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Elaine Freer
Elaine Freer

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Welcome to the 5PB Blog where you can find comments and thoughts on current legal topics.

Redefining Joint Enterprise

On 18th February 2016, the Supreme Court handed down judgment in Jogee [2016] UKSC 8 (conjoined appeal with Ruddock in the Privy Council [2016] UKPC 7). In doing so they altered the law on joint enterprise as it had been understood for 30 years.

The facts, briefly stated, are that Mr Jogee (the appellant – ‘A’) allegedly encouraged a friend (D1) to stab the victim. A and D1 knew the victim’s partner, and had been at her house earlier in the evening in question. During that time they had taken drugs, and D1 had talked hypothetically about committing various crimes. A and D1 left the house, but later returned. V had returned to the address by this time. D1 entered the house uninvited, and V came downstairs to challenge him. V returned back upstairs to put on some clothes, during which time D1 fetched a knife from the kitchen. V came back downstairs and challenged him again. D1 was inside the house, and A was outside. According to a witness, A was ‘egging D1 on’. V tried to calm the situation and get them out of the house when D1 stabbed him.

Both were convicted of murder on the joint enterprise basis. D1 was sentenced to life with a 22 year minimum term, and the appellant to life with a 20 year minimum term. The appellant appealed to the Court of Appeal on 4 grounds, one of which was abandoned at the full hearing. The three remaining grounds were;

(i) That a submission of no case to answer was wrongly rejected as there was no evidence upon which a properly directed jury could infer encouragement of joint enterprise murder.

(ii) The learned Judge directed the jury that they could only convict this Appellant as a secondary party if he foresaw that a knife 'might' be used. In this case, such a direction was insufficiently precise and invited assumption/speculation.

(iii) Where 'encouragement' to joint enterprise is concerned, a jury should be directed not to convict unless they are sure that the defendant knew there was a weapon or use of a fatal weapon was a 'real probability'. The direction should have been 'realised D1 would' use a weapon, not 'realised D1 might' use a weapon. 

The Court of Appeal elucidated these grounds as all reducible to one issue. This was that the appellant could only be convicted of murder if it were shown that he knew that D1 was in possession of the knife from the kitchen and appreciated that D1 might use it to inflict grievous bodily harm or worse. It was argued on behalf of the appellant that there was no evidence to demonstrate such knowledge, and the judge directed the jury in a manner inconsistent with the proposition that proof of knowledge of D1's possession of the knife was required. The appeal against conviction was rejected. The appeal against sentence was allowed in part, with the minimum period to serve being reduced from 20 to 18 years.

In the Supreme Court, the certified question was ‘Whether the prosecution must prove that a secondary offender, who encouraged the primary offender to commit some harm, foresaw the primary offender's acquisition and use of a weapon for murder as "probable" rather than "possible" in order to establish joint enterprise.’

5 Justices heard the appeal of Jogee in the Supreme Court with that of Mr Ruddock in the Privy Council. In a unanimous judgment, the Court held that the murder convictions of both were to be quashed.

The route that the Court took to the finding of unsafety of these convictions was to declare that the principle in Chan Wing-Siu [1985] AC 168 was wrong. In Chan Wing Siu, the Privy Council had held that a defendant would be guilty when the fatal act was performed by another, but the defendant foresaw as a possible incident of the common unlawful enterprise that an act of that type might occur.

In Jogee the direction had thus been that Jogee would be guilty of murder if he had foreseen that D1 might kill V with a knife during an altercation. On the basis of what had happened earlier in the evening, and the backstory between the defendants and the victim, it was argued that it was foreseeable that D1 might do this. There was no ‘fundamental departure’ as defined in cases such as a Rahman [2008] UKHL 45. In convicting A of murder, this was clearly accepted by the jury.

The Supreme Court surveyed the case law on such cases, and ultimately held that a return to the positions adopted in cases since Chan Wing-Siu, but largely overlooked or misunderstood, was desirable. In Wesley Smith [1963] 1 WLR 1200, it was held that a party to an unlawful attack that results in death will be guilty of manslaughter, but can only be guilty of murder if he intends the death of the victim. There can be different levels of foresight of consequences between parties involved, and it is this which will dictate their culpability.

Similarly in and Reid (1976) 62 Cr App R 109, if fatal injury is not intended by those who do not strike the fatal blow, then they must be acquitted of murder. But if they have set out on an enterprise which envisaged some degree of violence, they will be guilty of manslaughter, reflecting their differing mental states.

Intention as to serious harm or death was held necessary in Wesley Smith and Reid, and it is acknowledged by Lord Steyn in Powell and English [1999] 1 AC 1 (at p.13) that this is not the same as foresight. The Supreme Court in Jogee thus takes the law back to the position in Wesley Smith and Reid. Foresight of what D1 might do is not intention - therefore a D2 who foresees an occurrence as part of a joint enterprise does not necessarily intend it. Without intention there can be no murder conviction. If D2 does not so intend, he will be guilty of manslaughter, even where D1, whom he joined in the joint enterprise, is guilty of murder. The Supreme Court were at pains to point out that joint enterprise is not guilt by association [78]. This judgment supports that by putting the focus firmly back onto the mens rea of each individual party by assessing their culpability separately [84].

This is a key decision. It not only clarifies the position on mens rea for joint enterprise, but it does so in a way that is contrary to the law that has been applied for 30 years. A number of defendants have been convicted of murder under the law as it stood following Chan Wing Siu and expanded upon in Powell and English. The court makes it clear that this decision will not permit en masse appeals where joint enterprise cases were decided under the law as it stood following Chan Wing Siu and, later, Powell and English [100]. Media reports suggesting that ‘hundreds of murderers will walk free’ are consequently misinformed. There will doubtless be some appeals. Where these are from recently-decided cases and ‘in time’, the usual considerations will apply when it is being considered whether leave to appeal is granted. Where defendants convicted under joint enterprise longer ago wish to appeal they will have to persuade the Court of Appeal to grant leave out of time. The Supreme Court made it clear that in these circumstances leave will only be granted if "substantial injustice" can be demonstrated. The Court stated that leave will not be granted simply because the law applied has now been declared to have been mistaken. Furthermore, refusal of leave will not be limited to cases where the defendant could, under the decision in Jogee, have been charged with a different offence [100].

For many defendants convicted under joint enterprise, ‘substantial injustice’ will be a high hurdle. In practice, it is suggested that one matter impacting on the likelihood of leave being granted will be their proximity to, and degree of involvement in, the fatal incident. Where an appellant was linked in a more tangential manner that threshold may be more easily met. Where leave is granted, the usual test for the unsafety of a conviction will be applied. If a conviction is found to be unsafe, the defendant is likely to have their murder conviction substituted for manslaughter, or a re-trial ordered. 

By Elaine Freer who is currently undergoing pupillage at 5pb.

Posted by Elaine Freer on 22 February 2016 at 16:03