Prosecuting Complicity

Abstract

In this paper I try to outline the implications of the decision in R v Jogee for practice. I try to explain what the substantive law now requires and how that should be implemented in practice. I argue that particular care needs to be taken so that the profession properly understand and implement the substantive law as recognised in R v. Jogee. I shall try to explain the conceptual distinction between a fundamentally different act and a supervening act. A supervening act cancels out an earlier act, but a fundamentally different act does not necessarily involve a cancelling out. Intentional g.b.h. is a supervening act when the accessory only intended the perpetrator to perpetrate an act resulting in a.b.h. The g.b.h. should cancel out the a.b.h. since the perpetrator has departed from the plan and perpetrated a different act to what was originally intended by the parties. Thus, it is not possible to reconcile the Supreme Court’s obsequiousness towards the supervening act rule with its finding that manslaughter can be an alternative to murder for accessories when the perpetrator has inflicted g.b.h. resulting in V’s death, if the accessory intended a.b.h. be inflicted upon V. Additionally, manslaughter is not a lesser included offence to murder and thus such a conviction should not be available where P perpetrates a murder not intended by the accessory; instead, the accessory should be charged with the inchoate offence for attempting to encourage the lesser crime. It shall also be argued that conditional intention is only an issue in certain factual scenarios such as where it is not certain which crime will be perpetrated or where a crime is intended upon some contingency arising. Intention is intention whether it depends on a condition or not. Finally, it will be argued the spontaneous outbreak of multi-handed violence cases will pose great challenges as far as proof of intentional encouragement is concerned, but that can be overcome simply by charging such cases under sections 44 or 45 of the Serious Crime Act 2007.