Academic journal article Nottingham Law Journal

Killing the Parasite

Academic journal article Nottingham Law Journal

Killing the Parasite

Article excerpt

R v Jogee [2016] UKSC 8; Ruddock v The Queen [2016] UKPC 7 18 February 2016 (Lord Neuberger (President), Lady Hale (Deputy President), Lord Hughes, Lord Toulson, Lord Thomas)


2016 has been a good year for the criminal law in the Supreme Court. In Taylor (1) and now Jogee; Ruddock the Supreme Court has made genuine and relevant fault on the part of the defendant central to the question of his/her guilt.


On a June evening in 2011, Jogee and a man called Hirsi had been back and forth to the house of Fyfe and his girlfriend, Reid. Hirsi returned alone, but was no longer welcome at the house and Reid contacted Jogee who came and took him away. Reid sent Jogee a text telling him not to bring Hirsi to the house again, but within a couple of minutes Hirsi and Jogee returned. Hirsi entered the house while Jogee remained outside shouting encouragement to Hirsi (there was no evidence as to what was being encouraged), striking a car and waving a bottle. Inside Hirsi, not previously armed, took a knife from the kitchen, pointed it at Reid and then stabbed Fyfe who died as a result. Hirsi ran outside and he and Jogee left. Hirsi took money from Jogee who, according to text traffic from later on that evening, did not know of the stabbing. Hirsi and Jogee were both convicted of Fyfe's murder. The trial judge had directed the jury in accordance with the principles then thought to be applicable when D2 (Jogee) is accused of a crime committed by D1 (Hirsi) which is itself committed during the course of another crime in which D1 and D2 were both involved.

In Ruddock's case (on appeal from Jamaica) he and a man called Hudson set out to rob a taxi driver, Robinson. Robinson's throat was cut. Ruddock maintained that Hudson had done this while Ruddock was not present. Hudson pleaded guilty to murder and Ruddock was convicted after trial. The jury in Ruddock's case were directed in line with the same principles as the jury in Jogee's case.

In these conjoined appeals the Supreme Court (also sitting as the Privy Council in relation to Ruddock) tackled an aspect of secondary liability that has been commonly, and imprecisely, termed "joint enterprise". (2) "Joint enterprise" has passed into common usage and as such is a term much used but little understood. At its broadest it denotes the principle by which two or more defendants are all guilty of an offence despite not all taking part in the offence in the same way. Using just two defendants (D1 and D2) the ways in which this can happen are:

(1) D1 and D2 each, with the requisite fault element of the offence, perform at least part of the conduct aspect of the offence, making them joint principals.

(2) D2 assists, encourages or procures D1 to commit offence X/a particular type of offence, making D2 secondarily liable for the offence committed by D1--this is basic accessorial liability (BAL).

(3) D1 and D2 set off intending to commit an offence together making them sometimes joint principals and sometimes principal and secondary parties respectively-- this is common purpose liability (CPL)

(4) D1 and D2 are jointly involved in, or at least set off to commit, offence A, during the course of which D1 commits offence B. D2 is guilty of offence B if s/he foresaw the possibility that D1 might (3) commit crime B and continued to participate in crime A--this is "parasitic accessorial liability" (4) (PAL),

PAL was the variant of joint enterprise involved in both Jogee and Ruddock and its scope was broad indeed. Nothing beyond D2's involvement in crime A was required for D2 to be guilty of crime B, save that D2 contemplated the possibility that D1 might do it, or something like it. (5) D2 could go from being guilty of affray to being guilty of murder simply through foresight that D1 might do something to cause someone's death with the intention to at least cause grievous bodily harm. …

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