The Joint Enterprise Law, which has allowed people to be convicted of murder even if they did not inflict the fatal blow, has been wrongly interpreted for more than 30 years, the Supreme Court has ruled.
Dr Mark Dsouza, from the University’s School of Law and Social Justice, discusses the possible impact of this ruling for the criminal justice system:
“The Supreme Court’s judgment in the case of R v Jogee [2016] UKSC 8 has dramatically changed the law relating to joint enterprise liability. It used to be that a person who signed up to one crime – Crime A – and foresaw that another crime – Crime B – might be committed by someone else in the course of Crime A, was guilty of Crime B as well. This meant that a burglar who told his partner in crime that she had better not use her gun during the burglary would be guilty of murder when said partner shot the householder dead, on the basis that he obviously foresaw that the gun might be used. That was the rule set out by the Privy Council in a case called Chan Wing-Siu v The Queen [1985] AC 168. That rule is now a thing of the past.
“Yesterday (Thursday, 18 February), after an extensive review of the doctrinal history of the joint enterprise rule, the Supreme Court unanimously ruled that the Privy Council had made a wrong turn in 1984 due to errors in analysing previous cases. It held that the Privy Council had wrongly equated the contemplation of an offence (i.e. foresight) with the authorisation of (i.e. intention to assist or encourage) the offence, and that the policy arguments the Privy Council had used to support its ruling were flawed. The Supreme Court therefore concluded that the law ought to have remained as it was prior to Chan Wing-Siu. Despite the fact that the Chan Wing-Siu rule was law for over 30 years, and was applied repeatedly during that period, the Supreme Court ruled that since the error had introduced several difficulties and anomalies in the operation of the law, it ought to be corrected. Moreover, since the error was a result of a misstep by the courts, it was within the competence of the courts to rectify it. It then proceeded to do so.
“The rule on joint enterprise liability, as clarified in Jogee, is this: “a person who signs up to Crime A foreseeing that another party to this crime might commit a separate Crime B as an incident of Crime A is not automatically an accessory to Crime B. To be an accessory to Crime B, the defendant must have intended to assist or encourage Crime B. Foresight of Crime B coupled with a willingness to continue to be associated with Crime A is evidence from which a jury may infer an intention to assist or encourage Crime B, but it is not conclusive proof.” So while many defendants convicted under the Chan Wing-Siu version of the joint enterprise rule would continue to be guilty under the clarified rule, some may not be. A jury may, depending on the facts, not be convinced that the defendant intended to assist or encourage Crime B. So for instance, given his obvious unhappiness at the prospect of the use of the gun, our hypothetical burglar from before may well not be convicted of murder under the clarified joint enterprise rule.
“This judgment will probably give rise to some appeals, but the Supreme Court was at pains to state that all cases decided under the Chan Wing-Siu rule would not automatically be suspect. For most such cases, the time limit for an appeal will have elapsed. Once that has happened, exceptional leave to appeal must be granted by the Court of Appeal. Since even under the restated law, foresight of Crime B is evidence of the authorisation of Crime B, it is likely that many cases would have been decided the same way under either version of the joint enterprise rule.
“Since exceptional leave is only granted when it is clear that the defendant has suffered substantial injustice, it is unlikely to be granted in such cases. As far as the defendant in this case is concerned, he will certainly not go scot free – the Supreme Court described an argument to that effect as ‘hopeless’. He will be convicted of at least manslaughter (which also carries a discretionary life sentence), if not murder (on retrial).
“The judgment in Jogee is a welcome development. It corrects a mistake that has long resulted in anomalous and intuitively discordant convictions. By this judgment, the Supreme Court has brought the law of joint enterprise liability into line with principles of the common law underpinning other forms of criminal liability. On September 1, 2016, the University of Liverpool is hosting a conference to discuss the implications of this judgment at its London campus, and leading academics, members of the judiciary, and practitioners, are expected to participate.”
