"There is room for sitting in the middle": Clare Montgomery lectures on the updated law of joint enterprise
Barrister Clare Montgomery QC lectured Friday at the University of Hong Kong on joint enterprise in criminal law, in light of recent developments in UK and HK's highest courts.
Montgomery, an acclaimed English barrister, spoke critically of decisions on parasitic accessory liability by both the UK Supreme Court and HK Court of Final Appeal. While disapproving of the landmark Privy Council decision in Chan Wing Siu, which defined the relevant law for the past 30 years, she conceded that the 2016 UKSC decision reversing it, R v Jogee, created as many problems as it solved. She also gave guarded praise to the HKCFA decision in HKSAR v Cham Kam Shing, which came out soon after Jogee but disagreed with it.
“The law [on joint enterprise] expanded very rapidly and in an unprincipled way as a result of the decision of the Privy Council in Chan Wing Siu,” Montgomery said. “It is pretty clear that the decision back in  was not justified by the common law as it stood.”
“But that doesn’t necessarily mean the Jogee solution was correct. … There is room for sitting in the middle,” she added, pointing to fundamental problems which are still not addressed by UK or HK courts.
As for the Chan Kam Shing case, which was decided only last month, she credited it with making “some correct and insightful criticisms” on Jogee but saw its reasoning as mostly policy-oriented.
Montgomery began the hour-long lecture by outlining the contrasting positions between the UKSC and HKCFA. The issue turns on the mental elements of parasitic accessory liability (PAL), a legal rule which makes accessories to crimes liable to the same offences as the principals. This is even so when the principal commits another offence, separately, which was not what the group originally set out to do.
Traditionally, as stated in Chan Wing Siu, accessories are guilty in this way when they had foreseen the possibility that the principal would commit this other crime, even if the accessories did not intend for it to happen.
The recent Jogee decision reversed Chan Wing Siu by affirming that, instead of foresight, what was required for PAL was intention.
According to Montgomery, this was a long time coming: many critics argued that the old law on PAL “over-criminalized” accessories, leading to a large number of convictions and appeals. Those convicted also suffered longer sentences, and statistical evidence showed this disproportionately affected black and minority ethnic groups in the UK.
Despite this, UK courts had a “somewhat muted” reaction to Jogee, Montgomery said.
Firstly there was a high threshold for appeal—appellants have to show “substantial injustice”—which meant the Court of Appeal likely would not grant leave to appeal unless the appellant was certain to win. This made the effect of Jogee “prospective only,” and very few cases will be appealable as a result.
“When you consider that the driving philosophy of Jogee was to put right the law that had gone wrong, it is quite interesting that the Court of Appeal is unwilling to deliver that as a matter of practical justice for those convicted,” Montgomery said.
Jogee also raised other questions about the relationship between proving foresight and proving intention, the relevance of supervening events, and whether the law recognizes an accessory’s choice to withdraw from the criminal enterprise.
As for the Chan Kam Shing decision which stood by Chan Wing Siu, Montgomery said it “almost certainly represents a greater attempt to explain the policy considerations” behind PAL, and that the CFA had a “fair point” in those policy justifications.
She also praised the CFA’s reasoning on rejecting the Jogee approach to conditional intent.
However, she took issue with an argument accepted by the CFA: to justify PAL, it was argued that accessories are not less wicked than principals, and Lady Macbeth was used as example. Montgomery said the example was “not great” since there was “no doubt Lady Macbeth is guilty of just plain accessory liability.”
“[The CFA] made some correct and insightful criticisms of the Jogee decision, but in the end, wherever one stands between the courts, there are still a number of fundamental problems about joint enterprise; there are problems about labelling,” Montgomery said.
If PAL law remains in place, there is a counter-intuitive “gap between moral culpability and criminal responsibility.” It also leads to an “asymmetrical” outcome where “the person least involved also bears the lowest threshold before he crosses into criminality.”
From an evidentiary standpoint, in contradiction with the Lady Macbeth example, Montgomery argued that, “The reality is, in unplanned group violence, the suggestion that there was in fact some joint purpose or joint enterprise is often unrealistic.”
Accessories who hang back are often “too weak” or “too in thrall” of the aggressive principals to break away, and most people who got caught up in PAL charges in the UK are “the weak and the vulnerable.”
The lecture ended on a note of relative uncertainty. While Montgomery regarded the law as essentially settled in Australia and Hong Kong, there was still room for development in the UK.
“There is room for sitting in the middle and waiting to see what the Court of Appeal in the UK is going to do,” she said. “You can be sure of one thing: the rule itself is neither clearly understood nor capable of being [clearly defined] at this time.”
Montgomery specializes in criminal, regulatory, and fraud law, and is no stranger to Hong Kong. She defended former Sun Hung Kai Properties joint-chairman Thomas Kwok Ping-kwong in 2014, and is representing former HK Chief Executive Donald Tsang in his ongoing corruption trial.
The lecture was well attended by students and high-profile members of the legal profession, including barrister Margaret Ng.
Addressing the crowd at the start of her lecture, Montgomery noted, “Most of my work is done in the Court of Appeal, so I’m really not used to a live audience.”
This event was also covered live on Twitter @holmeschan_