Why the Supreme Court is wrong on conditional intention


John Child

Within the landmark case of Jogee [2016] UKSC 8, the Supreme Court has fundamentally restructured the law on secondary liability (ie, the criminality of those who aid, abet, counsel or procure the crimes of another). Correcting a legal ‘wrong turn’ from some thirty years previous, tre headlines in relation to the current law: (1) that so-called joint enterprise (or parasitic liability) no longer represents a separate route to complicity; and (2) that the mens rea (or mental element) of complicity should be narrowed to require intention (including conditional intention) from the defendant. The second of these, which is my focus in this post, is presented as an essential clarification to avoid the over-extension of complicity liability, and to avoid potential for ‘the striking anomaly of a lower mental threshold for guilt in the case of the accessory than in the case of the principal’ [84]. By definition, the role of an accessory will always be categorically different from that of a principal: the latter commits the principal offence directly (eg, murder by killing the victim), whereas the accessory’s contribution is indirect (eg, assisting the principal by supplying a weapon). With this in mind, whatever mental state is required of the principal offender, it is logical to limit the extension of liability to the accessory/defendant by requiring intention, correcting the law pre-Jogee that had allowed for liability where a defendant merely foresaw that the principal might offend.

Despite the clarity of the headlines in Jogee, however, and despite the explicit break from the last thirty years of jurisprudence, sections of the judgment seeking to clarify the law moving forward are much more problematic, and seem hesitant and conflicted in their application of the new intention standard. This should be no surprise. Complicity pre-Jogee had become a major route to liability for some of the most serious offences, particularly murder, and so although the court are clearly convinced of the need to restrain its application, they are also sensibly conscious of what the impacts of narrowing the law might be: impacts in terms of appeals from previous convictions (from those convicted following the legal wrong turn), as well as impacts in blunting a popular and powerful prosecutorial weapon. It is a policy conflict within the judgment that leads the court into two significant errors in their treatment of intention. First, a lack of clarity as to what a defendant must intend for complicity liability; and second, a misinterpretation of conditional intention. In what follows, I summarise the first, before focusing on the second.


What must an accessory intend?

There are two limbs to the mens rea of complicity: the first is the defendant’s mens rea as to the effects of her own conduct, and the second is the defendant’s mens rea as to the principal’s future offence. On the first of these, Jogee is clear that a defendant must intend her conduct to assist or encourage the principal’s offence. This provides useful confirmation following some inconsistency in previous case law, and brings complicity into line with inchoate assisting or encouraging (Serious Crime Act 2007, s44). So far so good, perhaps, but subject to the court’s definition of intention discussed in the next sub-section.

Despite relative clarity on the first limb, however, the court provides little guidance on what mens rea is required of a defendant as to the principal’s future offence. The omission is surprising, as it was this second limb that was central to debate within previous cases and reviews, and it was confusion here within the previous law (culminating in the identification of a foresight standard) that led the court in Jogee to identify a wrong turn to begin with. At this point we might accuse the Supreme Court of conflating the two limbs of mens rea in a manner that is not at all uncommon among both courts and commentators, but this is not strictly the case. Rather, the court in Jogee provided a few fleeting references to mens rea as to the principal’s offence – stating that the defendant must intend the principal to act with mens rea [10], and at other points that the defendant must know the elements of the principal’s offence [9] – but such references are not fully worked through, and are anyway inconsistent with examples of complicity provided elsewhere in the judgment. The danger, of course, is that without an established requirement that the defendant must intend the principal’s offence, or at least have knowledge of it, the courts will be encouraged to interpret the law (as previously) to require wider standards of mens rea such as belief, or even simple foresight. Despite the headlines of intention within Jogee therefore, and despite the apparent aim of requiring a parity of culpability between defendant and principal, the reality is a vulnerable state of legal uncertainty.


Misinterpretation of conditional intention

Having narrowed complicity to require intention, at least to some extent, the Supreme Court go on to explain the application of this standard within a series of hypotheticals [90-95]. It is here, particularly in the court’s treatment of conditional intention, that the policy conflict introduced above becomes most apparent, and (I contend) most damaging to the court’s reasoning. For the court,


‘… it will … often be necessary to draw the jury’s attention to the fact that the intention to assist, and indeed the intention that the crime should be committed, may be conditional.’ [92]


Conditional intention remains a problematic and contested concept, but it is possible to identify rules for its consistent and coherent application (J.J. Child, ‘Understanding ulterior mens rea: future conduct intention is conditional intention’ (2017) Cambridge Law Journal 311). To do so, conditional intention should be defined as synonymous with future conduct intention, with a defendant’s decision at t1 to perform certain conduct at t2. Thus, for example, where a defendant decides to commit an offence if certain conditions arise (eg, a plan to assault V if she fails to pay-up), her conditional intention can be interpreted as a valid intention to commit assault, just as it would be if no conditions were explicitly considered. This definition is central to our application of all offences where a defendant must intend future conduct, including, for example, incomplete attempts, section 9(1)(a) burglaries, certain conspiracies, and so on. However, crucially, this interpretation will never apply within complicity: within complicity a defendant’s intention to assist or encourage relates to present conduct, and her intention as to the principal offence relates to the conduct of another. Application of conditional intention here would represent a significant, and I will argue inappropriate, extension of the law.

