25 December 2019
Written by: Zoe McDonald, PNLD Legal Adviser
Not reviewed after the date of publication
In 2016, the cases of R v Jogee and R v Ruddock were heard together by the UK Supreme Court, which was asked to review the doctrine of 'parasitic accessory liability'. The expression 'parasitic accessory liability' was coined to describe a doctrine that had been laid down by the Privy Council in Chan Wing-Siu v R  AC 168 and later developed in case law. It provided that if two people set out to commit an offence and in the course of that joint enterprise, the first person committed another offence, then the second person would be guilty as an accessory to that other offence, if he had foreseen the possibility that the first person might act as he did.
In the landmark 2016 ruling, the Supreme Court held that this doctrine could no longer be supported and therefore reversed a principle that had been followed by the highest appellate courts in England and Wales for 30 years. After the ruling in Jogee 2016, a defendant charged as a secondary party to murder could only be convicted if s/he participated with the intention to encourage or assist the principle to commit the offence with the required intent to kill or cause GBH. In other words, the error (in Chan Wing-Siu) had been to equate foresight (of the primary offenders action/attack etc.) with intent to assist the primary offence, rather than treating the first as evidence of the second.
At that point in time, the Jogee case was simplistically summarised as ‘putting right’ what was considered to have been a ‘wrong turn’ taken by the law back in 1985 on the issue of joint enterprise. What followed however was predictably chaotic, as the criminal justice world began to ask what this meant for historic convictions prior to the change in interpretation. The media were quick to paint a picture of the courts becoming flooded with applications to appeal and victims’ families being terrified of the prison gates opening. On the flip side, there was also a huge sense of injustice by the convicted and their families, which led to hope that they would soon be reunited.
The Supreme Court was quick to clarify that all convictions, which had followed the parasitic accessory liability principle, were not to be rendered invalid. Where a conviction had been arrived at by faithfully applying the law as it stood at the time, it could be set aside only by seeking exceptional leave to appeal out of time from the Court of Appeal. Only the Court of Appeal has power to grant such leave, and may do so only if ‘substantial injustice’ can be demonstrated, and this was considered to be a high threshold. Leave would not be granted simply because the law applied at the time has since been declared to be mistaken.
In the same year, R v Johnson and others  EWCA Crim 1613 was one of the first murder appeals to consider the case’s impact. In conjoined appeals and applications for permission to appeal, the Court of Appeal set out the approach to granting ‘exceptional leave’ for the purposes of an appeal post Jogee. It stated that the court was interested in what difference the change in law would have made to the strength of the case advanced. In considering whether the high threshold has been met, the court stated in Paragraph 21 of the judgment:
‘If crime A is a crime of violence which the jury concluded must have involved the use of a weapon so that the inference of participation with an intention to cause really serious harm is strong, that is likely to be very difficult. At the other end of the spectrum, if crime A is a different crime, not involving intended violence or use of force, it may well be easier to demonstrate substantial injustice. The court will also have regard to other matters including whether the applicant was guilty of other, though less serious, criminal conduct. It is not, however, in our view, material to consider the length of time that has elapsed. If there was a substantial injustice, it is irrelevant whether that injustice occurred a short time or a long time ago. It is and remains an injustice.’
In Paragraph 191 of the judgment, the court said that the question the court needs to ask is:
‘Can it therefore be said that there is a sufficiently strong case that the defendant would not have been convicted of murder if the law had been explained to the jury as set out in Jogee?’
In the Johnson case, the court did not consider that there was ‘sufficiently strong a case’ and therefore did not consider that a ‘substantial injustice’ had been done. They refused leave for all of the applications as a result.
Consequently, from then on, very few cases were referred back to the Court of Appeal by the Criminal Cases Review Commission, and all other applications for leave to appeal were refused on the basis that they had not demonstrated substantial injustice in line with Johnson, above. Some considered this approach unfair; that it was more a more onerous set of criteria than was required for other appeals. However, in January 2018, there finally was a successful application to appeal which was able to show ‘substantial injustice’. In R v Crilly 2018  EWCA Crim 168, the appellant (C) sought leave to appeal, out of time, against his 2005 murder conviction. C’s application was granted and his appeal allowed. In applying the principles in Johnson, the court stated:
’37. … The modus operandi as claimed by C was that they burgled unoccupied houses and went unarmed, albeit as a group.
38. The most likely scenario as the case has been presented to us (and the fairest scenario for the purpose of this appeal) is that that this was planned as a burglary of an unoccupied dwelling house. It was not planned as a robbery and no violence was initially intended. It went wrong with fatal consequences because the householder … could not and did not hear the door bell. When [F] attacked [the householder], [C] continued to participate in the robbery despite having the foresight that [F] would cause [the householder] really serious bodily harm with the intention of doing so. The case was perfectly properly, as the law then stood, presented to the jury on that basis. [C] is in a very different position from his co-accused. He was not accused of intending or foreseeing any violence when they arrived at the flat, he was not accused of inflicting the violence and he was not accused of intending to cause grievous bodily harm. Furthermore, there was only a very short time between the discovery of [the householder] at home and the conversion of the burglary into the robbery with the infliction of the violence that killed him. The violence does not seem to have been a sustained and savage attack; it may have been solely a push and a punch.
39. On that basis, the facts of this case … do not fit easily into the examples given [in] Johnson … of the spectrum of offences. …
40. … The case against the applicant was to all intents and purposes a case about his foresight. Foresight may be evidence of intent but it does not equate to intent. The evidence against him was not so strong that we can safely and fairly infer the jury would have found the requisite intent to cause really serious bodily harm had the issue been left to them by the judge.’
In 2018, another case on the issue of secondary liability was successful, but for different reasons. In R v Dreszer 2018 the court took a very similar approach to the one that was taken in Crilly, although the defendant’s application for leave to appeal was within time. What was determinative in this case, as it was in Crilly, is the fact that the court could not be confident that the jury must have convicted on the basis of intention as opposed to foresight. With regard to the latter, the judge had not ruled out foresight as a basis for conviction. This misdirection meant that the conviction could not be sustained as a safe one.
It has been suggested that this case was decided, not on the strength of the evidence, but on the fact that the defendant’s application for leave to appeal was within time.
‘As a result, the principles in Johnson … did not apply. The court in this case quashed the defendant’s conviction and ordered a retrial. Had the defendant appealed out of time, however, he might not have been able to demonstrate the existence of a substantial injustice, given the high threshold that test imposes. This demonstrates the dissonance between the test for safety and the test for substantial justice, thus highlighting how unfair the application of the latter can be.’ (Crim. L.R. 624)
In February 2019, the CPS updated their guidance on the issue of secondary liability charging decisions, that suggests an acknowledgment of the advancement of the case law since Jogee.
The Supreme Court has been asked to review the ‘substantial injustice’ test and to provide clarification, however, we will have to wait for a case to be taken to the Supreme Court on the matter, in order for the issue to be considered, which may take some time.
Until then, on the basis of the current Crilly case, it would appear that to succeed in an application to appeal post Jogee and Johnson, the following factors are likely to be required:
the absence of any prior agreement to inflict violence;
the absence of weapons;
attempts by the applicant to stop the violence;
withdrawal from the scene by the applicant; and
limited violence (e.g. one punch or a push).