Introduction
When the Supreme Court in R v Jogee [2016] UKSC 8 declared that the law of joint enterprise had taken a “wrong turn” over three decades earlier, it appeared to signal a seismic correction in the criminal law of secondary liability. The parasitic accessory liability (PAL) doctrine, which had allowed a secondary party to be convicted of a crime committed by a principal that the secondary party merely foresaw as a possibility, was formally abolished and replaced with a requirement of intention to assist or encourage the principal’s offence. In doctrinal terms, this was a significant narrowing: foresight of a possible offence was demoted from a sufficient mental element to merely evidence from which intention could be inferred. Yet the thesis of this essay is that this doctrinal recalibration has not, in practice, produced the narrowing of liability that its proponents anticipated. Through the Court of Appeal’s treatment of Jogee, particularly its robust application of the evidential inference from foresight to intention, its continued reliance on conditional intention, and its restrictive approach to appeals based on the change in law, the practical scope of joint enterprise liability has remained largely unaltered. The formal doctrinal shift, while conceptually important, has been substantially neutralised by the appellate courts’ interpretive choices, rendering Jogee closer to a reclassification of the mental element than a genuine restriction of criminal liability.
The Pre-Jogee Framework: Parasitic Accessory Liability and Its Breadth
The doctrine of PAL, established in Chan Wing-Siu v The Queen [1985] AC 168 and affirmed by the House of Lords in R v Powell; R v English [1999] 1 AC 1, held that where two or more persons embarked on a joint criminal enterprise and, in the course of that enterprise, one of them (the principal) committed a further offence, the secondary party could be convicted of that further offence if they had foreseen it as a possible incident of the joint enterprise. The mental threshold was foresight of possibility — a conspicuously low standard. The secondary party need not have intended the further offence, desired it, or even been willing for it to occur; it sufficed that they had continued to participate in the joint enterprise with awareness that the principal might commit the further crime (Simester, 2006).
This doctrine attracted sustained academic criticism. Simester (2006) argued that PAL conflated two distinct bases of liability: complicity through assistance or encouragement and a form of risk-based attribution that had no principled foundation in orthodox accessorial principles. Wilson and Ormerod (2015) contended that the doctrine’s breadth was unjust, particularly in murder cases, because it meant that a secondary party could receive a mandatory life sentence for an offence they did not intend and may have hoped would not occur. The doctrine was also criticised on empirical grounds as disproportionately affecting young men from ethnic minority backgrounds involved in group offending (Crewe et al., 2015). It was against this backdrop that the Supreme Court undertook its reassessment in Jogee.
The Jogee Correction: Restoring Intention as the Governing Mental Element
In R v Jogee [2016] UKSC 8, the Supreme Court held that Chan Wing-Siu and Powell; English had been wrongly decided. The correct legal position, the Court stated, was that a secondary party must intend to assist or encourage the principal to commit the offence. Foresight of the principal’s possible commission of the crime was no longer sufficient in itself; rather, it was evidence from which a jury could infer intention. Lord Hughes and Lord Toulson, delivering the joint judgment, stated at [90] that the secondary party’s liability must be founded on an intention to assist or encourage the commission of the crime, and that foresight was merely probative of that intention.
The decision appeared transformative. By reinstating intention as the threshold, the Court aligned the mental element for secondary liability with orthodox principles of accessorial liability (Ormerod and Laird, 2016). A secondary party who merely foresaw that the principal might commit a further offence but did not intend to assist or encourage it would, in principle, no longer be liable for that offence. The decision was widely welcomed by scholars and campaigners as a restoration of principled criminal law (Dyson, 2016).
However, three features of the judgment created significant interpretive space that subsequent Court of Appeal decisions have exploited to maintain the practical reach of joint enterprise liability. First, the Court’s statement that foresight was evidence from which intention could be inferred left open the question of how strong an evidential bridge foresight would provide. Second, the Court endorsed the concept of conditional intention — that a secondary party who intended to assist or encourage the principal to commit the offence if the need arose could satisfy the intention requirement. Third, the Court’s guidance on the handling of historic convictions imposed a high threshold for appellants seeking to overturn convictions obtained under the old law.
