In a landmark decision handed down on 18 February 2016, the Supreme Court and Privy Council unanimously set aside the convictions for murder in two conjoined appeals, where the direction to the trial jury in each case derived from Chan Wing-Siu v The Queen [1985] 1 AC 168 and Regina v Powell and English [1999] 1 AC 1, and in doing so have re-set the law on criminal liability for secondary parties to the pre-Chan Wing-Sui position.

Joint Enterprise Liability

The doctrine of joint enterprise is a well-established form of secondary liability under English criminal law, used to prosecute secondary parties who assist or encourage another to commit a criminal act. Professor Sir John Smith coined the phrase “parasitic accessory liability”[1] to describe a narrow subsection of joint enterprise liability first introduced into UK common law by the Privy Council in Chan Wing-Siu and further developed by the House of Lords in Powell and English. The effect of these decisions was to widen the scope of secondary liability so that a secondary party would be liable for the unauthorised yet foreseen actions of a principal who commits an additional offence in the course of that joint enterprise. In the Chan Wing-Siu judgment, Sir Robin Cooke stated that secondary liability, “…turns on contemplation or, putting the same idea in other words, authorisation, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight“.[2] Parasitic accessory liability has been used to establish mens rea of secondary parties in cases where the defendants set out together to commit a particular offence, such as assault or burglary, and in the course of committing this offence the principal offender commits a second but more serious offence, such as murder.

Jogee & Ruddock

The appellants in Jogee and Ruddock were each convicted of murder after the respective trial judges directed their juries, in line with the principles from Chan Wing-Siu, that foresight was sufficient to establish secondary liability. Jogee was convicted of a former police officer’s murder which was committed by the principal offender whilst Jogee was shouting words of encouragement to the principal from outside the home in which the murder took place. Ruddock was found guilty of murder in Jamaica following his participation in a robbery that had gone wrong, his co-defendant having already admitted to cutting the victim’s throat.

The appellants argued that the court took a wrong turn in Chan Wing-Siu in holding that foresight was sufficient to establish mens rea for secondary defendants in murder cases, and that subsequent decisions erred in following the parasitic accessory liability principle. The respondent in each case disputed the appellants’ propositions and argued that, in any case, it should be a matter for the legislature to decide whether to make any changes to established legal principles.

Decision of the Supreme Court

The Supreme Court and the Privy Council, unusually co-sitting, unanimously allowed the appeals, holding that the introduction of the parasitic accessory liability principle in Chan-Wing Siu, “…was based on an incomplete, and in some respects erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments”,[3] which resulted in incorrectly equating foresight with intent to assist. The Supreme Court instead considered that the correct approach is to treat foresight as evidence of intent.[4] While the Supreme Court recognised the significance of reversing the 30-year-old Chan Wing-Siu principle, it considered that the test of foresight for secondary liability as derived from Chan Wing-Siu, extending liability for murder to a secondary party on the basis of a lesser degree of culpability, was an “anomalous departure from the basic rule” and needed to be corrected.[5]

The result of the Supreme Court’s decision is to return the law on joint enterprise liability to a pre-Chan Wing-Sui state, whereby the jury should be directed to find a defendant guilty if the prosecution proves that the secondary party encouraged or assisted the principal to commit the crime and did so with the requisite mental element of the offence that the principal committed. Additionally, in accordance with pre-Chan Wing-Sui principles, if the prosecution proves that a secondary person was involved in an assault in which the principal ultimately murders the victim, acted with intent to cause grievous bodily harm yet lacked the necessary mental intent for murder, the judge should direct the jury on the possibility of a manslaughter conviction.[6]

Responding to the Crown’s submissions, the Supreme Court considered that because the doctrine of secondary liability is a common law doctrine, the court was the proper forum to correct a wrong turn in the common law.[7] Over the past few years there has been growing support from members of parliament seeking a change to joint enterprise law and it seems likely that if the change had not come from the courts, it would have eventually been made in legislation. In response to public interest campaigns against parasitic accessory liability, the House of Commons Justice Committee undertook an inquiry into the operation of the common law doctrine of joint enterprise and published an initial report on 11 January 2012 and a follow-up report on 17 December 2014.[8] In the 2014 report, the Committee expressed serious doubts over the appropriateness of the Chan Wing-Sui principle and recommended an urgent review into the use of joint enterprise law in murder cases by the Law Commission, proposing that secondary participants who do not encourage or assist in the perpetration of murder should instead be charged with manslaughter.[9]

Future Appeals

This is the first time that the UK’s highest court has been directly asked to review the doctrine of parasitic accessory liability, which lower courts have been applying for 30 years. While the decision, which will apply in England, Wales, Northern Ireland and commonwealth countries and territories subject to the jurisdiction of the Privy Council, has the potential for wide application, the Supreme Court was anxious not to open the floodgates on appeals, carefully stating that convictions made applying the law as it stood at the time can only be set aside by seeking exceptional leave to appeal.  They made it clear that application of the previous law, in equating foresight with intent rather than as evidence of intent, may not have been important on the facts to the outcome of any prior trial where the doctrine was applied.[10]

[1] Criminal liability of accessories: law and law reform Law Quarterly Review [1997] 113 LQR 453.

[2] Chan Wing-Siu v The Queen [1985] 1 AC 168, p 175.

[3] R v Jogee [2016] UKSC 8 and Ruddock v The Queen [2016] UKPC 7, 79.

[4] ibid, 87.

[5] ibid 83, 84.

[6] R v Reid (1976) 62 Cr App R 109.

[7] R v Jogee [2016] UKSC 8 and Ruddock v The Queen [2016] UKPC 7, 85.

[8] Link to the House of Commons Justice Committee Report on Joint Enterprise, Eleventh Report of Session 2010-12,

Link to the House of Commons Justice Committee Report on Joint Enterprise, Fourth Report of Session 2014-15,

[9] House of Commons Justice Committee Report on Joint Enterprise, Fourth Report of Session 2014-15, p 20.

[10] R v Jogee [2016] UKSC 8 and Ruddock v The Queen [2016] UKPC 7, 100.