Joint enterprise and secondary liability
A person who intentionally assists or encourages another to commit a crime can be convicted of that crime as an accessory. Since R v Jogee [2016] UKSC 8, foresight that the other person might commit the crime is evidence of intent, not a substitute for it.
The principle
Anyone who aids, abets, counsels or procures an indictable offence can be tried and punished as if they had committed it themselves (Accessories and Abettors Act 1861 s.8). The same applies to summary offences (Magistrates' Courts Act 1980 s.44). Secondary liability is often called joint enterprise.
The test after Jogee
In R v Jogee; Ruddock v The Queen [2016] UKSC 8, [2016] UKPC 7 the Supreme Court corrected a wrong turn in the law. The prosecution must prove that the accessory:
- assisted or encouraged the principal to commit the crime, by words or conduct (being present to lend support can count, but mere presence is not enough); and
- intended to assist or encourage the commission of the crime, with knowledge of any facts necessary to make it criminal.
Where the crime requires a particular intent (for example murder), the accessory must intend to assist or encourage the principal to act with that intent. Foresight that the principal might commit the further crime is evidence from which intent may be inferred, but it is not enough on its own. An accessory convicted of murder receives the same mandatory life sentence as the principal.
Manslaughter
Where a person joins in an unlawful attack without intending serious harm or death, but death results, they may still be guilty of manslaughter if all sober and reasonable people would have recognised a risk of some harm. There is no liability for an overwhelming supervening act by the principal that nobody in the accessory's position could have contemplated.
Withdrawal
A participant who withdraws before the crime is committed, by clear and timely communication or, in some cases, positive steps to prevent it, may avoid liability. Whether withdrawal was effective is a question of fact and degree for the jury, and spontaneous violence can make it hard to establish.
Related offences and old cases
- Encouraging or assisting crime is also an offence in itself under the Serious Crime Act 2007 ss.44 to 46, even if the crime is never committed.
- Jogee did not automatically reopen earlier convictions. An appeal out of time based on the change in the law needs permission and proof of a substantial injustice (R v Johnson [2016] EWCA Crim 1613).
In practice
Multi-defendant cases often rely on cell-site evidence, CCTV, messages and association. Each defendant's own knowledge and intent must be proved separately, and careful analysis of what each person actually did, and knew, is essential.
Authorities: Accessories and Abettors Act 1861 s.8; Magistrates' Courts Act 1980 s.44; R v Jogee; Ruddock v The Queen [2016] UKSC 8, [2016] UKPC 7; R v Johnson [2016] EWCA Crim 1613; Serious Crime Act 2007 ss.44 to 46; CPS legal guidance, Secondary Liability: charging decisions on principals and accessories