He shouted at F to leave on two occasions, helped M when F pushed and later punched M. C left and waited outside for ten minutes. United Kingdom, Main Switchboard: It is not built on solid, clear legal foundations and it covers such a broad set of circumstances that it is difficult to think of its use as adding clarity to the understanding of the criminal law. Chambers of David Josse Q.C. This is perhaps a perfect example of PAL acting as a catch all safety net for a prosecution founded on very weak evidence. Before the decision in Jogee, the law had settled on the principle that if you were involved in the first crime and you could foresee the possibility of a second crime being committed by one of your party then you were also guilty of that second crime. For the purposes of this book a somewhat shorter discussion of the history is useful5. 36Crewe, B, A Liebling, N Padfield & G Virgo (2015) ‘Joint enterprise: the implications of an unfair and unclear law’, Crim LR, Vol 4, 252-269. So far the reaction, it seems to me has been largely positive, with practitioners welcoming a return to principles that tend to accord with the sense of fairness of the public, juries and defendants.
I recently spoke with two senior practitioners offering views from different sides of the Bar table as to the significance of the judgment. This applies to anybody who encouraged or helped the principal offender to commit the offence even if they are not present when the offence committed. It is no accident, perhaps, that the interveners in Jogee were anti-joint enterprise political pressure groups like ‘Joint Enterprise: Not Guilty by Association’, not just academic purists. As a result, it seems that the Supreme Court is unlikely to be troubled by the issue any time soon unless the Court of Appeal grants leave but then dismisses the appeal which is an unlikely scenario in light of the comments in Johnson that ‘… if the threshold required to justify exceptional leave to appeal is reached, it is likely to be difficult to conclude that the conviction remains safe’, or, as suggested by Prof Ormerod, the CCRC refuses to refer a case based on Johnson, that decision is judicially reviewed and then appealed by ‘leap frogging’ to the Supreme Court, on the basis that the ‘substantial injustice’ test has been misinterpreted.
At its simplest, that case. On the basis of the one case in which the court did, the positive factors are likely to be the absence of a weapon and any initial agreement to do violence, attempts to stop the violence by others and to withdraw, and limited violence.
Both offenders share the common purpose of the offence and thus this is often known as, One step removed from this simple form of joint enterprise is the role of the accessory. The conduct element or actus reus will involve an act of assistance or encouragement and the Court is clear that the potential way in which this will work will be highly fact specific. But despite (or perhaps because of) these challenges, there has been one successful post-Jogee appeal. He unsuccessfully appealed on the basis that there was no evidence for finding that he had intention to cause any harm. This largely tied the hands of judges. It was an approach most prominent in the judgments of Lords Steyn and Hutton, (but plainly one that caused Lord Mustill some concern, as discussed at paras 54-57). In essence these reasons are that: The Court in Jogee has had the benefit of a ‘much fuller analysis than on previous occasions when the topic has been considered’. The appellant was later arrested and charged with murder as he had engaged in a joint enterprise in which the principal had committed murder. 6Buxton, R (2016), ‘Jogee: upheaval in secondary liability for murder’, Crim LR, Vol 5, pp 324-333. Registered office address: 30 The Parks, Minehead, Somerset, TA24 8BT.All information on this site was believed to be correct at the time of writing. In the words of Lord Hutton, “the secondary party will be guilty of unlawful killing committed by the primary party with a knife if he contemplates that the primary party may use such a weapon”.
One step removed from this simple form of joint enterprise is the role of the accessory. Any errors are his own. Irony indeed perhaps that a doctrine crafted with nakedly political, so-called “public policy” concerns came to fall in the company of two political pressure groups.
The PAL principle should apply to all cases where a parasitic ‘crime B’ occurs (for example one party assaulting a security guard when two people are shoplifting). He will give a talk on the implications of the Supreme Court case of Jogee  UKSC 7 on the law of homicide.
Prior to the decisions of the Privy Council in Chang Wing Sui and the House of Lords in R v Powell and English, a person encouraging or assisting a murder would only be guilty of murder themselves if they had intended to encourage or assist the actual murdering or causing of grievous bodily harm. In cross-examination of C, the prosecution focused on the issue of his foresight that grievous bodily harm would be caused and intended by the other two.
The burden and standard of proof, across the criminal law of the common law world are often justified on the basis that “It is better that ten guilty men walk free than one innocent man be imprisoned”, in a world where “tough on crime” agendas often dominate the political and jurisprudential landscape, many see Jogee as a welcome return to a position where the means can never justify the ends. However in June of that year, in a case from Hong Kong, the Judicial Committee of the Privy Council (the ‘Privy Council’) handed down a judgment which was to substantially change that.
The Court in Anderson and Morris was not resiling itself from the decisions in Wesley Smith and Betty, (where someone joins a multi-handed criminal endeavour, he will not be guilty of murder if there is an escalation of that endeavour, unless he has the mens rea for murder).
That means there is no ‘but for’ test. They had been to the house a number of times that night and on the final occasion the principal entered the victim’s kitchen and stabbed him with a knife he found there. As the Court in Jogee describe it; ‘There was an overwhelming case for inferring that the appellants foresaw the likelihood of resistance and that their plan included the possible use of knives to cause serious harm.’21. In all post-Jogee out of time appeals – that is, those lodged later than 28 days from the date of conviction, and all second appeals brought via the Criminal Cases Review Commission (CCRC) see Johnson  – an applicant requires ‘exceptional leave’, and this will only be granted if the applicant can demonstrate that, as the result of the change in the law, s/he has suffered ‘a substantial injustice’.
In many senses a judgment purely concerned with the rational purity of the common law may have ended with the demise of old-style joint enterprise. Further afield, the doctrine reversed in Jogee is alive and well in Australia where it was endorsed and affirmed by the High Court in Clayton v The Queen  231 ALR 500 despite the memorable (and perhaps foresighted) dissent of Kirby J. The other applications for leave have all been refused on the basis that no substantial injustice has been demonstrated. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole. For the Crown I sensed some relief, the point being made that cross examination of Defendants had become a highly technical matter. The prosecution case that was put to the jury was that the men were a party to an assault with intent to rob. The Supreme Court in Jogee suggest that complicity in manslaughter will provide a straightforward safety-net of liability for those no longer liable for complicity in murder.