R v Jogee [2016] UKSC 8

Jogee and Hirsi spent part of an evening at the home of Paul Fyfe. After hostile exchanges, Jogee was outside shouting encouragement while Hirsi went into the house carrying a knife. Hirsi stabbed Fyfe, who died. Jogee was convicted of murder as a secondary party. The jury had been directed under the doctrine associated with Chan Wing-Siu: Jogee could be guilty if he participated in an attack and foresaw that Hirsi might use the knife with intent to cause death or really serious harm. The Supreme Court heard his appeal together with the Privy Council appeal in Ruddock v The Queen to reconsider whether foresight of a possible further offence was a sufficient mental element for accessory liability.

Is foresight that the principal might commit an offence sufficient for secondary liability, or must the accessory intend to assist or encourage commission of that offence?

The Supreme Court held that the law had taken a wrong turn after Chan Wing-Siu. Secondary liability requires conduct assisting or encouraging the principal and an intention to assist or encourage the offence charged. Foresight that the principal might act with the necessary intent is relevant evidence from which the accessory's intention may be inferred, but it is not a substitute for intention. Conditional intent can suffice: a person may intend to support a crime if a particular situation arises. For murder, the accessory must intend to assist or encourage the principal to kill or cause grievous bodily harm, although the accessory need not desire the victim's death. Jogee's jury had been directed under the erroneous foresight rule, so his murder conviction was set aside and the case was remitted for the appropriate consequential order.

An accessory is liable where they intentionally assist or encourage the principal to commit the offence, with knowledge of the essential facts. Foresight of what the principal might do is evidence of that intention, not an independent or lower form of mens rea.

Jogee restores orthodox accessory principles and rejects the special extended joint-enterprise rule. It does not abolish group liability: participation, presence, encouragement, weapons and foresight may together prove an intention to assist, including conditional intent. Nor did the ruling automatically invalidate every historic conviction. A person appealing out of time must show substantial injustice, not merely that the former direction was used. The judgment also separates accessorial murder from possible liability for manslaughter where the accessory intentionally participates in a related unlawful act that foreseeably causes death.