The Right Honourable
Ministry
of Justice
Elizabeth Truss MP
Lord Chancellor & Secretary
of State for Justice
Robert Neill MP
Chairman of the Justice Committee
House of Commons
London
SW1AOAA
16 November 2016
Dear Bob,
JUSTICE COMMITTEE RECOMMENDATIONS ON JOINT ENTERPRISE LAW
In its Fourth Report of Session 2014-15, "Joint Enterprise Follow-up" (17 December 2014), the Justice
Committee called upon the Government to launch an urgent review of a controversial aspect of the law on
joint enterprise, known as 'parasitic accessory liability'. It also recommended that the Ministry of Justice
and the Crown Prosecution Service should record how often this principle was used to secure
prosecutions and convictions.
The Rt Hon Michael Gove MP wrote to you on 11 December 2015 to explain that the Supreme Court was
already considering a case involving parasitic accessory liability, and that my department would write
again when the outcome was known. The Court delivered its judgment in R v Jogee on 18 February 2016,
effectively abolishing this strand of liability and going a long way, we suspect, to addressing previous
Committee members' concerns.
Prior to the Court's judgment, parasitic accessory liability arose where two people participated together in
one offence (e.g. a burglary) and in the course of events Person 1 committed a second offence (e.g.
he/she murdered a security guard). If Person 2 foresaw that Person 1 might act with the intention to kill or
cause really serious harm and participated in the burglary regardless, he/she would be guilty of murder as
well as Person 1.
The previous Committee was concerned by reports that the "foresight" principle could criminalise people
who had peripheral or no involvement in the commission of the second offence. Where that offence was
murder, Person 2 would receive a mandatory life sentence along with Person 1 and critics claimed this did
not always reflect his or her level of culpability. Concerns were also raised that black and minority ethnic
groups were over-represented amongst those convicted.
The Supreme Court has now concluded that a person cannot be guilty merely for "foreseeing" that an
accomplice might commit a second offence during the course of the original plan. It considered that the
law should revert to the well-established position in relation to other types of joint enterprise liability that a
person can only be guilty of offences committed by other members of the group if he or she intentionally
encouraged or assisted those offences to be committed. Foresight might provide evidence of intent, but
on its own would not be sufficient to establish guilt. Where somebody participated in an offence realising
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there was a risk of harm and death resulted (though without intending that should happen), he or she
could still be convicted of manslaughter.
The Court's decision only alters the law in relation to cases involving parasitic accessory liability; it does
not purport to have an impact on the wider law on joint enterprise. Neither does the judgment mean that
everybody convicted on the basis of parasitic accessory liability will have their convictions quashed. The
Court made it clear that a convicted offender would have to make an out-of-time application to the Court
of Appeal or seek a review by the Criminal Cases Review Commission. The judgment confirms that the
Court of Appeal would only grant permission to appeal if it considered the applicant had suffered
"substantial injustice" and that "it will not do so simply because the law applied has now been declared to
have been mistaken". The Court states that the same principles would govern the decision of the Criminal
Cases Review Commission if asked to consider referring a conviction to the Court of Appeal.
We have been considering the implications of the judgment carefully and I am particularly mindful of the
uncertainty the judgment has created for victims' families who do not know if the offenders involved in the
death of their loved ones will successfully appeal. The Minister of State for Policing, Fire, Criminal Justice
and Victims has met the Victims' Commissioner and members of the Victims' Panel to reassure them
about the narrow category of cases to which the judgment applies, and that families will be kept informed
by the relevant agencies if a prisoner successfully appeals or is released from custody.
We have concluded that no further review of the law is necessary at this time. Law enforcement agencies
will be updating their guidance to reflect the law as it now stands. I trust that previous and existing
Committee members will welcome these developments. As parasitic accessory liability no longer exists as
a distinct strand of liability, MoJ and CPS are not currently counting the number of these cases.
Best wishes,
ELIZABETH TRUSS MP 2