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Tom Edwards looks at the impact of the shift from Joint Enterprise to Common Purpose in the five years since Jogee, and considers its impact in both the Crown Court and Court of Appeal.
The issue of criminal liability for accessories has long been problematic for all involved with the Criminal Justice system. The case of Jogee  UKSC 8 marked a dramatic departure from the old law. Liability is now only imposed in cases where a jury are sure of a participant’s knowledge of the principal’s crime. Prior to this, mere foresight of a possible outcome was sufficient to lead to criminal liability. Yet despite the change, almost no appeals have resulted in success and, some five years down the line, a review of appellate authorities might lead one to think that, despite the proclaimed sea-change, very little has in fact altered. But whilst the appellate decisions may not seem to give much cause for optimism, the practical effect of Jogee should mean that there are fewer convictions at first instance. Therefore, there is clear cause for optimism for those representing defendants previously caught by the doctrine of joint enterprise.
“Joint enterprise” and “parasitic accessorial liability” are seen by many as synonymous with injustice. Often invoked in cases involving gang-related violence, the doctrine was seen as having a disproportionate effect on youths and defendants from a BME background. The doctrine originated in the case of Chang Wing-Siu  AC 168. Justified in part in the name of public policy considerations, the effect of Chang Wing-Siu was to dilute the mens rea for secondary parties. So much so that it led to the perverse situation that, whilst the principal needed to have formed mens rea for the offence (for murder, either an intent to kill or cause grievous bodily harm), an accessory needed only to have foreseen the possibility that the principal would commit the act with the requisite mens rea.
Intellectually, this was difficult to justify and practically difficult to rationalise. Anyone who watched the BBC documentary “Guilty by Association” will recall the murder of Nicholas Pearton, a victim of a stabbing in an incident between rival factions from Sydenham and Grove Park. Nine youths were tried when only one was the stabber. The stabbing took place in a shop on a high street. One youth, J, was at the other end of a nearby park, approaching 120 metres away from the murder when it happened. He was nonetheless convicted of murder based on the presence of his DNA on two knives found within the park. On the other hand, a boy three metres from the offence was convicted only of manslaughter.
Whatever way one looks at the above facts, it is difficult to rationalise in either logic or common sense. The case shows how the jury’s task of examining a defendant’s mind or foresight was always going to be a difficult one. Especially so when dealing with adolescent boys. It is no wonder that there were anomalies, inconsistencies, and cases which had the bitter aftertaste of injustice.
Jogee was therefore a long overdue, welcome and refreshing change of tack from the Supreme Court. It was always going to take a bold decision to change the law in this area and describing Chang Wing-Siu as a “wrong turn” was certainly that. Now an accused must be proven to have “knowledge of the essential matters constituting the offence” before an accessory can be found guilty. Foresight is now relegated to evidence of the intention but not its equivalent.
Post-Jogee authorities though have shown that the case has not had the impact that practitioners thought it would. Also in 2016 was the case of Anwar  EWCA Crim 551. This case showed that, whilst there may have been a change of approach, this was not a complete judicial about-turn. Here, the Court of Appeal said that in the event of an agreed common purpose, where there must have been foresight of another offence being committed, it will be a “question of fact for the jury in all the circumstances”. In other words, forget any hope of succeeding on a submission of no case to answer.
The other significant part of the judgment in Anwar was to note that the accessory’s lack of knowledge might not exonerate him completely. Although each case would be fact-dependent, the more likely outcome would be a conviction for a lesser offence such as manslaughter. One can readily envisage how, if tried under the new law, J (above) might well have escaped a conviction for murder but still been convicted of manslaughter.
Jogee though also addressed the concept of an “overwhelming supervening act”. Superficially this sounds like an attractive, defence-friendly concept. Surely simply being unaware of the weapon would mean more defendants would be found not guilty? Again though, this was not the going to be a get-out clause for defence teams. In Tas  EWCA Crim 2603, a fight in a student halls of residence lead to the fatal stabbing of the complainant. Mr Tas claimed he had no knowledge of the knife but had attended knowing that there would (at the least) be a fist fight. He had left the scene of the murder (committed by his co-defendant) prior to the fatal wound being delivered or a knife produced.
