Case Summary: R v JOGEE : R v RUDDOCK (2016)

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The doctrine of parasitic accessory liability, laid down by the Privy Council in Chan Wing Siu v R. [1985] A.C. 168, could not be supported. The Supreme Court re-stated the principles concerning the liability of accessories or secondary parties.  

In conjoined appeals against decisions ([2013] EWCA Crim 1433) upholding convictions for murder, the Supreme Court was asked to review the doctrine of parasitic accessory liability, which had been laid down by the Privy Council in Chan Wing Siu v R. [1985] A.C. 168.

In Chan Wing Siu, it was held that if two people set out to commit an offence and in the course of that joint enterprise one of them (D1) committed another offence (crime B), the second person would be guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as he did.

HELD: The Chan Wing Siu principle could not be supported. The introduction of the principle was based on an incomplete, and in some respects erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments. Reversing a statement of principle which had been made and followed by the Privy Council and the House of Lords on a number of occasions was a big step, but it was right to do so for several reasons. First, the court had had the benefit of a much fuller analysis than on previous occasions when the topic was considered. Second, it could not be said that the law was now well established and working satisfactorily; it remained highly controversial and a continuing source of difficulty for trial judges. Third, secondary liability was an important part of the common law, and if a wrong turn had been taken, it should be corrected. Fourth, in the common law foresight of what might happen was ordinarily no more than evidence from which a jury could infer the presence of a requisite intention. It might be strong evidence, but its adoption as a test for the mental element for murder in the case of a secondary party was a serious and anomalous departure from the basic rule, which resulted in an over-extension of the law of murder and a reduction of the law of manslaughter. Murder already had a relatively low mens rea threshold, as it included an intention to cause serious injury, without intent to kill or to cause risk to life. The Chan Wing Siu principle extended liability for murder to a secondary party on the basis of a still lesser degree of culpability, namely foresight only of the possibility that the principal might commit murder but without there being any need for an intention to assist him to do so. Fifth, the rule had the striking anomaly of requiring a lower mental threshold for guilt in the case of the accessory than in the case of the principal, Chan Wing Siu disapproved. It would not be satisfactory for the court simply to disapprove the Chan Wing Siu principle. Those concerned with criminal justice, including members of the public, were entitled to expect a clear statement of the relevant principles. The proper course was to re-state the principles which had been established over many years before the law took a wrong turn. The error was to equate foresight with intent to assist, as a matter of law; the correct approach was to treat foresight as evidence of intent. The long-standing practice, before Chan Wing Siu, of inferring intent to assist from a common criminal purpose which included the further crime, if the occasion for it were to arise, was always a legitimate one; what was illegitimate was to treat foresight as an inevitable yardstick of common purpose. The court proceeded to re-state the relevant principles. It also addressed the potential impact of the instant decision on past convictions (see paras 79-84, 87-100 of judgment).

Appeals allowed.

Courtesy of

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