Kinder’s casebook: Landmark ruling reinterprets law of joint enterprise

Tabby Kinder
Tabby Kinder

The Supreme Court handed down a dramatic ruling on Thursday changing “the fundamentals of criminal liability” in a “twice in a decade” decision.

Thursday’s unanimous decision set down that the courts’ previous interpretation of the law on joint enterprise has been wrongly interpreted for 30 years. You can read the judgment here.

Lawyer 2B talked to QEB Hollis Whiteman silk and joint enterprise expert Edward Brown QC about the “radical change in the law” that will mean prosecutors in criminal trials have a “much heavier burden” in future cases.

The case

The dual case R v Jogee and Ruddock v The Queen (Jamaica) has fundamentally changed British law on joint enterprise.

Joint enterprise means a person who assists or encourages the committing of a crime can be held legally responsible for the crime as the person who actually carried it out.

Until today, someone could be convicted of murder if he merely “foresaw” that the person they were with was “possibly” intent on committing murder or inflicting serious harm.

The Supreme Court ruled it was not right that a person could be convicted of murder and subsequently sentenced to life imprisonment (the only sentence for those convicted of murder) if they foresaw the murder could take place but did not deliver the fatal blow.

As a result, both Jogee and Ruddock have had their murder convictions overturned, though Jogee will be held in jail pending a decision on whether his murder conviction should be replaced by a conviction of manslaughter.

Ameen Jogee was convicted of murder in 2012 after his friend, Mohammed Hirsi, stabbed and killed an ex-police officer. Jogee appealed the decision on the ground that him foreseeing the mere possibility that Hersi would kill the victim should not have been enough to convict him of murder.

Thursday’s decision will also trigger a wave of applications to the Court of Appeal by those convicted of any crime where there was a principal and secondary party – though will not necessarily lead to all convictions of serious crimes or murder under joint enterprise being overturned.

Why is this judgment important?

Edward Brown QC: It has always been the case that a person who intentionally assists another in a joint crime will be as guilty as the person who physically commits that crime. After the Chan Wing-Siu ruling in 1985, juries have since been directed that if a secondary party foresaw that the principal party might use a knife, for example, with intent to cause harm or murder, then they are guilty of murder as well.

In the last two years there has been public concern that it was too easy for the prosecution to get a secondary party convicted of murder, with all of consequences, when typically these people are quite young.

The Supreme Court had a look at it and decided the 1985 case was incorrectly delivered and the judgment was wrong. They’re effectively reversing the law to the correct law as it was prior to 1985.

This is a radical change and a very rare situation going to the fundamentals of criminal liability. You get one of these maybe twice a decade. There are very many cases of joint enterprise in the courts ever day.

Why has this happened now?

Brown: There has been an increase in public concern at the conviction of particularly young secondary parties, young gang members for example, who have been convicted of murder when they didn’t cause the death directly. There’s been more debate about whether it’s right to label a person a murderer when what they’re doing is foreseeing their mate might use the knife, which is quite a low test for murder.

Both camps on this debate have been very polarised and each side has a strong reason to be: one’s son has been murdered and another’s son is serving 15 years imprisonment at 16 years old. The public reaction to the issue has got noisier in recent years after Parliamentary hearings and journalist investigations on the subject.

What does the judgment mean for the legal world?

Brown: The appeals by these two men have been used by the Supreme Court to address the problem and change the law. Though they might well have kept the law as it was.

There will now be very many cases of applications to appeal against convictions out of time. They won’t be confined to murder cases, but to all crime where there was a secondary party, so robberies, sexual crimes, etc.

That doesn’t mean every case of so-called joint enterprise will be overturned, the justices have been pretty strong on that, particularly because the Court of Appeal on accepts cases out of time when there has been a serious injustice to a party.

From today it doesn’t automatically become a crime if you prove foresight by the secondary party. It’s been found too low a test to be found guilty of a serious crime, but it is still available for a jury to use in deciding whether or not the party intended to encourage or assist the other to do it.

What happens next?

Brown: The prosecution in a criminal trial now has a much steeper hurdle to overcome as they no longer just have to prove the secondary party in a crime foresaw the crime could take place.

It will be very interesting to see how the Court of Appeal deal with the first few applications on a conviction of joint enterprise. I expect they will want to deal with the first few pretty quickly as there will be a flurry of activity over the next 12 months with a lot of people writing to the court applying to have convictions overturned.

The lawyers

For the appellant, Jogee

36 Bedford Row’s Felicity Gerry QC and Catarina Sjölin, and One Crown Office Row’s Adam Wagner and Diarmuid Laffan, instructed by Defence Law

For the respondent, The Queen

9-12 Bell Yard’s John McGuinness QC and 6KBW’s Duncan Atkinson, instructed by Crown Prosecution Service Appeals and Review Unit

For the appellant, Ruddock

Matrix Chambers’ Julian Knowles QC and Garden Court Chambers’ James Mehigan, instructed by Dorsey & Whitney

For the respondent, The Queen

3 Hare Court’s Howard Stevens QC and Rowan Pennington-Benton, instructed by Charles Russell Speechlys

Intervener, Just for Kids Law

Doughty Street Chambers’ Francis FitzGibbon QC, Daniella Waddoup and Caolifhionn Gallagher, and Garden Court Chambers’ Joanne Cecil, instructed by Just for Kids Law

Intervener, Joint Enterprise Not Guilty by Association

Doughty Street Chambers’ Timothy Moloney QC and Jude Bunting, instructed by ITN Solicitors