The Chan Wing-Siu principle extends liability for murder to a secondary party on the basis of a still lesser degree of culpability, namely foresight only of the possibility of the principle may commit murder but without there being any need for the intention to assist them to do so. It needs to be corrected because it ‘remains highly controversial and a continuing source of difficulty for trial judges.
As discussed above, this is not consistent with the preceding 500 years of case law and is unnecessary on the facts for the purposes of dismissing the appeal. The court dismissed the claim in a judgment which involved analysis of how the principles in Jogee are applied, and the circumstances in which the CCRC should re-open an old conviction.
34Phillips, C & Bowling, B (2017), ‘Ethnicities, racism, crime and criminal justice’, in Liebling, A, Maruna, S & McAra, L (eds), Oxford Handbook of Criminology (6th ed), Oxford: Oxford University Press, pp 190-212. At first glance this is a technical, arcane and irrelevant debate, no doubt to the layman’s eyes the authorities have the appearance of a senseless mess of letters reasoning the hypothetical liability of Defendant 2 and his foresight or knowledge that D1 or D3 may have had a knife and so on. In a House of Lords judgment in 2002 this political process was found to be incompatible with the Human Rights Act 1998, It is in this context that the Supreme Court and Privy Council came to hear these conjoined cases. These are worth setting out as they give a clear indication of the Court’s reasoning and also an explanation of how it felt it had the power to make such significant changes.
Paul Taylor QC specialises in criminal appeals. At the start of 1984 the law in complicity cases, as noted above, was fairly settled. First I will focus on murder. second appeals brought via the Criminal Cases Review Commission (CCRC) see Johnson – an applicant requires ‘exceptional leave You can be found guilty of the offence if you contemplated that a murder would be committed, even if a murder was not actually committed by the principal. In plain terms, our analysis leads us to the conclusion that the introduction of the principle was based on an incomplete, and in some respects erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments. Mr Jogee remained outside when this happened. History and context of the decision in Jogee. Ruddock, Mr Jogee’s co-appellant was convicted at the Montego Bay Circuit Court. The case against the applicant was to all intents and purposes a case about his foresight. When a prosecution can’t prove intention, as was impossible in Mr Ruddock’s case, PAL can be relied upon to found liability for murder in the absence of intention.
For these reasons the Court determined that it was able to reverse the principle in Chan Wing-Siu and return to the law as it stood for centuries prior to that decision. The unfairness is felt most acutely in murder cases because of what has been described as the prosecution’s ‘obvious and profound advantage’ of being able to secure the conviction of defendant A on the limited basis that, having been a secondary party to a joint enterprise with P (Principal) to commit a lesser crime than murder, A realised that P might commit GBH or kill with intent, even if A did not intend this and even if A pleaded with P not to act in that way (see ‘CFA finds “no wrong turning”’: Michael Jackson, Hong Kong Lawyer, March 2017). The evidence against Morris for the manslaughter was ‘unclear’ and the judge directed the jury that if there was a common design to attack the victim and Anderson took out a knife, which Morris did not know of, and used that weapon to kill, then Morris is liable only for manslaughter. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole. At paragraph 100 onwards the Court quotes with approval Geoffrey Lane J in R v Mitchell (1977) 65 Cr App R 185,189, in a passage that many convicted Defendants may regard as chilling: “It should be clearly understood, and this court wants to make even more abundantly clear, that the fact there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction”. However, it does not mean that someone who lacks intent for a murder arising out of a violent ‘crime A’ will be without any criminal liability.
The role of foresight has been greatly overvalued in the post, For these reasons the Court determined that it was able to reverse the principle in, Early on in the judgment the true test for secondary liability in PAL cases is set out. 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. Both agreed that indictments alleging and pleas to manslaughter would increase and both welcomed what they called the clarity and logic of the judgment. App. This was a submission that was accepted by the Court. Perhaps proving that criminal law is no exception to the law of unintended consequences, it may be that the ‘appeal block’ paras of Jogee aimed at keeping shut any floodgates receive more appellate attention than the joint enterprise ratio. The case against Mr Ruddock at trial was pleaded in two alternatives.
