A Right Turn in the English Criminal Law: No More Anomalous Forms of Complicity. An Important Lesson from the UK Supreme Court

For more than thirty years the English law established that whenever two defendants had a common intention to commit a particular crime, but one of them committed another crime, the other party was criminally liable for the acts by the primary offender if he had foreseen the possibility that he might have acted as he did.
The principle was based on the equation between foresight and intent. The recent decision of the UK Supreme Court in the joint cases Jogee and Ruddock changes the law, by restating the older principle according to which the mental element required of a secondary party is an intention to assist or encourage the principal to commit the crime. Foresight is not equivalent to authorisation. This decision has the effect of bringing the mental element of the secondary party back into broad parity with what is required of the principal and of narrowing the scope of criminal law. It can also stimulate Italian lawyers and law-makers to start a thorough rethinking of the law of the much-debated concorso anomalo.