conclude that it is ‘necessary’ to
act with the requisite intention;
e. If the aider/abettor is required to intend that the actus reus of the
offence is committed, in the case of murder does the aider/abettor
need to intend death or will grievous bodily harm suffice.
Finally, you will remember that part of the Supreme Court’s issue with the
doctrine of parasitic accessory liability was the burden it placed upon on the
In the same vein, the Supreme Court were clearly worried about the possible
burden placed upon the Court of Appeal by their own judgment. They dealt with
that issue by discouraging appeals based upon their finding that the law had
been consistently misapplied over 30 years.
Lords Hughes and Toulson were clear that an out-of-time appeal to the Court of
Appeal should not succeed only on the basis that ‘the law applied has now been
declared to be mistaken’ (paragraph 100). Their approach is suggestive of a
‘floodgates’ concern and what emerges is the message to the Court of Appeal that
an appeal should not be allowed unless “a substantial injustice can be shown”.
The quandary, of course, is that surely any conviction, that would not today be
obtained, but was obtained previously on a basis that was wrong in law, is
unjust? What more is required to render that injustice substantial?
Jogee was the lucky one. According to Sir Richard Buxton, his case was selected
by the Supreme Court as the vehicle to address its concern about the doctrine of
parasitic accessory liability. Having ‘re-stated’ the principles for future
defendants, the impression given is of the Supreme Court trying to shut the door
to those who have suffered in the past.
Jogee, however, got his re-trial….
And the jury acquitted him of murder.