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

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

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

Underwhelming supervening acts: R v Lanning and Camille [2021] EWCA Crim 450 (30/03/2021)

This is a case note on R v Lanning and Camille [2021] EWCA Crim 450. It considers the concept of ‘overwhelming supervening acts’ (OSA) and its relationship to the ‘fundamental difference rule’ (FDR)