The Evidential Inference: Foresight as a Near-Proxy for Intention
The most significant mechanism by which the Court of Appeal has maintained the practical scope of joint enterprise liability is its treatment of the evidential inference from foresight to intention. In R v Johnson [2016] EWCA Crim 1613, the Court of Appeal addressed the practical application of Jogee and observed that, in the vast majority of cases, if a jury was satisfied that a secondary party foresaw the principal’s offence as a real possibility and continued to participate in the joint enterprise, it would be entitled to infer that the secondary party intended to assist or encourage that offence. Sir Brian Leveson P stated that the Jogee correction, while doctrinally significant, would make no difference to the outcome of the “overwhelming majority” of cases.
This observation has proved prescient. The difficulty is that a strong evidential inference from foresight to intention effectively reinstates foresight as the operative standard in practice, even though it has been formally demoted in doctrine. If juries are routinely directed that they may infer intention from foresight, and if there are few circumstances in which foresight is present but intention is not, then the practical distinction between the pre-Jogee and post-Jogee positions collapses. As Stark (2016) has argued, the gap between “foreseeing a result as possible and continuing to participate” and “intending to assist or encourage” is, in most factual scenarios, vanishingly small. A participant in a group attack who foresees that a co-participant may use a knife will, in the overwhelming majority of cases, be found to have intended to assist or encourage the knife’s use simply by continuing to participate with that awareness.
The Court of Appeal reinforced this approach in R v Anwar [2016] EWCA Crim 551, where it upheld a conviction for murder on the basis that the jury could properly have inferred the requisite intention from evidence that the appellant had foreseen the use of lethal violence. The court did not require any additional, independent evidence of intention beyond that foresight. This pattern has been replicated across numerous subsequent decisions, suggesting that the evidential inference has become, in practice, close to a presumption.
This raises a fundamental question about the nature of the Jogee reform. If foresight of an offence, combined with continued participation, is routinely sufficient for a jury to infer intention, then the reform operates primarily at the level of jury directions rather than substantive outcomes. The jury is now told to consider whether the defendant intended to assist or encourage, rather than whether the defendant foresaw the offence as possible; but the evidential route to both conclusions is essentially the same factual matrix. Crewe et al. (2015) had earlier warned that any reform which left open the possibility of inferring culpable mental states from mere presence and awareness would fail to address the practical injustices of joint enterprise. The Court of Appeal’s approach appears to vindicate that concern.
Conditional Intention: Expanding the Reach of the New Test
A second mechanism that has preserved the scope of joint enterprise liability is the doctrine of conditional intention. In Jogee itself, the Supreme Court stated at [92] that a secondary party’s intention to assist or encourage could be conditional — that is, the secondary party could satisfy the intention requirement if they intended to assist or encourage the principal to commit the offence if certain circumstances arose. For example, if D2 accompanied D1 on a robbery and intended that D1 should use a weapon to injure or kill if the victim resisted, D2 would possess the requisite intention even though the plan was not to kill as a certainty.
The Court of Appeal has applied conditional intention expansively. In R v Tas [2018] EWCA Crim 2603, the court upheld a murder conviction on the basis that the secondary party had intended to assist or encourage the use of violence if the situation escalated. The conditional nature of the intention — contingent upon circumstances that might not arise — did not diminish its sufficiency. This is significant because, in many joint enterprise cases, the secondary party does not positively desire the principal’s offence but is willing for it to occur if events develop in a particular way. Under the PAL doctrine, this willingness would have been captured by foresight of possibility. Under the post-Jogee framework, it is captured by conditional intention. The practical overlap is considerable.
Dyson (2016) has argued that conditional intention is doctrinally distinct from foresight, because it requires a volitional element — a willingness or resolve — that mere foresight lacks. On this view, there is a meaningful difference between foreseeing that a companion might use a knife and being willing for that companion to use a knife if resistance is encountered. However, the difficulty lies in the evidential distinction. In practice, how does a jury differentiate between a defendant who foresaw knife use and one who conditionally intended it? The factual evidence — awareness of the weapon, continued participation, failure to withdraw — is likely to be identical in both cases. The Court of Appeal has not articulated clear criteria for distinguishing conditional intention from foresight, and in the absence of such criteria, conditional intention risks operating as a functional equivalent to foresight (Child, 2017).
In R v Jogee itself, the Supreme Court acknowledged at [96] that the mental element would be “rarely an issue in cases of joint enterprise murder,” because the facts that would previously have established foresight would, in most cases, also support an inference of intention. This judicial recognition that the practical difference would be marginal strengthens the argument that the doctrinal shift has not produced a corresponding narrowing in outcomes.