Tas’ conviction for manslaughter was upheld by the Court of Appeal. The Court agreed with the trial judge that, as manslaughter involved unlawful killing without the intent to kill or cause grievous bodily harm, knowledge of the knife was an issue of evidence going to intention, rather than being a legal matter which took his actions completely outwith the scope of the common purpose. The fact that weapons were used (and used to kill), would be treated no differently to a case where someone was kicked or punched to death.
In order for an act to be an “overwhelming supervening act”, it must be of such a character that it relegates other actions to history. In Tas, the Court of Appeal said that the use of the knife was an “escalation”, rather than something so wholly out of step with the events of that evening such that it would be an overwhelming supervening act.
Jogee was (and still is) a significant change in the law. The change though didn’t have the initial impact that some anticipated. Certainly, not so much so that a raft of convictions would be overturned. As of 2021, only one conviction has been overturned despite numerous attempts by numerous appellants. Mr Jogee himself was retried at Nottingham Crown Court and was convicted of manslaughter as opposed to murder. The test for a successful appeal out of time has proved too onerous a hurdle other applicants thus far.
The one case where the conviction was quashed was McCrilly  EWCA Crim 168. Mr McCrilly was a burgler whose involvement in the burglary was limited to the search of a bedroom. When his co-burgler assaulted one of the elderly residents of the address he shouted at him to stop, helped when the victim had been punched and waited outside for ten minutes. It is rare that many of us are blessed with clients who behave in such exemplary fashion in such difficult circumstances. It is also worth remembering that this was, at its heart a burglary, rather than an offence of violence. It is a case where the injustice is blatant and there for all to see. It is therefore easy to rationalise in light of the new law and difficult to see how in logic, reason or common sense, Mr McCrilly was to be regarded as a murderer.
A reading of the above may lead some to think that, despite being lauded as the new dawn, the practical effect of Jogee was minimal. This particularly given the lack of successful appeals in an area which had received widespread professional, academic and popular criticism. If the only hope anyone ever had for a successful appeal was the case of McCrilly, then you may as well tear up your Grounds of Appeal now!
What is clear though is that every case is fact dependent. This has been emphasized by the Court of Appeal across the authorities. Mr McCrilly was, factually behaving in a manner well outside the range of actions normally encountered in people caught up in joint-enterprise violence. As Tas shows, only in the clearest of cases will an overwhelming supervening act be found to have overwritten any existing culpability that a defendant may have. It is worth bearing in mind that group responsibility is still a divisive and controversial issue. Jogee never was and never could, change the law quite so fundamentally as was hoped by some that it would.
For all that though, practitioners can be optimistic. For the Prosecution, the new test of knowledge is far less controversial and brings the added benefits of clarity and certainty. For the defence, it is simply a higher hurdle for the Crown to overcome.
Two recent cases I have been involved in have led to acquittals where previously they might not have. One was a murder where the defendant was a few feet from the point where the fatal stab wound was dealt. The second, an attempted murder where three defendants accepted presence and were a matter of feet away when the shotgun was fired. This evidence is obviously anecdotal. Unhelpfully, the Ministry of Justice does not keep statistics on the number of convictions secured under the new law as opposed to the old.
It would be easy to look at the appellate landscape and conclude that Jogee had not changed a great deal. Whether we will ever see the statistical impact of the case is highly doubtful but common sense dictates that it will have a significant impact on the conviction rates for accessories. If nothing else though, the change clearly brings with it a greater sense of justice, clarity of the law and certainty over a jury’s verdict. This is clearly something we should all be grateful for.
Tom Edwardsis a barrister specialising in serious crime including murder, attempted murder, serious drugs, fraud and sexual allegations. Tom acts as both leading junior and junior alone. He is currently instructed on a fourteen-handed kidnap and serious drugs case in South London with Encrochat evidence.
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