Complicity Flashcards
*** Jogee [2016] UKSC 8
Facts + outcomes
In each of the 2 cases, D charged with murder, together with a co-defendant, the victim having been killed by the use of a knife by the co-defendant. In each case, the prosecution alleged that D had participated in a joint enterprise with his co-defendant to commit the act which resulted in V’s death
Facts of first case- Jogee- man is murdered by stabbing – J and H took drink and drugs- they become increasingly intoxicated and their behaviour becomes increasingly aggressive – H returns to the house alone and was there when V arrived – J returns and H and J leave – R texts J to tell them not to return- back within 2 mins – H enters shouting – V comes down and angry exchange – V goes back up – H gets a knife from the kitchen – V comes down and tries to get H and J to leave – V was in hall, H was at the front door with a knife – J was outside striking car with a bottle and encouraging H to do smth to V – J at some stage came to the doorway- bottle raised- leaned forward past H towards the deceased, saying that he wanted to smash it over the deceased’s head. V tells them to go but they refuse – R threatens to call police – H points knife at her and grabbed her throat- R backs away and goes to kitchen – H makes stabbing motion towards V and J+H run off – V was stabbed by H and dies of his wounds
Facts of 2nd case:
V was a taxi driver – found hands and feet tied with cloth and throat cut – prosecution’s case was that murder occurred during the robbing of V’s Toyota and station wagon – V’s son sees the car and reports it to police – They arrest H (driver seat), woman in passengers and R in the back – R states he did not cut the throat that was H but he did tie arms and legs together
1st case-Regina V Jogee - judge directs jury that D is guilty of murder if he participated in the attack on the victim and realised that his co-defendant might stab V with intent to cause really serious harm
2nd case- Ruddock v. the Queen- the Judge directs the jury that the prosecution had to prove that the defendant and his co-defendant had shared a common intention – and that this included a situation where D knew and there was a real possibility that his co-D might ‘have a particular intention and with that knowledge, nevertheless, went on take part’ in the offence.
Both convicted of murder - both appeal - both appeals allowed - murder convictions to be substituted for manslaughter or to be a retrial
*** Jogee [2016] UKSC 8
ratio/ new law set
Removed Doctrine of Joint enterprise liability(also known as Parasitic accessorial liability- PAL) from English law
Sets that mens rea requirements for accessorial liability are:
1) D2 was participant - he encouraged or assisted the commission of the crime
2) D2 must intend to assist or encourage D1 to commit the crime with whatever the requisite mental state for D1 is for the crime
ie if crime is of specific intent then D2 must intend to A or E D1 to act with such intent
Jury may find ‘conditional intent’-
D1 and D2 have the agreed common purpose of committing A and if D2 must have foreseen that during the commission of A, D1 might commit B, it may in appropriate cases be justified in saying that D2 had sufficient conditional intent that B would be committed if the occasion arose
Parasitic Accessorial liability
OR
Doctrine of joint enterprise
originated in case of Chang Wing-Siu [1985] AC 168
Sets out that in cases of joint enterprise
- where shared criminal purpose between D1 and D2 to commit crime A
- if D1 in commission of A commits crime B
- if D2 had foresight that in commission of A, D1 may commit B
- D2 is liable as an accessory to crime B
essentially equated foresight to the intention to assist
*** Jogee [2016] UKSC 8
Arguments and reasoning of HL
HL’s reasons for rejecting PAL - and reversing the principle - judgement by Lord Hughes and Lord Toulson
1) They had the benefit of a much fuller analysis than on previous considerations of this topic
2) Cannot be said that the law is well-established + working satisfactorily- remains highly controversial + continuing source of difficulty to trial judges – also led to large NO. of appeals
3) Secondary liability is an important part of common law, and if a wrong turn is taken, it should be corrected
4) In common law – foresight of what might ordinarily happen = no more than evidence from which a jury can infer the presence of a particular intention- it may be strong evidence – but its adoption as a test for the mental element for murder in the case of a secondary party is a serious and anomalous departure from the basic rule – results in an over-extension of the law of murder and a reduction of the law of manslaughter
5) The rule brings a striking anomaly of requiring a lower mental threshold for guilt in the case of the accessory than in the case of the principal
Key Point is about foresight equaling intention to assist under this rule
- in all other areas of crim law foresight is evidence from which jury may find intent but do not have too
- HL say this is correct approach for complicity too
- this use of foresight is used in inferring conditional intent - see ratio card
Argument that case hasn’t made much of a diff - still available to infer intent from foresight - CA cases of Anwar [2016] and Johnson (lewis)[2016] suggest that it hasn’t made much of a diff - support the argument
Ordinary Principles of Secondary Liability
Current Law
Actus Reus:
- D2 must assist or encourage the commission of the offence by D1
Mens rea:
- D2 must intend to assist or encourage the commission of the crime, with knowledge of any existing facts necessary to give D1’s conduct its criminal character
- conditional intent will suffice as the requisite intent here
s44 Magistrates’ Courts Act 1980
In summary states that
any person aids, abets, counsels or procures the commission by another person of a summary offence shall be guilty of the like offence
- Clarkson [1971] 1 WLR 1402
Ds enter a room where a woman was being raped - remained while offence continued - no evidence of actual verbal encouragement or physical participation
convicted of aiding and abetting rape - conviction quashed on appeal
Megaw LJ -mere presence at the scene not enough
- prosecution must establish that Ds not only intended the offence but also actually encouraged the offence
- Alford (Transport) [1997] 2 Cr App R 326
