I would like to share with you a decision from the Supreme Court of
the United Kingdom in February this year.
The decision was on two appeals (R
v Jogee [2016 UKSC 8 and Ruddock v The Queen [2016] UKPC7) from two
appellants who were found guilty of murder when they each acted in a joint
enterprise. This meant that the
appellant did not actually do the murder, but was said to have encouraged or
assisted the principal to do so. The
issue before the Supreme Court was on the proof of intent for the secondary
party to a crime. The law of secondary
liability for crime has always been confusing.
To make sure that readers follow, I try to explain from scratch.
In criminal law, to find a defendant guilty of murder, two
components need to be proved beyond reasonable doubt by the prosecution. First, there has been an act of killing. The defendant has killed the subject, or has
acted in a way causing (not too indirectly) his death. This component is called the actus reus. Second is the presence of
intent. The defendant has the intention
to kill, or should have foreseen the causing of death from his action. This component is called the mens rea.
In a joint enterprise, the law takes it that persons who are indeed
together responsible for a crime are all guilty of it, whether as principals or
secondary parties. This is because it
may not be possible to determine exactly whose hand performed the vital
act. For example, in an armed attack by
two attackers, it is not possible to tell which one of them indeed killed the
victim. Taking the rule for actus reus in the strictest sense might
lead to the injustice of finding both of them not guilty. Thus, it suffices to prove that each
defendant either did it himself or intentionally assisted or encouraged
it. In these cases, mens rea is relied on more heavily.
However, reality is always not as simple. Under the basic principle of
joint-enterprise, there exist cases where the intent of the secondary party is
difficult to determine. In Jogee, a drunk confrontation turned into
a fight. The victim was killed by the
principal with a knife picked up in the victim’s kitchen while Jogee was
yelling outside the house. In Ruddock, the principal cut the throat of
a taxi driver while Ruddock was present and was a party to the robbery. Both Jogee and Ruddock were found guilty of
murder. The decisions were made
following a precedent case: Chan
Wing-Siu v R [1985] AC 168. Chan Wing-Siu was a Hong Kong case in
1985. The appellants were members of a
gang who had gone to the victim's house to commit a robbery, arming themselves
with knives. During the robbery the
victim was stabbed to death by a member of the gang and the defendants were
convicted as accomplices to the murder.
The Privy Council dismissed their appeals. It was held that for an accomplice to be
guilty of murder it was sufficient for the prosecution to establish that he
foresaw death or grievous bodily harm as a possible incident of the common
design being carried out.
31 years later, the Supreme Court ruled that Chan Wing-Siu was decided wrongly and allowed the appeals of Jogee
and Ruddock. The error in Chan Wing-Siu was to treat foresight of
the murder as automatic authorization of it.
In other words there was no need to consider whether the secondary party
intended to kill the victim or not.
There was no actus reaus, nor
actual mens rea. Chan
Wing-Siu also created a situation where the secondary party could be found
guilty more easily than the principal.
For the principal, the prosecution needed to prove his intent to
kill. For the secondary party, the
prosecution instead needed only to prove that he could foresee a real chance of
the principal killing the victim, though he might have no intention at all to
see the victim dead. The unanimous
conclusion of the Supreme Court pointed out that “foresight is simply evidence (albeit sometimes strong evidence) of
intent to assist or encourage, which is the proper mental element for
establishing secondary liability”.
The difference might be subtle but real.
In many cases, the continued participation in the crime and the
foresight of a more serious second crime were strong pointers to intent. However, distinguishing foresight and intent
set the rule straight and in line with other areas of criminal law.
Note that even if the prosecution fails to prove intent, the
secondary party will not be set free. He
would be found guilty of a lesser charge such as manslaughter.
Readers may wonder, why do I write on this topic which is ambiguous
and unrelated to our practice? The
Supreme Court has specified that this rule is not confined to cases of
homicide, or indeed to cases of violence.
I read this judgment while I was watching TV news. Many people were charged with riot. I remembered writing in the Editorial of July
2013 about doctors taking part in Occupy Central: “More important, what is going to happen during the movement will also
be unpredictable. The doctor needs to
make sure he is not involved in anything drastic. Even so, while he is looking at charges like
‘unlawful assembly’, the prosecution might charge him with more serious charges
like ‘riot’”. Luckily, that did not
happen. Unfortunately, in the Mong Kok
Incident this year, many were arrested and charged with riot. I just hope that this Supreme Court decision
can help those who took part in a demonstration that turned into acts of
violence.
