Authored By: Blessing Ogbonnaya
Coventry University
Introduction
Joint enterprise remains one of the most contentious and debated areas of English criminal law, particularly in cases involving serious violence and group offending. It is often misunderstood as a standalone offence; In reality, joint enterprise is a legal framework for attributing criminal liability to a person who did not commit the principal offence themselves, but who intentionally assists, encourages, or participates in committing that offence. It arises in situations where individuals act together in furtherance of a criminal plan, making secondary parties potentially responsible for crimes conducted by others within that plan.
At the heart of this doctrine lies a question central to criminal culpability: what mental element is required for a secondary party to be held liable for a principal’s crime? Historically, the law permitted convictions of secondary parties if they foresaw the risk that a co-offender might commit a further offence. Under this approach, it was possible for individuals to receive life sentences for murder or other serious offences despite never having intended to cause death or serious injury, provided they were adjudged to have foreseen the possibility of such harm.
The Supreme Court addressed this fundamental issue in R v Jogee, acknowledging that the law had taken a “wrong turn” over several decades and reaffirming that intention, rather than foresight, is the requisite mens rea for secondary liability. The Court emphasised that foresight of a potential offence can serve as evidence from which intention may be inferred but is not sufficient on its own to establish criminal liability. Despite the doctrinal significance of this correction, the practical effects of Jogee have been more muted than many had anticipated. Post-Jogee jurisprudence, prosecutorial practice, and criminal justice outcomes suggest that secondary liability still operates in ways that allow foresight to influence, and in some cases effectively determine, conviction outcomes. This raises questions about whether Jogee represents a true reform or merely a symbolic adjustment that clarifies legal principles without altering practice in meaningful ways.
The Pre-Jogee Position: Foresight and the Expansion of Liability
Before Jogee, joint enterprise liability was heavily influenced by foresight. In R v Powell, R v English [1999] 1 AC 1, the House of Lords held that a secondary party could be liable for offences committed by a principal if they foresaw that such offences might occur during the joint venture. Although courts stated that intention was the legal standard, in practice foresight of the risk was treated as sufficient, resulting in a substantial expansion of criminal liability. This approach was rooted in the earlier Privy Council decision in Chan Wing-Siu v The Queen [1985] AC 168, which introduced the controversial doctrine known as parasitic accessory liability. Under this framework, if a secondary party foresaw the possibility that their co-participant might commit an additional offence, they could be convicted as an accessory to that offence, even in the absence of direct intent. This doctrine operated to criminalise potential risk in a way that blurred the line between recklessness and intention, undermining principles of moral blameworthiness and fair labelling.
The practical consequences of the foresight standard were clear. Individuals could be convicted of serious offences, including murder, even if they did not directly participate in the fatal act. Cases such as R v Gnango, involving a shoot-out between rival gang members that resulted in a bystander’s death, illustrated the conceptual strain of using foresight as a proxy for intention. In Gnango, the Supreme Court upheld a murder conviction against one participant despite complex causation and liability questions, demonstrating the conceptual and doctrinal weaknesses of a foresight-based approach. Critics argued that this approach led to convictions and severe sentences based on what a defendant “might have foreseen,” rather than what they had intentionally sought to bring about. Scholars highlighted that the law risked punishing individuals without the necessary moral culpability, creating an over-expanded doctrine that prioritised public protection over fundamental principles of justice.
R v Jogee: Reasserting Intention
R v Jogee represented a clear doctrinal correction. The Supreme Court unanimously held that parasitic accessory liability was a legal error and that secondary liability should adhere to orthodox principles. A defendant must intentionally assist or encourage the commission of the principal’s offence, and foresight of a possible future offence is merely evidence from which such intention may be inferred. The Court clarified that mere presence, association with others, or anticipation that another might commit a more serious offence is insufficient for conviction. This ruling brought secondary liability back into alignment with the traditional principles of criminal law, reaffirming the centrality of individual culpability and addressing concerns regarding over-criminalisation.
