Jogee, R v

A secondary party may participate in a joint enterprise by encouragement as well as by physical assistance. There is no principled distinction between those forms of participation for the required mental element.

Liability for murder arises where the secondary party appreciates that the principal might intentionally kill or cause really serious injury, yet willingly lends support. Actual knowledge that the principal has obtained the weapon is not required where the evidence permits that inference of foresight. A departure by the principal into fundamentally different, unforeseen violence may fall outside the joint enterprise.

The appellant and Hirsi were convicted of the murder of Paul Fyfe at Leicester Crown Court. Hirsi stabbed Fyfe with a kitchen knife. The prosecution alleged that the appellant, who was outside or at the doorway, encouraged Hirsi during the confrontation.

The appellant appealed against conviction on grounds concerning joint enterprise. He contended that there was no case to answer and that, in an encouragement case, the prosecution had to prove that he knew Hirsi possessed the knife. He also challenged the direction that it was enough if he realised that Hirsi might use it with intent to cause serious bodily harm.

He further sought leave to appeal against his 20-year minimum term.

1. The conviction appeal was dismissed. The evidence, including the earlier incident involving the kitchen knife, the appellant's knowledge of its availability, his conduct at the scene and evidence that he egged Hirsi on, was capable of supporting the requisite inference. The credibility and inconsistencies of the sole eyewitness were matters for the jury.
2. There was no unfair shift in the prosecution case. Its case had throughout relied on continued association and encouragement as parts of the factual basis for joint enterprise.
3. The court rejected the proposed distinction between participation by physical acts and participation by encouragement. Encouragement is itself a form of participation, because the secondary party lends support to the principal actor. The secondary party's mental element is an appreciation that the principal might inflict grievous bodily harm, coupled with a willingness nevertheless to provide that support.
4. Accordingly, the judge correctly directed the jury that it could convict if sure that the appellant encouraged Hirsi and, when doing so, realised that Hirsi might use the kitchen knife with intent to kill or cause serious bodily harm. The appellant did not have to know that Hirsi had the knife in his possession. The court followed the reasoning in Rahman [2009] 1 AC 129, including the qualification for violence fundamentally different from that foreseen.
5. The sentence appeal was allowed. Although aggravating features justified a minimum term well above the 15-year starting point, the appellant had not intended to kill and was the secondary rather than primary offender. The minimum term was substituted from 20 years to 18 years.

• Court of Appeal (Criminal Division): In [2013] EWCA Crim 1433, the court dismissed the appeal against conviction but allowed the sentence appeal by substituting an 18-year minimum term.
• Leicester Crown Court: On 28 March 2012, the appellant was convicted of murder and sentenced to life imprisonment with a 20-year minimum term, less time spent on remand.