Accessory liability after R v Jogee: foresight is evidence of intent, not a substitute for it
Marcus Hill and Dwayne Price agree to burgle a warehouse in Luton at night. Marcus knows that Dwayne often carries a knife and realises that Dwayne might use it to cause serious injury if they are disturbed. Marcus has told Dwayne that if anyone comes they should run, and that nobody is to be hurt. A security guard disturbs them. Dwayne stabs him, intending to cause him grievous bodily harm, and the guard dies. Marcus is charged with murder as an accessory.
Which of the following correctly states what the prosecution must prove for Marcus to be guilty of murder?
Choose one answer to see the reasoning.
Worked answer
Correct answer C: That Marcus assisted or encouraged Dwayne, intending to assist or encourage him to act with intent to kill or cause grievous bodily harm, even conditionally; foresight is evidence of that intent.
THE RULE TO REMEMBER
An accessory to murder must intend to assist or encourage the principal to act with intent to kill or cause GBH (possibly conditionally); foresight is evidence of that intent, not a substitute for it.
Accessory liability after R v Jogee: foresight is evidence of intent, not a substitute for it
In R v Jogee [2016] UKSC 8 the Supreme Court held that the courts had taken a wrong turn in Chan Wing-Siu by treating foresight of what the principal might do as sufficient for accessory liability. An accessory must have assisted or encouraged the principal's offence, and intended to assist or encourage the principal to commit it with whatever mental element the offence requires. For murder, that means an intention to assist or encourage the principal to act with intent to kill or cause grievous bodily harm. That intention may be conditional, for example if resistance is met. Foresight that the principal might act in that way is evidence from which the jury may infer intent, but it is not the test itself. The jury must decide whether Marcus had that intention. If he did not, but took part in an unlawful and dangerous enterprise that led to death, he may be guilty of manslaughter.
Why A is wrong: This is the Chan Wing-Siu foresight test, which Jogee held to be wrong.
Why B is wrong: No prior agreement is required, and any agreement may be tacit; what matters is intentional assistance or encouragement.
Why D is wrong: Mere presence or association is not enough; guilt by association has no part in the common law.
Why E is wrong: An intent to assist the causing of grievous bodily harm is enough for murder, and an accessory without that intent may still be guilty of manslaughter.
A little more practice done.
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