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Insights
17/02/2016
This morning the Supreme Court handed down its judgment in the appeals of R v Jogee; Ruddock v The Queen [2016] 8 UKSC 8 and [2016] UKPC 7. The legal issues in these cases concerned the mental element of intent which must be proved when a defendant is accused of being a secondary party to a crime.
The question of law was whether the common law took a wrong turning in two cases, Chan Wing-Siu v The Queen [1985 1 AC 168 and Regina v Powell and English [1999] 1 AC 1. The court held, in a unanimous judgment, that it had: the error had been to equate foresight with intent to assist; the correct approach is to treat it as evidence of intent.
The court held that the mental element for secondary liability is an intention to assist or encourage the crime. Sometimes the encouragement or assistance is given to a specific crime, and sometimes to a range of crimes, one of which is committed; either will suffice. Sometimes the encouragement or assistance involves an agreement between the parties, but in other cases it takes the form of more or less spontaneous joining in a criminal enterprise; again, either will suffice. Intention to assist is not the same as desiring the crime to be committed. On the contrary, the intention to assist may sometimes be conditional, in the sense that the secondary party hopes that the further crime will not be necessary, but if he nevertheless gives his intentional assistance on the basis that it may be committed if the necessity for it arises, he will be guilty. In many cases, the intention to assist will be co-terminous with the intention (perhaps conditional) that crime B be committed, but there may be some where it exists without that latter intention. It will remain relevant to enquire in most cases whether the principal and secondary party shared a common criminal purpose, for often this will demonstrate the secondary party’s intention to assist. The error was to treat foresight of crime B as automatic authorisation of it, whereas the correct rule is that foresight is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage. It is a question for the jury in every case whether the intention to assist or encourage is shown.
The facts and full reasoning are, of course, to be found in the full decision.
Call: 1992 Silk: 2011
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