Is foresight of the possibility of the commission of an offence by a co-offender sufficient to make a person guilty on the basis of joint enterprise?

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Is foresight of the possibility of the commission of an offence by a co-offender sufficient to make a person guilty on the basis of joint enterprise?

No, said the Supreme Court and the Judicial Committee of the Privy Council in R v Jogee; Ruddock v The Queen (CLW/16/07/7).

The first defendant, Ameen Jogee, and his co-accused, Mohammed Hirsi, spent the evening of June 9, 2011, together taking drink and drugs. They ended up outside the home of Naomi Reid in Leicester. She was there with her partner, Paul Fyfe. Hirsi entered the house and had an argument with Fyfe, during which he picked up a knife from the kitchen. Jogee had a bottle and was using it to hit a car outside the house. Both ended up in the doorway, and after various threats and an altercation Hirsi stabbed Fyfe, who later died of his injuries.

The second defendant, Shirley Ruddock, together with his co-accused, a Mr Hudson, robbed a taxi driver, Peter Robinson, of his car in the fishing village of White House in Jamaica on the night of June 30, 2007. Robinson was found dead and Ruddock, who was stopped with Hudson in the stolen car, admitted taking part in the robbery but said that Hudson had been the one who had killed Robinson. Both Jogee and Ruddock were convicted of murder, the juries being directed that it was sufficient for them to have foreseen it as a possibility that their co-accused would commit murder during the course of their joint activity. Their appeals reached the Supreme Court (for Jogee) and the Judicial Committee of the Privy Council (for Ruddock).

The court and committee examined the principle that, if two people set out to commit an offence (crime A), and, in the course of it, one of them commits another offence (crime B), the second person is guilty as an accessory to crime B if he foresaw its commission by the principal as a possibility but neither intended it, nor agreed to it, expressly or tacitly, even on a conditional basis, as laid down by the Privy Council in 1984 in Chan Wing-Siu v The Queen and then developed by the House of Lords in 1997 in R v Powell and another; R v English. They held that it could not be supported. Those courts had taken a wrong turn, based on an incomplete, and in some respects erroneous, reading of the previous case law.

In fact there is no reason why ordinary principles of secondary liability should not be of general application (the mental element required being that the accessory intended to encourage or assist the principal to commit the crime, acting with whatever mental element the offence requires of the principal). The correct approach is to treat foresight as evidence (albeit sometimes strong evidence) of intent to assist or encourage, but not as an inevitable yardstick of common purpose.

Where the prosecution cannot prove whether a defendant was a principal or accessory, it will be sufficient to prove that he participated in the crime in one way or another.

When the question is whether D2, who joined with others in a venture to commit crime A, shared a common purpose or common intent (the two are the same) that included, if things came to it, the