The question prompts a discussion on joint enterprise liability law, with a special emphasis on

the case of R v Jogee. We will discuss the principles that existed prior to R v Jogee, which were
in the case of Chan Wing Siu, as well as how other jurisdictions such as Australia and Hong
Kong have reacted to the change of law.
Since more than one person might be involved in the execution of a criminal offence, it is not
always essential for the person who commits the crime to be the only one charged for it; other
people may also be involved in the illegal activity as well, and if someone helps another person
to commit a crime, they may be liable under the principle of joint enterprise liability.
The doctrine of Joint Enterprise liability can be simply explained as to where two or more parties
sharing a common purpose agree to commit a crime and execute that intention, so an accessory is
participation with the principal in committing the offence. An example is the case of Anderson
and Morris where defendant and his friend went to find victim with intent to frighten him
Anderson during the fight stabbed victim and both were charged for manslaughter however the
friend was not liable for manslaughter as he had no idea of the knife.
Person who is the immediate cause/main offender of the crime of Actus reus is known as
principal
Any other person, other than the principal offender, who intervenes in the commission of a crime
and assists or encourages the principal offender without fulfilling the actus reus of the offence, as
specified in section 8 of the Accessories and Abettors Act 1861 which states that “Whosoever
shall aid, abet, counsel or procure the commission of an indictable offence shall be liable to be
tried, indicated, and punished as a principal offender” the purpose for the enactment of the act
was to make it more difficult for people to escape liability for assisting others in committing
crime.
In the past, being a secondary participant required both Actus reus and Mens rea. The Actus reus
required the accessory to aid or abet the principal in committing the crime, aid refers to help or
assist, whereas abet means to encourage or incite. Under Accessoryship, the liability for
secondary party arises not from what he has done but from what the principal has done, and
therefore the accessory cannot be held liable for any part in the offence if the principal does not
commit a crime as in the Thornton v Mitchell case where the bus conductor signaled for the
driver to back up and he hit two people who were killed. The driver was not guilty as he relied
on the conductor’s guidance and was not reckless, and on appeal the driver's conviction was also
overturned as if the principle had not committed the Actus reus of an offence the accessory
cannot held liable either
The Mens Rea requirement was described by Delvin J in NCB v Gamble that requires intention
to assist or encourage as well as a knowledge of circumstances and Whenever Principal commits
a crime in any of the ways that Accessory must have assisted or intended to assist, A is equally
guilty. Likewise, the only question that matters is that whether A was in fact assisting or abetting
with intent and it makes absolutely no difference as to whether A was present at the crime site or
interacted with Principal.
In the R v. Smith case, prior to the wrong turn following the case development in the Chan wing
Siu, the pre-judicial rules were given whereas in R v Smith the courts would look at the intention
of the secondary party for conviction and the foresight of principal committing an offence was
not enough to prove Mens rea for Murder. The courts eventually adopted this approach in the
case of R v Reid, holding that it is inadequate to convict for murder on the basis of foresight, and
that courts should instead focus on the intention rather than the foresight. In the important case of
Chan wing Siu, appellant with two others entered the flats two visit victims and recover some
debt for recovering the debt knives were used for threatening where one appellant killed victim
with his knife others knew he was carrying it and it was enough to hold the accessory liable due
to the knowledge of weapon for Principals crime even though he deliberately deviated from
initial purpose and committed a far grievous crime than planned so the secondary party was not
required to demonstrate an intent to aid or abet and from the perspective of secondary party the
ability to foresee the risk of principal committing the crime was sufficient even though not part
of common purpose. The decision in Chan Wing Siu was later applied in R v Powell, where
three men went in to buy drugs and one of them killed the drug dealer who was carrying a
weapon, while the others had knowledge that he was carrying a weapon, and all three were
convicted for it, indicating that the courts were less concerned with the accessory's intent and the
principle's potential to commit a more serious crime than the one originally planned.
The principle was also applied in R v English where it was held that,
“It is sufficient to find a conviction for murder for a secondary party to have realized that in the
course of the joint enterprise the primary party might kill with intent to do so or with intent to
cause grievous bodily harm”
Similarly, in the case of R v Rahman, where Rahman was member of the group that attacked
victim and the victim was severely stabbed and died, he was convicted of murder as he intended
to inflict GBH on the victim satisfying the Mens Rea requirement of murder. The major
constraint was that, due to a lack of evidence, it was fairly easy for the prosecution to identify
accessories involvement in the offence, and the Mens Rea threshold for accessory was lower
than the principal, which was unjust and posed justice concerns.
The criticism to this approach of Joint Enterprise Liability in Chan Wing Siu led to
changes/advancements in the law of joint enterprise liability in the wake the case of R v Jogee
where the courts ruled out that the judgment in Chan Wing Siu endorsed in Powell and English
was a ‘Wrong Turning’ since it permitted foresight of the Principals crime to be sufficient as
Mens Rea for the secondary party and both the cases were held to decided wrongly just because
it was unfair on individual to be convicted for mere foresight.
In the R v. Jogee case, the defendant was convicted of murder; he was drinking and doing drugs
with another person, Hirsi, and they both got very drunk and went to Mr. Reid's house, where she
told them to go because she was waiting for Mr. Fyfe; Hirsi came back when Fyfe was back and
the accused shouted from outside to do something to Fyfe (encouraging); Hirsi threatened to hit
the victim over the head with a bottle but instead stabbed him to death, D was unaware that he
even had a knife. He was at first convicted for murder, in 2016, a retrial was held at Nottingham
Crown Court where his conviction was over-turned when supreme court held that Chan Wing
Siu was wrongly decided.
Supreme Court in its ruling in R v Jogee, Lord Neuberger held that foresight can be used by
prosecution simply as evidence of intent, and that the mental element necessary for secondary
liability is an intention to encourage or aid the principal in committing the crime as if person
anticipates something to happen, does not imply he authorizes it to happen.
However, the main problem that arises, and which was easily foreseeable, is that there has been a
floodgate of appeals lodged by people over there convictions as accessory to offence under the
new law but according to the verdict the reversal did not meant that it would render convictions
invalid which were made following the approach in Chan Wing Siu and Powell and according to
R v Johnson and Others and appeal would only be successful if the jury is convinced that
conviction is declared ‘unsafe’ which meant that the decision would have been different if the
facts were judged according to the amended statute and majority of convictions were not
declared unsafe. Furthermore, it was not followed by other common law jurisdictions, and it was
outright rejected by both Australia and Hong Kong.