Despite this clarity, the Court limited retroactive relief for past convictions. Appellants were required to demonstrate substantial injustice to succeed in having prior convictions quashed, a threshold that has proven difficult to meet. The Court justified this limitation as a balance between correcting legal error and maintaining certainty and finality in the criminal justice system. However, critics have argued that this approach insulated many convictions obtained under the flawed foresight test from meaningful review, leaving individuals to continue serving sentences that the Supreme Court itself recognised as legally erroneous.
The practical application of Jogee has highlighted the tension between legal doctrine and criminal practice. In new trials, courts have shown some reluctance to treat foresight purely as evidence. In R v Johnson and Others [2016] EWCA Crim 1613, the Court of Appeal upheld convictions where jury directions emphasised what defendants might have foreseen, interpreting those directions as supporting an inference of intent. Empirical studies suggest that jurors often revert to equating foresight with intent unless judges provide exceptionally clear and structured instructions, which in practice has proven challenging. Prosecutors continue to rely on circumstantial evidence such as association, presence at the scene, and knowledge of weapons, leaving juries to infer intention from ongoing involvement coupled with awareness of risk. As a result, the spirit of Jogee—limiting wrongful convictions based on mere foresight—has not always been realised in practice.
Post-Jogee Joint Enterprise: Theory Versus Practice
Subsequent appellate decisions have reinforced the uneven application of Jogee. Courts have found that participation combined with knowledge or awareness of potential violence can still justify an inference of intent, particularly in the context of group assaults or gang-related offending. While such inferences technically comply with the Supreme Court’s formulation, they risk blurring the doctrinal distinction between foresight as evidence and foresight as a proxy for intention. In effect, the practical outcome often mirrors the pre-Jogee scenario, with defendants convicted for crimes they may not have actively sought to encourage or facilitate.
Empirical evidence further underscores the limitations of Jogee. Reports from the Criminal Cases Review Commission indicate that only a small proportion of pre-Jogee applicants succeed in reopening convictions. The “substantial injustice” threshold has proven difficult to meet, meaning that many individuals who were convicted under the old test remain subject to sentences that the Supreme Court itself has recognised as legally erroneous. This highlights the gap between doctrinal correction and practical effect, suggesting that Jogee has had a primarily symbolic rather than transformative impact on the criminal justice system.
Systemic and Policy Criticisms
Joint enterprise has disproportionately affected children, young people, and racial minorities, particularly Black defendants. Evidence suggests that, even after Jogee, patterns of charging, conviction, and sentencing maintain similar disparities, raising questions about the fairness and equity of the system. Critics emphasise that prosecutorial practice often does not adequately scrutinise the reasonableness of inferring intent from foresight, especially in cases involving youth or cultural factors, which may influence behaviour and decision-making in ways not captured by the legal standard.
Despite Jogee’s doctrinal correction, scholars, legal commentators, and policymakers have continued to call for legislative clarification. Proposals such as the Joint Enterprise (Significant Contribution) Bill sought to define more clearly what constitutes meaningful assistance or encouragement. Complementary reforms have been suggested, including the introduction of standardised jury directions emphasising the distinction between foresight and intent, enhanced appellate oversight, dedicated post-conviction review mechanisms for pre-Jogee convictions, and targeted judicial and prosecutorial training. Such measures would help ensure that doctrinal corrections translate into practical justice and reduce the risk of disproportionate outcomes.
The ongoing reliance on circumstantial evidence, the narrow gateway for revisiting past convictions, and the persistence of structural disparities suggest that doctrinal clarity alone is insufficient to achieve meaningful reform. Convictions that rely heavily on inferred intention continue to risk overstating culpability, undermining fair labelling, and blurring the distinction between intention and recklessness. In practical terms, while the legal test has shifted, the outcomes for defendants in many cases have changed little. Without systemic reform, the correction achieved in Jogee risks remaining largely symbolic.