In a House of Lords judgment in 2002 this political process was found to be incompatible with the Human Rights Act 199835. But despite (or perhaps because of) these challenges, there has been one successful post-Jogee appeal. The coup de grace comes one para later, and if this piece is an autopsy on the doctrine of Powell and English joint enterprise liability, then para 83 can be said to have been the point of its death. See also Baker, D (2016), Reinterpreting Complicity and Inchoate Participation Offences, London: Routledge. In view of the terms of the directions to the jury here, the Crown does not seek to support the present convictions on that ground. It is possible to take a historical view of the doctrine of joint enterprise that looks back over many centuries. Any floodgates supposed to be intellectually opened by this authority should be considered slammed shut by practical considerations of certainty in the law and other such public policy considerations. To understand the significance of the Jogee case it is worth considering the history and context of the doctrine of parasitic accessorial liability.
It will not be enough to say ‘he would have done it anyway, it didn’t matter that I was there is support’49. For the two appellants in these cases then, the impact of the decision in. At first glance, this is a technical, arcane and irrelevant debate – no doubt to the layman’s eyes the authorities have the appearance of a senseless mess of letters reasoning the hypothetical liability of Defendant 2 and his foresight or knowledge that D1 or D3 may have had a knife and so on.
Mr Crilly [C] sought leave to appeal, out of time, against his 2005 murder conviction ([2018] EWCA Crim 168). It follows, therefore, that Langstaff J had misdirected the jury. This ‘basic accessorial liability’ is also a form of ‘joint enterprise’ as all the parties are engaged in the same enterprise, however it is not this form of joint enterprise with which Jogee is concerned.
The jury had rejected this defence and their verdict meant that he must have intended some, at least minimal, harm be caused by his actions. It was saying that an ‘overwhelming supervening event’ may be the actual cause of the death, rather than a mere escalation of a fight16.
2016/sep/12/ameen-jogee-jailed-manslaughter-police-officer-joint-enterprise-test-case>.
Any floodgates supposed to be intellectually opened by this authority should be considered slammed shut by practical considerations of certainty in the law and other such public policy considerations. While Powell and Daniels solidified PAL it also developed it. What that effectively comes down to is ensuring more people are convicted by making life easier for the prosecution.
At the start of 1984 the law in complicity cases, as noted above, was fairly settled. In response to some of the manifest unfairness of the doctrine their Lordships created the ‘fundamental difference’ rule. It is not intended to be a source of legal advice and must not be relied upon as such. 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. 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. The prosecution case that was put to the jury was that the men were a party to an assault with intent to rob. Paradoxically, civil law systems are now much closer to pre-Jogee jurisprudence so there is good reason to conduct comparative analysis at this point. See also Ormerod, D & K Laird (2016) ‘Jogee: Not the end of a legal saga but the start of one?’, Crim LR, Vol 8, 539-552, at 543. It would simply have been enough to reason that the evidence in the case was so strong that there was intention to use violence in the case of resistance.22 The facts could easily be read as evidence of common purpose liability.
This argument was cited in the Johnson case, where the Court of Appeal stated that ‘The need to establish substantial injustice results from the wider public interest in legal certainty and the finality of decisions made in accordance with the then clearly established law.’ [Para 18] The Court in Jogeere-asserted the ‘high threshold’ test. At paragraph 79 the Court sets out its succinct conclusion on the, The judgment gives five reasons why it is right to reverse the decision in. The doctrine significantly widened the net of criminal liability attracting academic criticism and inflaming a public debate as to its fairness. During oral argument, counsel for the DPP of Jamaica conceded that the trial judge’s direction on joint enterprise was not a good example of a proper Chan Wing-Siu direction in any event. Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email. The use of the date on which the application for leave was lodged as the sole criteria for triggering the far stricter ‘substantial injustice’ test can lead to arbitrary results. This appears to be the best (or at least simplest) use of the term ‘joint enterprise’ in the sense that both offenders have decided to engage in a criminal ‘enterprise’ together. In significantly narrowing this major route to murder liability, however, the Supreme Court’s judgment and its aftermath must be studied closely.
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