In order to understand the court’s misuse of conditional intention in Jogee, two groups of cases/hypotheticals should be distinguished. In the first, our defendant intends to assist or encourage a principal to commit Crime A, and Crime B if necessary.


‘The group of young men which faces down a rival group may hope that the rivals will slink away, but it may well be a perfectly proper inference that all were intending that if resistance were to be met, grievous bodily harm at least should be done.’ [92]


I agree that intention may be properly inferred here, but not conditional intention. We intend a result (x) where we act because we believe that doing so might cause x, or if we recognise that x is a virtually certain consequence. In this example, we are assuming that the defendant has acted to assist and encourage other members of the gang, and has done so in order to influence those other members both to confront the opposing gang and to cause serious harm if necessary. In this manner, both parts of the defendant’s foresight are motivating their present conduct, and both parts are therefore standardly intended. Our defendant is not conditioning his current conduct (ie, it is being performed), and he is not conditioning his future conduct (ie, his future conduct is irrelevant here), and so although intention should be found, talk of conditional intention is misconceived.

Although the first group of cases/hypotheticals present a mislabelling of intention, the second group is considerably more dangerous. In this group, conditional intention is identified where a defendant intends to assist or encourage Crime A, foreseeing that the principal will or may perform an unwanted Crime B if necessary. This approach is not explicitly endorsed within Jogee, but it is arguably implied from the court’s examples involving escalating violence, and certainly left open from the use of vague language such as ‘scope of the venture’ and ‘tacit agreement’. Indeed, the potential for conditional intention to apply to Crime B in this kind of example has been endorsed in case law post-Jogee, including Johnson and Anwar, as well as some academic commentary. The reason this is dangerous is because the potential assistance or encouragement of Crime B, and the principal committing Crime B, are not motivating factors in the defendant’s conduct, and are not foreseen as a virtually certain consequence either. Therefore, simply put, the courts are wrong to label the defendant’s mental state as a form of intention (conditional or otherwise), and in doing so they are collapsing the concept of intention into recklessness.

In the context of complicity, and cases previously analysed within joint enterprise, the result will be business as usual: applying a pre-Jogee foresight standard, simply with a new label. As stated clearly in Anwar, ‘… the same facts which would have been used to support the inference of mens rea before the decision in Jogee will equally be used now’ [22]. So too within more standard complicity cases, where a wide net of liability will also be maintained. Indeed, this is probably the only way to reconcile one of the courts more problematic examples (where they would find liability):


‘D2 supplies a weapon to D1, who has no lawful purpose in having it, intending to help D1 by giving him the means to commit a crime…, but having no further interest in what he does, or indeed whether he uses it at all.’ [90] (Emphasis added).


In cases of this kind, the defendant can only be said to ‘intend’ the principal offence if we read down intention into a form of recklessness. The headline narrowing of complicity within Jogee becomes illusionary.

Our problems do not end here, however. As a mens rea term of general application, the view of conditional intention set out in Jogee has the potential to impact other areas of liability as well. To provide just one example: within the inchoate offences of attempts and conspiracy, the concept of conditional intention has occasionally been used to try and introduce a recklessness standard into the law. Using this approach, sexual touching without knowledge of consent can be interpreted as a conditional intention to assault; and handling unknown property can become a conditional intention to launder goods. However, crucially, such usage has been consistently resisted by both courts and commentators. The interpretation of conditional intention in Jogee would allow intention to be found in all such cases, significantly expanding the boundaries of criminal liability.

It is concluded that the concept of conditional intention has no appropriate role to play when analysing intention for complicity liability, either as to the effects of the defendant’s conduct, or as to the potential conduct of the principal. Rather, within both limbs of mens rea, we must only inquire whether the result motivated the defendant’s present conduct or whether she foresaw it as a virtually certain consequence of that conduct. This approach will significantly narrow the law of complicity, but is the inevitable outcome of applying a genuine intention standard. To the extent that such narrowing is not desired, and parity of culpability between accessory and principal is not desired, then a lower standard of men rea should be explicitly applied.

John Child is a Senior Lecturer at the University of Sussex.