The Jogee Ruling — The Law Since 2016
Prior to the Supreme Court's decision in R v Jogee [2016] UKSC 8, a defendant could be convicted of murder if they simply foresaw that a co-defendant might kill someone in the course of a joint enterprise. The Supreme Court held that this represented a departure from correct legal principle and restored the orthodox position. The prosecution must now prove that the defendant intended to assist or encourage the specific act committed by the principal, and that they shared the relevant intent — for murder, an intention that the victim be killed or that grievous bodily harm be caused. Foresight that a crime might be committed is evidence from which intent may be inferred, but it is not sufficient on its own.
What the Prosecution Must Prove
For every defendant charged under joint enterprise principles, the prosecution must establish two elements. The physical element — that the defendant assisted or encouraged the commission of the offence, for example by providing a weapon, acting as a lookout, preventing the victim from escaping, or offering verbal encouragement. And the mental element — that the defendant intended to assist or encourage, and shared the intent that serious harm or death be caused to the victim.
Conditional Intent and Weapons
Where a defendant joined a group to carry out one type of offence and a co-defendant went further and used a weapon, the question arises whether the accessory can properly be convicted of murder. The answer depends on whether the use of the weapon was within the scope of the agreement and the defendant's intent. If the defendant foresaw that a co-defendant might produce a weapon and conditionally assented to this, they may be convicted of murder. If the use of the weapon was genuinely outside the scope of the plan, the defendant may be guilty of a lesser offence or no offence at all.
Challenging Association Evidence
In many joint enterprise prosecutions involving groups of young people, the prosecution uses association evidence to establish common purpose. This may include social media content, music videos, group chats, and evidence of prior contact between defendants. Challenging this evidence — by demonstrating that association with others does not establish participation in a specific plan — is frequently a central element of the defence.
Withdrawal
A person who was party to a joint enterprise may in some circumstances be able to demonstrate that they withdrew from it before the fatal act was committed. Withdrawal requires more than simply walking away — it requires some communication or action that makes clear to the other participants that the defendant is no longer party to the plan. Evidence of withdrawal, or of an attempt to discourage the violence, is relevant to whether the defendant can properly be convicted.