Ds were a transport company operating a fleet of lorries, managing director of that company and transport manager- police go to the company’s premises and seized a large number of company records -they showed widespread discrepancies – drivers concerned pleaded guilty to specimen offences of making a false entry on the tachograph record - Ds convicted of aiding and abetting these offences
On appeal convictions quashed and appeals allowed as insufficient evidence that D’s had knowledge of the drivers actions
Kennedy LJ
- where D has knowledge of principal offence + the ability to control the action of offender - but deliberately refrained from doing so - D is guilty of aiding and abetting
So - an omission can amount to aiding and abetting where D has control over Principal + knowledge of the offence
- Maxwell [1978] 1 WLR 1350
D drove deliberately to an inn acting as a guide to a following car containing 3 or 4 men who were strangers to the area. He reached the inn and drove off – one of the men in the following car places a bomb with a burning fuse in the hallway of the inn
convicted of unlawfully and maliciously doing an act with intent to cause an explosion likely to endanger life and possession of the bomb- appeals against conviction dismissed
Held that it is sufficient that an accessory has knowledge of the range/type of offence(s) that may be committed by P, but not knowledge of the specific/exact offence(s)
- Bryce (2004) 2 Cr App R 35
D gives X a lift to caravan home where X had planned to shoot and kill V - X kills V -D claims he knew nothing of a gun or plan to kill but merely gave X a lift- he had hindered the plan and distanced himself from it by introducing12 hour delay - may have prevented the murder– at the time of the assistance, X – on his own evidence – had harboured reservations – although not expressed to anyone – about the killing
Convicted of murder
Potter LJ - it is not necessary for prosecution to prove that at time of assistance X had formed the necessary intent for murder
- Anwar [2016] EWCA Crim 551
V gets into a silver car containing 3 Ds -enters to buy cannabis- front passenger points a shotgun at his face- driver brandishes a knife- as V tries to escape – 2 men exit a van close by and attempt to take his car – one of the men from the van says ‘shoot him, shoot him’- man with shotgun fires 2 shots but V escapes
Trial judge ruled no case to answer on charges- Crown appeal - appeal allowed all 6 Ds convicted of possession of firearm and attempted murder
can be safely inferred that all the Ds had conditional intent that the shotgun may be used to kill/attempt to kill
Jogee does not affect the evidence required to prove the mens rea - just the mens rea requirements themselves -
- Thornton v Mitchell [1940] 1 All ER 339
Bus driver was charged under the Road Traffic Act 1930 s12(1) with driving a bus without due care and attention, and driving without reasonable consideration for other persons on the road- but charges dismissed- the conductor of the same bus was convicted with aiding and abetting the offences committed by the driver - convciton quashed on appeal - could not be guilty as principal -due to wording of offence only driver could be P - a he could not be aid and abett P in which P was not doing-
bus was being reversed and that the driver could not see behind him – it was the conductor’s duty to signal that the road behind him was clear – conductor gave the signal when there were in fact 2 pedestrians behind – both get knocked down – one fatally injured
Where the principal is acquitted of an offence as he has not committed the actus reus, the accessory cannot be guilty of aiding and abetting that offence
driver did not commit actus reus of careless driving as he relied on conductors signals
- Millward [1994] Crim LR 527
D1 directed employee D2 to drive a tractor on a main road to tow a tailer - Tractor’s hitch poorly maintained - trailer detaches - kills a passenger in a car
D2 acquitted - D1 convicted as an accessory to causing death by reckless driving
an accessory can be guilty of an offence by procuring the actus reus of that offence- even if principal lacks the mens rea and so is acquitted of that offence
- Rook [1993] 1 W.L.R. 1005
D + 2 other men are recruited by husband of murder victim- they plan to kill his wife - on day of killing D cannot be found - they kill the wife - D had not told any of them he would be absent
D convicted of murder and appeals against conviction dismissed
For the accused to successfully legally withdraw from a criminal enterprise he has participated in, the minimum requirement is the unequivocal communication of his withdrawal to the other perpetrators
and
not necessary to show that a secondary party to a conspiracy to murder intended the victim to be killed, provided it is proved that he contemplated or foresaw the event as a real or substantial risk.
- O’Flaherty [2004] Crim LR 751
Course of spontaneous violence occurred between 2 groups of individuals –at place A there was an exchange of blows between the deceased and 3 Ds F, R, and T– deceased then pursued by other individuals – F followed in pursuit to place B – deceased on the ground – surrounded and being assailed by a group of men – F moves closer still holding cricket bat – but does not use it again – and was first to move away from the scene – R and T did not enter place B – in the course of those events deceased sustained head injury and stab wounds – medical evidence at the trial showed that ‘the head injury had not itself been fatal, but was inconclusive as to whether the head injury could have been a contributory cause of death’
T, F and R all convicted of murder – T and R’s appeals against conviction allowed as they did not go to the second place- Appeal dismissed for F – his presence during second attack was sufficient to show he aided and abetted murder
communication of withdrawal from preplanned criminal enterprises is required but communication of withdrawal from spontaneous violence is not necessary
Whether a D has successfully withdrawn from a joint criminal enterprise is a matter for the jury to decide
Not necessary for reasonable steps to be taken to prevent the crime for there to be an effective withdrawal
- Gnango [2011] UKSC 59
B shoots at D– D returned fire – a passer-by was shot in the head from a bullet from B’s gun and was killed – D was convicted of murder on the basis that he had been engaged in a joint enterprise with B
The doctrine of transferred malice applies to secondary parties as it does to principal offenders
A victim can be an accessory to a crime to which he is the intended victim - Tyrell principle does not apply here
