The Doctrine of Secondary Liability: ‘wrong turn’ corrected

 -  -  605

Spread the love

Given the ambiguous language of the Accessories and Abettors Act 1861, the contentious nature of the doctrine of secondary liability comes as no surprise. The Supreme Court redefined this area of law in the landmark case of R v Jogee,[1] where their Lordships unanimously held that the law took a ‘wrong turn’ more than thirty years ago in the case of Chan Wing-Siu.[2] They identified the error of law as one of eliding mere foresight with intent. The purpose of this article is two-fold: first, it will provide a short case brief on Jogee in the aims of explaining how the common law has provided the well overdue change for the doctrine of secondary liability. Secondly, this article will demonstrate how statute, specifically the Accessories and Abettors Act 1861 contribute to the questionable nature of this doctrine. This will be followed by a proposal to reform section 8 of the Act namely, to remove its archaic and ambiguous language with the goal of establishing greater consistency with the common law interpretation and application of this doctrine.


Jogee was found liable for murder as an accomplice. Along with his friend Hirsi, he was intoxicated when the pair visited the home of Naomi Reid. Jogee was outside the home shouting encouragement to Hirsi who stabbed Naomi’s partner to death inside the home. The Court of Appeal applied the principle of parasitic accessorial liability as laid down in Chan Wing-Siu.[3] This principle holds that if two people set out to commit crime A, and in the course of committing this crime, one of them (D1) commits crime B, the second person (D2) is guilty as an accomplice to crime B if he had foreseen the possibility of D1’s actions.  In this case it was held that mere foresight of an intention to cause death or grievous bodily harm was sufficient in and of itself to establish D2’s criminal liability. Therefore, Jogee as D2, was convicted of murder because he foresaw the risk that D1 may cause death or grievous bodily harm.

On appeal, the Supreme Court was asked to reconsider the invidious doctrine of parasitic accessorial liability. The Court held that mere foresight was no longer sufficient to constitute intention, rather foresight should be used as evidence of such.[4] Moreover, to convict an accomplice of murder it must be proved that they intended to assist or encourage the commission of the crime by the principal offender. Upon retrial, Jogee’s conviction of murder was quashed and replaced with manslaughter.

The Supreme Court in Jogee asserted that the effect of putting the law right is by no means rendering past convictions, which were arrived at by faithfully applying the law at the time, as invalid.[5] Furthermore, the Court stressed that their judgment is not to open the floodgates and grant automatic leave to appeal for past offenders under secondary liability. The court may grant leave if ‘substantial injustice’ can be demonstrated for appeals brought after the 28-day[6] strict time period. This requirement is analogous to the well-established statutory requirement of the Criminal Appeal Act 1968: it is not sufficient for there to have been a misdirection or error in law.[7] Rather, the court should allow an appeal if they think that the conviction is unsafe.[8]

The case of R v Johnson and others[9] was one of the first cases challenged post-Jogee. This case was one of six separate cases involving thirteen defendants to which three of the country’s most senior judges refused to overturn guilty verdicts.[10]In the case of Johnson, it was held that there was a common purpose by all defendants involved to cause serious bodily harm, therefore the convictions of murder were not rendered unsafe. Given this, it was held that their verdicts would have been no different post-Jogee. Furthermore, the court refused to grant leave to appeal as they were satisfied that there was no substantial injustice involved.[11]

A similar conclusion was reached in the case of R v Burton and another[12] where the court held that the applicants had the necessary conditional intent that the knife would be used to kill or cause serious bodily harm.[13] Although knowledge of the weapon is no longer required, but if proven, it may lead to an inference of intention, consequently making the prosecution’s case stronger post-Jogee.


