This morning the Supreme Court handed down judgment in R v Jogee; Ruddock v The Queen  UKSC 8 , and everyone’s mighty excited. This case – dealing with the principles of what is (lazily) referred to in the media as “joint enterprise” – is leading the lunchtime news bulletins and will probably fill up much of the evening schedules as well.
The Supreme Court ruled, in short, that one of the ways in which courts have for 30 years directed juries in cases involving “accessories” or “secondary parties” to an offence (usually in cases of murder) has been wrong. And the Supremes did not hold back. This was a thorough academic spanking of an approach approved and applied since 1985 in Chan Wing- Siu v The Queen  AC 168.
So it’s of interest to lawyers, but also, for various reasons, has captured wider attention. And people are getting really quite giddy about what this case means. People who, it appears, haven’t bothered to read the judgment or acquaint themselves with either the facts or the law. Which, frankly, is spoiling my day. So, with my wig off and my debunking hat on, in the spirit of public service, allow me to, if I may, lay some truth on yo:
- So what’s this whole “joint enterprise” thing?
Joint enterprise is a nice, slightly lazy umbrella term that sort-of encompasses a very narrow strand of what lawyers call “secondary liability” – or, to be even more precise, parasitic accessory liability.
Put simply, this case concerns the situation where a “principal” (A) commits an offence – let’s say murder by stabbing – and an “accessory” or “secondary party” (B) is charged with murder for having “assisted or encouraged” the act, even though they weren’t the person who brandished the weapon. In law, both could be charged with murder.
3. Would they be found guilty?
For A, it’s simple. Yes, if the jury were sure that (a) A killed the victim, and (B) he did so intending either to kill or cause really serious harm.
4. Wait – so for murder you don’t actually need to intend to kill someone?
That’s right. Fun fact for you.
5. Gosh. I see. Well continue, beautiful sage.
Thank you. For B the situation is trickier. In short, the position from 1985 until today has been that if B assisted or encouraged, and when he did he foresaw that A might possibly be intending to cause serious harm or kill, B would be guilty of murder too.
6. Right – so for A to be guilty he would have had to intend to cause serious harm/death, but for B to be guilty he only needed to have foreseen the possibility that A would act in that way? That seems harsh.
Well quite. That’s what the Supreme Court said today. They politely destroyed the reasoning that had led the Privy Council and House of Lords into this peculiar position in various cases since 1985, and restated the law as being the pre-1985 position. Namely, that B has to either intend to cause serious harm/death, or to intend to assist/encourage A to inflict serious harm/death. If those aren’t present, B is not guilty of murder.
7. So what’s the practical effect?
This decision is most likely to affect those horrid gang attack murders where people, often popularly described as “on the periphery” of an incident, have been convicted of murder following a trial where the judge directed the jury according to the now-disapproved legal test.
7. So this means that there will be loads of people having their convictions overturned?
Probably not. This is where people are getting ahead of themselves. Many defendants convicted of murder following a jury direction under the “old” law would still be convicted under the new. And for those who wouldn’t be, they may, even if they are not guilty of murder, be guilty of manslaughter.
Yes. If you join in with violence, not intending to cause serious harm or death, but death occurs, you will be guilty of manslaughter. Just as with, in fact, the case of Mr Jogee. His barrister had tried to argue that he should be acquitted of everything, which the Supreme Court slapped down as “hopeless”. They said he would either be convicted of manslaughter instead, or would have a retrial for murder, and will decide having received written submissions from the prosecution and defence as to the best course.
9. So carry on – why won’t old convictions be overturned?
Because, as the Supreme Court helpfully sets out at para 100, these applications to appeal conviction will be “out of time” – such applications have to be sent to the Court of Appeal within 28 days of conviction.
10. Can the Court of Appeal not extend this 28-day period?
It can, but, again para 100, there is established authority that the mere fact that the old law has subsequently been held to be wrong does not of itself mean that the Court of Appeal has to extend time. The defendant would have to establish that there is “a substantial injustice” that means the Court of Appeal should extend the time limit and agree to hear the appeal.
11. Would there not be a substantial injustice if someone has been convicted of murder when they shouldn’t have been?
Not necessarily. Particularly not, in my view, where they would have been convicted of at least manslaughter anyway, and where, as with Jogee, there was a decent case of murder regardless of the judge’s direction. The case law is very strict as to what constitutes a “substantial injustice”, and the Court of Appeal is historically reluctant to extend time limits in “change of law” cases (as they are known).
12. But what about the people who did nothing – those people I read about on the websites who were simply present at the scene of a murder and got convicted? What about those poor souls?
This is my bugbear, young whippersnapper. Para 77 of the judgment makes clear:
“[Joint Enterprise] is understood (erroneously) by some to be a form of guilt by association or simple presence or without more.”
In other words, if a person were merely present, they would not have been convicted under either the old or the restated law. This is a popular misconception circulated by supporters of those convicted. The jury will have been sure that those convicted were assisting or encouraging the violence of the principal, even if they may have been misdirected as to issue of intent. Such people are likely to be at least guilty of manslaughter, and possibly still murder. There, as the court tannoys for me, endeth the lesson.
UPDATE: 19/02/16 – Today several newspapers have excelled themselves in their crass and legally illiterate coverage of Jogee, claiming, among other things, that the killers of Stephen Lawrence could soon be walking free. This is, in the words of the Supreme Court, palpable testes of the hairiest order, for the reasons set out above. But, for the benefit of all, a brief postscript:
(a) Not all murders prosecuted as “joint enterprises” invoke the principles in this judgment – most joint enterprises are straightforward cases with multiple principals (where there is an agreed common purpose between the participants) rather than more complicated cases involving secondary parties and liability (as in Jogee);
(b) Stephen Lawrence’s killers have already applied for leave to appeal to the Court of Appeal and have been refused. The only way their case could go back to the CoA is if it was to be referred by the Criminal Cases Review Commission. The CCRC can only refer a case if there is a “real possibility that the conviction…would not be upheld”.
(c) Due to any application for leave to appeal being “out of time” (see above), the CCRC has to apply the same test that the Court of Appeal would in a “change of law” case – I.e. is there a substantial injustice? As above, this is a very strict test, and is in my view unlikely to be met in many cases where it is plain from the facts and verdicts that there is some criminal liability -e.g. Where manslaughter is made out on any reading.
(d) Even if the case did make its way to the Court of Appeal, and the CoA granted an extension of time and went on to rule that the murder conviction was unsafe (both of which I consider very unlikely), noone is walking free. There will either be a substitution of a manslaughter conviction, with a hefty sentence attached, or a retrial, pending which the defendants will almost certainly be remanded in custody.
I repeat – no one is walking free as a result of yesterday’s judgment. No matter how hysterically the media shrieks.