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R v. Jogee - (18 Feb 2016)

‘Joint enterprise’ Chan Wing-Siu principle takes a turn


The British Supreme Court heard appeals against the application of the Chan Wing-Siu principle in establishing the guilt and conviction of the Appellants. The Privy Council in Chan Wing-Siu v The Queen had held that if two people set out to commit one offence, and in the course of that joint enterprise one of them committed another offence, the second person was guilty as accessory to the other crime if he had foreseen the possibility that the first person might act as he did. Thus, the accomplice’s foresight of that possibility and continued involvement in the enterprise to commit the initial crime would be sufficient in law to bring the second crime within the scope of the conduct for which he is criminally liable, whether or not he intended it.

Without passing final opinion on merits of either of the appeals, the Supreme Court found the Chan Wing-Siu “based on an incomplete, and in some respects erroneous, reading of the previous case law”. It had proved a “continuing source of difficulty for trial judges” with a propensity to culminate in appeal. Strongest objections, however, were reserved in the use of ‘foresight for what might happen’ to find requisite intention. The court found such an application to be a “serious and anomalous departure” from basic criminal law, which over-extended the reach of murder by lowering its mens rea element further still. The Court corrected the approach in Chan Wing-Siu holding that rather than as evidence of intent to assist, the correct approach to treat it as evidence of intent.

Both appeals were borne from crimes which themselves would have not resulted in the death of the victim, yet it was foreseeable in the circumstances surrounding the events that serious bodily harm or death could have resulted from partaking in the same.

Having been applied over many years, convictions under the Chan Wing-Siu principle are likely to burden courts yet again. The Supreme Court mindful of the barrage of cases that may be reopened remitted instructions to courts, when directing juries, to remind them of the difference between intention and desire, not to mention the fundamental question of whether the accused was participatory in the Chan Wing-Siu-type crime or not.

Relevant : Privy Council in Chan Wing-Siu v The Queen MANU/UKPC/0006/1984 Section 44 Serious Crime Act 2007


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