To a large extent, the doctrine of joint enterprise is a common law doctrine, however its basic structure is codified by section 8 of the Accessories and Abettors Act 1861.[14] This basic nature has contributed to the ambiguity of crimes committed by multiple offenders. For example, section 8 attempts to define an accomplice as someone who aids, abets, counsels or procures the commission of a crime. It has been argued that these words should be given their ordinary meaning.[15] This begs the question of what exactly would the ordinary meaning of counselling, for example, be? The failure of this Act to explicitly define these terms over-complicates the very scope of an accomplice, a view which was supported by the Court of Appeal in R v Stringer[16] where it was held that the law on accomplices has become overly technical and complex. As recommended by the Law Commission, the aforementioned four terms listed under section 8 can be broadly translated under two categories namely, assisting and encouraging crime.[17] This recommendation has been supported by common law interpretation, specifically by Judge Bevan QC in the case of R v Stringer where he described the participation of an accomplice as “…encouragement, by words or actions, to assist…”[18]

The controversial nature of the Accessories and Abettors Act 1861 comes as no surprise given the fact that it is an outdated piece of legislation which uses archaic language. A vast number of crimes are carried out by people working together, therefore it is absolutely essential that the criminal law has effective rules in place to deal with the conduct of each person involved. Since this Act applies to criminal liability of joint defendants, its clarity is of utmost importance to determine its just application on the said defendants.

The clarity of this Act can easily be achieved by amending it to match both the common law interpretation of secondary liability as set out in Jogee as well as other legislation covering similar grounds such as the Serious Crime Act 2007. Section 8 of the Accessories and Abettors Act 1861 should be reworded by removing the terms “aid, abet, counsel and procure” and replaced with “assist and encourage”. By amending the Act in this way, we can expect a more consistent application of the doctrine. Moreover, this streamlined application can be strengthened further by amending the Serious Crime Act 2007. For instance, section 45 of the latter Act states that, “a person commits an offence if he does an act capable of encouraging or assisting the commission of an offence…” This is similar (apart from the use of archaic language) to section 8 of the 1861 act in the sense that it also discusses the assistance of a person in the commission of a crime to be an offence. Therefore, section 8 should be amended and should read as follows “whoever shall assist and encourage the commission of any indictable offence…shall be…punished as a principal offender.” Hence, by adopting a uniform approach to the terminology used by both Acts, the doctrine of secondary liability can be interpreted with much more clarity.



Attorney-General’s Reference (No 1 of 1975) 2 ALL ER 684

Chan Wing-Siu v R [1985] AC 168

R v Burton and another [2016] EWCA Crim 1613

R v Jogee [2016] UKSC 8

R v Johnson and others [2016] EWCA Crim 1613

R v Stringer [2011] EWCA Crim 1396


Accessories and Abettors Act 1861

Criminal Appeal Act 1968

Criminal Procedure Rules

Serious Crime Act 2007


Ormerod D and Laird K, Smith, Hogan and Ormerod’s, Text, Cases, and Materials on Criminal Law (12 edn, Oxford University Press 2017


Walker S, “Total wipeout: Court of Appeal rules on the first post-Jogee joint enterprise appeals” The Justice Gap: Know your Rights (London, 31 October 2016) <> accessed 16 November 2017


 Law Commission, Participating in Crime (Law Com No 305, 2007)

[1] [2016] UKSC 8.

[2] Chan Wing-Siu v R [1985] AC 168.

[3] [1985] AC 168.

[4] [2016] UKSC 8 [100].

[5] ibid.

[6] Criminal Procedure Rules, rule 68.2(b).

[7] Criminal Appeal Act 1968, section 2(1).

[8] ibid, section 2(2).

[9] [2016] EWCA Crim 1613.

[10] Sophie Walker, “Total wipeout: Court of Appeal rules on the first post-Jogee joint enterprise appeals” The Justice Gap: Know your Rights (London, 31 October 2016) <> accessed 16 November 2017.

[11] [2016] EWCA Crim 1613 [56-57].

[12] [2016] EWCA Crim 1613.

[13] Ibid [82].

[14] David Ormerod and Karl Laird, Smith, Hogan and Ormerod’s, Text, Cases, and Materials on Criminal Law (12 edn, Oxford University Press 2017).

[15] Attorney-General’s Reference (No 1 of 1975) 2 ALL ER 684, 686, per Lord Widgery CJ.

[16] [2011] EWCA Crim 1396 [33].

[17] Law Commission, Participating in Crime (Law Com No 305, 2007) para 7.1.

[18] [2011] EWCA Crim 1396 [33].

60 recommended
comments icon 5 comments
5 notes
bookmark icon

One thought on “The Doctrine of Secondary Liability: ‘wrong turn’ corrected

    Write a comment...

    Your email address will not be published. Required fields are marked *