JOGEE - PARITY AND CLARITY?

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
parties”.
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.
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