However, legislative reform is not without difficulty. Codification risks either over-narrowing liability in a way that undermines public protection or reproducing the same ambiguities that have characterised the common law. In this respect, complementary institutional reforms may be more effective. Standardised jury directions that clearly distinguish foresight from intention could reduce the risk that juries continue to treat foresight as determinative. Enhanced appellate scrutiny, alongside a dedicated post-conviction review mechanism for pre-Jogee cases, would further ensure that doctrinal corrections are meaningfully applied in practice.
Without such systemic reforms, Jogee risks remaining a formal restatement of principle rather than a substantive recalibration of criminal liability. The persistence of foresight-driven reasoning in post-Jogee cases indicates that doctrinal change must be supported by structural and procedural safeguards if it is to translate into practical justice.
Conclusion
R v Jogee represents an essential doctrinal correction, reaffirming that intention is required for secondary liability and replacing the flawed parasitic accessory liability doctrine with orthodox complicity principles. Nevertheless, its practical impact has been significantly constrained by restrictive retrospective relief, appellate tolerance of broad jury inferences, and the continued use of circumstantial evidence tied to foresight. Persistent systemic disparities further highlight the gap between doctrinal theory and real-world outcomes.
Until courts provide precise jury directions, rigorously apply the intention requirement, and consider legislative or procedural reform to clarify secondary liability, joint enterprise will remain a complex, contested, and practically challenging aspect of English criminal law. The doctrine has been corrected in theory, but it continues to evolve only slowly in practice, with much work remaining to ensure that the principles of Jogee fully protect defendants and maintain public confidence in the criminal justice system.
BIBLIOGRAPHY
Primary sources
Cases
Chan Wing-Siu v The Queen [1985] AC 168 (PC)
R v Gnango [2011] UKSC 59, [2012] 1 AC 827
R v Jogee [2016] UKSC 8, [2017] AC 387
R v Powell; R v English [1999] 1 AC 1 (HL)
R v Ruddock [2016] EWCA Crim 286
R v Tas (Ali) [2018] EWCA Crim 2603
Secondary sources
Books
Ormerod D and Laird K, Smith, Hogan and Ormerod’s Complete Criminal Law: Text, Cases, and Materials (9th edn, Oxford University Press 2025)
Journal articles
C Thomas, ‘The 21st Century Jury: Contempt, Bias and the Impact of Jury Service’ [2020] Criminal Law Review 1004
Carvalho H, ‘Dangerous Patterns: Joint Enterprise and the Culture of Youth Justice’ (2023) 63(3) Social & Legal Studies 452
Cornford A, ‘Beyond Fair Labelling: Offence Differentiation in Criminal Law’ (2022) 42(4) Oxford Journal of Legal Studies 985
Dargue P, ‘Joint Enterprise Murder: A Missed Opportunity?’ (2023) 95 Journal of Criminal Law 1
Hewitt L, ‘How Joint Enterprise Liability Neutered the Criminal Cases Review Commission in England’ (2024) 4(3) The Wrongful Conviction Law Review 225
Hulley S and Young T, ‘Joint Enterprise in England and Wales: Why Problems Persist Despite Legal Change’ (2024) 37(1) Current Issues in Criminal Justice 134
Krebs B, ‘Knife Fights and Gnango-Style Complicity’ (2025) 89(5–6) Journal of Criminal Law 354
Krebs B, ‘Oblique Intent, Foresight and Authorisation’ (2018) 7(2) UCL Journal of Law and Jurisprudence 1
N Hewitt, ‘The Impact of R v Jogee: An Examination of Applications to the Criminal Cases Review Commission’ (2023) University of Greenwich Legal Studies 14
Simester AP and Stark F, ‘Overwhelming Supervening Acts – A Corrective’ (2025) 84(2) Cambridge Law Journal 345
Websites
Crown Prosecution Service, ‘Joint Enterprise Pilot 2023: Data Analysis’ (29 September 2023) < Crown Prosecution Service Joint Enterprise Pilot 2023: Data Analysis | The Crown Prosecution Service> accessed 1 February 2026.