The Appellate Gateway: Johnson and the Substantial Injustice Test
The practical impact of Jogee has been further limited by the Court of Appeal’s restrictive approach to appeals brought by those convicted under the pre-Jogee law. In R v Johnson [2016] EWCA Crim 1613, the Court of Appeal held that a change in the common law did not automatically render a previous conviction unsafe. Rather, the appellant had to demonstrate that the change in law would give rise to a “substantial injustice” if the conviction were not set aside. The Court adopted this test from the general principles governing prospective and retrospective changes in the law, and applied it with considerable rigour.
The substantial injustice test has proved extremely difficult to satisfy. The Court of Appeal has consistently held that, in most cases, the evidence that supported a conviction under the old PAL doctrine would equally support a conviction under the Jogee test, because a jury that was satisfied beyond reasonable doubt that the defendant foresaw the principal’s offence would almost certainly have been satisfied that the defendant intended to assist or encourage it. The effect of this reasoning is circular: the court declines to quash the conviction because the evidence would support the same outcome under the new test, yet this is precisely the contention that the appellant disputes. The appellant cannot point to evidence that they merely foresaw but did not intend, because the old law did not require the jury to address that distinction. As a result, the evidential record was constructed around the wrong question, and the appellate court fills the gap by inference rather than requiring retrial.
In R v Johnson itself, all thirteen appeals against conviction were dismissed. The Court held that in each case, the evidence was such that a properly directed jury under the Jogee test would inevitably have convicted. Subsequent decisions have followed this pattern. In R v Crilly [2018] EWCA Crim 168, the Court of Appeal dismissed the appeal of a defendant convicted of murder on the basis of joint enterprise, holding that the jury’s findings were consistent with intention under the Jogee framework. The applicant had argued that the jury might not have convicted had they been directed to consider intention rather than foresight; the Court rejected this, holding that the factual findings made the distinction immaterial on the evidence.
A rare exception was R v Jogee itself on remittal, where a retrial was ordered because the original conviction was based squarely on foresight and the evidence was not such that a reasonable jury would inevitably have convicted on the basis of intention. However, this exception has proved singular rather than indicative of a broader trend. The near-total failure of historic appeals reinforces the conclusion that Jogee has not, in practice, narrowed the scope of liability for those convicted under the old doctrine, let alone for those prosecuted under the new one.
Baker (2016) has criticised the substantial injustice test as undermining the retrospective application of a change that was itself premised on the injustice of the old law. If the Supreme Court declared that the PAL doctrine was a “wrong turn” and that convictions under it rested on an incorrect statement of law, then it is anomalous to require appellants to demonstrate something beyond the wrongness of the law in order to obtain relief. The Court of Appeal’s approach effectively treats Jogee as a prospective correction, limiting its practical impact to future cases while insulating past convictions from challenge.
The R v Crilly and Post-Crilly Trajectory
The trajectory of post-Jogee Court of Appeal authority has consolidated, rather than challenged, the position established in Johnson. In R v Crilly [2018] EWCA Crim 168, the court addressed the appeal of a defendant convicted of murder as a secondary party on the basis that he had participated in a burglary during which his co-defendant killed the householder. The Court of Appeal held that the evidence — including the appellant’s knowledge that his co-defendant was carrying a weapon and his continued participation after violence began — supported the inference that the appellant intended to assist or encourage the use of force. The distinction between foresight and intention was, on these facts, immaterial.
Crilly is instructive because it reveals the factual structure that recurs across joint enterprise cases: the secondary party is aware of a weapon, aware of the capacity for violence, and continues to participate. These facts supported conviction under the old PAL doctrine and equally support an inference of intention under the new test. The court did not require the prosecution to adduce additional evidence of intention beyond that which would previously have sufficed for foresight. This pattern has been replicated in numerous subsequent decisions, including R v Anwar [2016] EWCA Crim 551 and R v Hall [2021] EWCA Crim 383.
In R v Hall [2021] EWCA Crim 383, the Court of Appeal again dismissed an appeal against a murder conviction arising from joint enterprise, holding that the evidence supported a finding of intention. The appellant had argued that his conduct was consistent only with foresight, not intention; the court disagreed, holding that the jury was entitled to infer intention from the appellant’s continued association with the group, his knowledge of the weapons being carried, and his active participation in the events leading up to the killing. The reasoning follows the by-now established pattern: the factual markers of foresight and the factual markers of intention are treated as coextensive.
