Joint enterprise, murder and substantial injustice: the first successful appeal post-Jogee (case comment)

This paper analyses the Court of Appeal decision in R v Crilly [2018] EWCA Crim 168. This was the first out-of-time appeal after R v Jogee in which the applicant succeeded in demonstrating ‘substantial injustice’ and having his murder conviction vacated. Although the judgment demonstrates that the Court remains faithful to its approach in R v Johnson and the high threshold test of ‘substantial injustice', Crilly suggests that if it can be shown that an applicant's case was in essence about foresight, the odd reference to intention might not prove fatal to demonstrating that had the jury been given Jogee-compliant directions on accessorial liability, this would have made a difference to their verdict

Oblique intent, foresight and authorisation

In R v Jogee, the Supreme Court of the United Kingdom (UKSC) abolished a contentious doctrine of criminal law which allowed accomplices to a crime A to be convicted of another’s crime B on the basis that they foresaw commission of the latter in the course of the former. The Court held that nothing short of an intention to assist or encourage crime B would suffice to fix the accomplice with criminal liability. At common law intention has traditionally been understood to entail acts and consequences that were either achieved with purpose (direct intent) or foreseen as virtually certain to follow one’s chosen course of conduct (oblique intent). This paper argues that Jogee constitutes a first step away from a conception that measures ‘guilty minds’ in degrees of foresight: by associating the accessory’s intent to assist or encourage the perpetrator’s crime with ‘authorisation’, Jogee seems to support the view that intention in the legal sense depends ultimately on whether the accused had endorsed the consequences of his and the perpetrator’s actions

Accessory liability: persisting in error (case comment)

The paper examines the recent decision in Miller v The Queen by the High Court of Australia. The Court declined to follow the Privy Council and UK Supreme Court (UKSC) in abolishing the doctrine of extended joint criminal enterprise, but as the paper argues the reasons given by the majority do little more than reassert well-rehearsed arguments in favour of ‘joint enterprise’ doctrine. The decision appears policy-based rather than principled. The paper suggests that the dissenting opinion makes for a much more convincing argument

Hong Kong Court of Final Appeal: divided by a common purpose (case comment)

The paper analyses the landmark decision in Chan Kam Shing by which the Hong Kong Court of Final Appeal refused to follow the UK Supreme Court’s lead in abolishing the mode of criminal liability known as ‘parasitic accessory liability’. It critically examines the historical, doctrinal and policy reasons put forward by the HKCFA in support of its decision to reject Jogee. The paper argues that the HKCFA and UKSC judgments are at cross-purposes, being based on fundamentally different analytical frameworks and taxonomies of complicity

Joint criminal enterprise in English and German law

This thesis explores the English doctrine of joint criminal enterprise by way of a comparative study. Joint enterprise allows for the conviction of an accomplice (S) of an offence (crime B) committed by his associate-in-crime (P) on the basis of S's foresight of its commission by P as a possible incident to their joint criminal venture (crime A). While it is generally accepted that this common law principle needs reforming, successive governments have declined to take on the task. Against this backdrop, this thesis explores whether the contentious features of joint enterprise liability might be reformed by way of common law development. To this end, the thesis examines the doctrine’s constituent elements, its function, underlying rationale and place within the structure of primary and secondary liability. Particular emphasis is put on the specific problems associated with the application of joint enterprise liability in the context of murder. Looking at the functional equivalents of joint enterprise in German law, the thesis challenges the orthodox view that joint enterprise is a head of liability available to the prosecution alongside co-perpetration and aiding and abetting. Indeed, it argues that an inculpatory function of the principle is difficult to justify and suggests that, both historically and as a matter of principle, it is better seen as an exculpatory device aimed at delineating the scope of co-perpetration and aiding and abetting. The thesis concludes that the current law does not serve this function very well, as its mens rea threshold (some form of recklessness, when proof of intention is needed to convict the principal offender) sets the hurdle for conviction of secondary parties indefensibly low. Informed by ideas taken from German law – especially an extended concept of intention known as dolus eventualis – the thesis's principal contention is that English law would do better defining joint enterprise liability in terms of foresight plus endorsement. Indeed, the thesis aims to show that English law was very close to such a conception, and that the common law took a wrong turn in Powell. It concludes that it is still open to the Supreme Court to adopt an endorsement-focussed approach to joint enterprise liability, thereby alleviating concerns that the law in this area is too harsh and over-inclusive, and bringing it closer to the threshold of liability for principal offenders which requires proof of intention. Such an approach would also make the law of complicity more principled and coherent

Intentionally overcharged?: R v Thacker & Ors [2021] EWCA Crim 97

This is a case note on R v Thacker [2021] EWCA Crim 97 considering whether the trial judge had erred in convicting 15 activists who had breached an airport perimeter fence of intentionally disrupting services, contrary to the Aviation and Maritime Security Act 1990 s.1(2)(b). Issues discussed concern statutory interpretation, jury directions and the meaning of intent

Rape, consent and a lie about fertility: R v Lawrance [2020] EWCA Crim 971

This is a case comment on R v Lawrance [2020] EWCA Crim 971 which held that a lie about fertility was not sufficiently closely connected to the performance of sexual intercourse so as to be able to negate consent under s. 74 of the Sexual Offences Act 2003. The case note argues that Lawrance demonstrates that the circumstances in which consent is vitiated can still turn on subtleties that are difficult to justify, such as whether a chosen method of contraception would prevent ejaculate from entering the body or just sperm

Withdrawal from attempts?

My paper argues that the criminal defence of withdrawal could, and should, be more readily available as a defence than it currently is. Compare the following examples: (1) D is jealous of V, his ex-wife’s new partner. He decides to kill V by beating him to a pulp. He knows that V goes for a run in the evening, so one day D lies in wait for V with a baseball bat. As V jogs past him, D jumps out of the bushes and swings the baseball bat at him with force, but misses. D takes aim again, but seeing the fear in V’s eyes, he experiences a sudden change of heart. He drops the baseball bat and walks away. Under the law as it stands, D will be criminally liable for assault by causing V to fear immediate harm. It is very likely that, in light of D’s intention to kill V, D’s swing of the bat makes for an act sufficiently proximate to the killing of V as to amount to attempted murder. Yet at that point in time, D’s better self leads him to abandon his deadly project. Withdrawal is no defence to attempted crimes at common law. This is so even though D abandoned his crime voluntarily, before any physical harm occurred to V, and whilst it was still possible for the crime to come to fruition. (2) P tells S of his plans to cause V, his rival-in-love, grievous bodily harm by severely beating him. S considers this treatment too lenient and suggests that P kill V by shooting him in the head. He offers to get P a gun, which he does. The next day, S has a change of heart. Driving towards P’s house, S calls P on his mobile, pleading with him not to go ahead with the shooting. By the time he arrives, and despite S’s best efforts to persuade P to abandon his murderous plan, P has already gone ahead and shot V. In this case, S might well have done enough to withdraw from the criminal venture and thereby to extricate himself from liability. This is so even though the full crime has been committed; V was killed, and, what is more, because of S’s prior involvement: without S’s advice and assistance, P would not have thought of killing V, let alone have had the means to do so. The difference in outcome for D and S arises because English law recognises withdrawal as a ‘defence’ only in the context of secondary participation (example 2); it does not avail principals who abandon their criminal purpose after having crossed the crucial threshold from mere preparatory acts to an attempt but before their crime has come to fruition (example 1). Allowing withdrawal to let the defendant off the hook in example 2 but not in example 1 requires explanation. My paper argues that a case can be made to treat both defendants alike and that extending the defence to principals is within the interpretative reach of English law and, indeed, warranted