The Jogee case overruled the principle for accessorial liability as laid down in the Chan Wing-Siu case, concluding that “the introduction of the principle was based on an incomplete, and in some aspects erroneous reading of the previous case law, coupled with generalised and questionable policy arguments.” (Jogee, [79])
The court summed up the mistake made in the Chan Wing-Siu case at paragraph 87: “the error was to equate foresight with intent to assist, as a matter of law; the correct approach is to treat it as evidence of intent.” (Jogee, [87]) But what does this mean for the actus reus and mens rea of secondary liability?
Actus Reus
The defendant needs to encourage or assist the commission of the offence by the principal offender. (Jogee, [8]) It is irrelevant whether the defendant’s assistance or encouragement have any positive effect on the principal offender’s actions. (Jogee, [12])
Mens Rea
The new mens rea requirements are explained in a clear way in Ormerod and Laird’s case note (see end of this post for full citation). Here is a short rundown of the requirements Ormerod and Laird list:
the defendant intended to assist or encourage the principal;
the defendant intended that the principal would have the mens rea required for the offence […];
the defendant must have knowledge of any other “existing facts necessary” for the principal’s conduct/intended conduct to be criminal […];
Where the principal’s offence requires proof that he acted with intent (e.g. murder) the defendant must intend to assist/encourage the principal to act with that intent
(Ormerod & Laird, 540-541)
The Jogee case leaves us with a rather unclear situation on conditional intent. If you would like to know more about mens rea issues under Jogee in relation to conditional intent, you can watch my video on it here.
Cases
Chan Wing-Siu v The Queen [1985] A.C. 168
Jogee and Ruddock [2016] UKSC 8, [2017] A.C. 387
Academic Writing
D. Ormerod and K. Laird, “Jogee: Not the end of a legal saga but the start of one?” [2016] Crim. L.R. 539-552