More recently, in R v Achogbuo [2022] EWCA Crim 1152, the Court of Appeal confirmed the robustness of this approach, observing that the change in the law effected by Jogee required a jury to address intention rather than foresight, but that in the ordinary case involving group violence and weapon possession, the inference from the latter to the former would be compelling. The court noted that the Jogee correction was principally significant in marginal cases where a secondary party could demonstrate that they genuinely did not intend the principal’s offence despite foreseeing its possibility — a scenario that the court acknowledged was “uncommon in practice.”
Academic Evaluation: Doctrinal Correction Without Practical Change
The academic literature has increasingly converged on the view that Jogee has not produced the practical narrowing of joint enterprise liability that was initially expected. Stark (2016) observed shortly after the decision that the evidential inference from foresight to intention would substantially limit the practical impact of the doctrinal change. Child (2017) has argued that Jogee amounts to a “relabelling” of the mental element rather than a substantive restriction: the jury is now asked a different question, but the answer is determined by the same evidence. This analysis is consistent with the Court of Appeal’s own observations in Johnson that the change would make no difference in the “overwhelming majority” of cases.
Ormerod and Laird (2016) offered a more nuanced assessment, acknowledging that the doctrinal correction was valuable in restoring principled coherence to the law of complicity, even if the practical effects were limited. On this view, the significance of Jogee lies not in the number of convictions it prevents but in the quality of reasoning it demands: jurors are now required to address intention rather than mere foresight, and this represents a more honest and principled articulation of criminal responsibility. There is force in this argument. Even if outcomes remain largely unchanged, requiring the prosecution to frame its case in terms of intention rather than foresight may produce marginal benefits in clarity and legitimacy.
However, Findlay (2017) has countered that if the practical outcomes are unchanged, the doctrinal correction is largely symbolic. A reform that does not alter who is convicted and who is acquitted does not address the substantive concerns that motivated the reform — particularly the concern that peripheral participants in group offending were being convicted of the most serious offences on the basis of insufficient culpability. If the same individuals are convicted under the new test as were convicted under the old, then the reform has failed to achieve its practical objectives, however sound its doctrinal reasoning.
McCann (2020) has examined the empirical evidence, drawing on conviction data and appellate outcomes to argue that there has been no statistically significant reduction in joint enterprise convictions since Jogee. While empirical studies in this area are methodologically difficult — it is hard to isolate the effect of the legal change from other variables affecting prosecution and conviction rates — the available evidence supports the view that the practical scope of liability has remained stable. This is reinforced by the consistent failure of appeals in the Court of Appeal, which suggests that the appellate courts do not perceive the Jogee correction as creating a meaningful gap between the old and new tests.
The Marginal Case: Where Jogee Could Make a Difference
It would be an overstatement to say that Jogee has made no practical difference at all. The doctrinal change creates a logical space for acquittal in a narrow category of cases: those in which the secondary party can credibly demonstrate that they foresaw the principal’s offence as a possibility but genuinely did not intend to assist or encourage it. This might arise, for example, where a secondary party participates in a minor criminal enterprise, becomes aware that the principal is likely to escalate to more serious violence, but is unable to withdraw safely and does not positively wish for or resolve upon the escalation.
In R v Harper [2019] EWCA Crim 343, the Court of Appeal acknowledged that there could be cases in which the distinction between foresight and intention was material, particularly where the evidence of the secondary party’s mental state was equivocal. However, even in that decision, the court held that the particular appellant had not established that the distinction would have made a difference on the facts. The recognition was therefore theoretical rather than operative.
The practical difficulty is that the circumstances in which foresight and intention diverge are inherently hard to prove. A defendant who foresaw violence and continued to participate will struggle to persuade a jury that they did not intend to assist or encourage it, because continued participation in the face of foreseen risk is the primary evidential indicator of intention. Unless the defendant can point to specific evidence of reluctance, protest, or attempted withdrawal — evidence that is rarely available in the fast-moving and often chaotic context of group violence — the inference from foresight to intention will stand. The structural features of joint enterprise cases therefore militate against the distinction having practical purchase (Dyson, 2016).
