Prosecuting Complicity: The CPS Legal Guidance on Secondary Liability

Abstract

The CPS has revised its “legal guidance” on secondary liability (previously titled “Joint Enterprise”), following the decision of the Supreme Court in R. v. Jogee; Ruddock v. The Queen and has called a consultation on the revised guidance. The guidance sets out the core principles of secondary liability, as stated in R. v. Jogee and the subsequent Court of Appeal cases on secondary liability, R. v. Johnson & Others and R. v. Anwar. It is probably not surprising that the CPS has issued a consultation, because the law has changed very substantially. The decision in Chan Wing-Siu v. The Queen not only resulted in later courts interpreting the mental element in complicity as mere foresight, but also in those courts developing a doctrine of extended joint enterprise. R. v. Jogee held that the mental element in complicity prior to Chan Wing-Siu was intention and that the doctrine that became known as the extended joint enterprise doctrine did not exist at common law in England and Wales prior to that decision. The effect of the decision in R. v. Jogee is that factual scenarios involving collateral crimes now have to be brought within the purview of section 8 of the Accessories and Abettors Act 1861 where the conduct element is assistance or encouragement.

In this paper I attempt to respond to some of the questions raised by the CPS in its consultation concerning its new legal guidance on this subject. I shall try to make some substantive points about how prosecutors should approach charging decisions post-Jogee. The CPS has published an interim guidance, which it has sought views on as the basis of its consultation. It reports: “If the consultation results in changes being made to this interim guidance, the legal guidance will be updated accordingly.” The CPS consultation document provides guidance on how it currently thinks prosecutors should approach charging decisions in cases of secondary liability including those rare cases where conditional intent might be an issue. It is important for barristers to have clear guidance since it is arguable the Chan Wing-Siu doctrine emerged from the High Court of Australia’s decision in John v The Queen, which itself took a wrong path due to the way counsel argued the case in the Supreme Court of New South Wales before it went up to the High Court.

Keywords: complicity, joint enterprise and prosecution guidance

JEL Classification: K