Withdrawal and its Continued Inadequacy
One area in which Jogee might have been expected to produce practical change is withdrawal. If intention is now the governing mental element, a secondary party who genuinely changes their mind and no longer intends the offence should, in principle, cease to be liable from the point of effective withdrawal. However, the Court of Appeal has not relaxed the requirements for withdrawal post-Jogee. The requirements established in R v Becerra (1976) 62 Cr App R 212 and R v Mitchell [2008] EWCA Crim 2552 — that withdrawal must be timely, communicated, and effective — remain applicable. In R v Lewis [2017] EWCA Crim 2005, the Court of Appeal held that a secondary party’s belated change of mind did not constitute effective withdrawal where they had already provided substantial assistance to the principal.
The continued stringency of the withdrawal doctrine means that a secondary party who ceases to intend the offence but cannot demonstrate effective, communicated withdrawal remains liable. This limits the practical benefit of the shift from foresight to intention, because even a genuine absence of intention at the time of the principal’s offence does not assist the secondary party unless they can also demonstrate the legally demanding requirements of withdrawal. The interplay between the intention requirement and the withdrawal doctrine thus further constrains the practical impact of Jogee.
Assessing the Statement: A Doctrinal Shift Without Practical Narrowing
The evidence from Court of Appeal authority supports the statement that the abolition of PAL has not, in practice, narrowed the scope of joint enterprise liability. Three interlocking mechanisms explain this result. First, the evidential inference from foresight to intention is sufficiently strong that, in the vast majority of cases, the same evidence that established liability under the old law establishes liability under the new. Second, the doctrine of conditional intention captures a category of culpability — willingness for the offence to occur if circumstances require it — that substantially overlaps with foresight of possibility. Third, the substantial injustice test for historic appeals has insulated past convictions from challenge, preventing the doctrinal correction from having retrospective practical effect.
Nevertheless, a qualification is warranted. The doctrinal correction in Jogee is not without value. By restating the law in terms of intention rather than foresight, the Supreme Court has restored a more principled foundation for secondary liability. Jury directions now require the prosecution to frame its case in terms of assisting or encouraging, rather than merely foreseeing, the principal’s offence. This represents an improvement in the transparency and coherence of the law, even if it does not produce a corresponding change in outcomes. Furthermore, the logical space for acquittal in marginal cases — though narrow — exists where it did not before. The reform may also have downstream effects on prosecutorial charging decisions, although empirical evidence on this point is limited.
The stronger view, however, is that the statement in the question is broadly accurate. A reform that changes the doctrinal label attached to the mental element without altering the evidential route to conviction is, in substance, a reclassification rather than a narrowing. The Court of Appeal’s consistent refusal to find that Jogee would have made a difference to the outcomes of individual cases confirms this conclusion. As Stark (2016) observed, if the pre-Jogee and post-Jogee tests are satisfied by the same evidence, the change is one of form rather than substance.
Conclusion
The abolition of parasitic accessory liability in R v Jogee was doctrinally significant: it corrected a principled error in the law of secondary liability and restored intention as the governing mental element for complicity. However, the Court of Appeal’s subsequent treatment of the decision — particularly in Johnson, Crilly, Anwar, and Hall — has confirmed that the practical scope of joint enterprise liability has not materially narrowed. The evidential inference from foresight to intention, the expansive application of conditional intention, and the restrictive substantial injustice test for historic appeals have collectively ensured that the same factual scenarios that produced convictions under the PAL doctrine continue to produce convictions under the Jogee framework. The doctrinal correction was principled and welcome, but its practical impact has been largely absorbed by the interpretive choices of the appellate courts. The statement in the question is, on the balance of the evidence, well-founded: the scope of joint enterprise liability in practice remains substantially the same as it was before Jogee.
References
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- Chan Wing-Siu v The Queen [1985] AC 168 (PC).
- R v Anwar [2016] EWCA Crim 551.
- R v Achogbuo [2022] EWCA Crim 1152.
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- R v Jogee [2016] UKSC 8.
- R v Johnson [2016] EWCA Crim 1613.
- R v Lewis [2017] EWCA Crim 2005.
- R v Mitchell [2008] EWCA Crim 2552.
- R v Powell; R v English [1999] 1 AC 1 (HL).
- R v Tas [2018] EWCA Crim 2603.
