by Nicola Campbell
There are few things in the legal sphere that can cause unrest and eagerness amongst lawyers and academics; except perhaps a decisive ruling by the Supreme Court which could have an enormous impact on a particular area of the law. On Thursday morning such a ruling occurred;
R v Jogee (Appellant)  UKSC 8 – The UK Supreme Court unanimously agreed to set aside the convictions of two men under joint enterprise, stating that the case law on this area of the law had unfortunately taken a “wrong turn” during the latter half of the 20th century. Thankfully this “wrong turn” has now been abated and once again the law of joint enterprise has returned to her original and rightful path.
The landmark case will have significant and far reaching results; criminal law syllabuses throughout England and Wales for current and future students will be amended, a once extremely convoluted area of the law has finally been clarified for lawyers and academics and, perhaps more importantly, it has brought hope to the countless individuals who have been convicted under the law of joint enterprise during its “wrong turn”. Volunteer groups such as JENGbA (Joint enterprise – not guilty by association) has led a crusade against this legal doctrine. But it was the outcome of October’s hearing that highlighted the miscarriages of justice that the law can and has brought. Unsurprisingly the judgment accumulated over 3000 online views – making it one of the most watched judgments of 2015. Naturally, the judgment has made the headlines of many national newspaper; but for the entirely wrong reasons. Instead of praising our judiciary for finally correcting the last 30 years of wrongly interpreted law, the press has gotten the wrong end of the stick, like they so often do, causing a lot of incorrect information to float around.
At the start of Lord Hughes and Lord Toulson’s judgment, they gave a brief submission on the current law of joint enterprise:
“If two people set out to commit an offence (crime A), and in the course of that joint enterprise one of them (D1) commits another offence (crime B), the second person (D2) is guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as he did.”
Justices Lord Neuberger, Lady Hale, Lord Hughes, Lord Toulson and Lord Thomas collectively agreed that the current test that has been utilised for the past three decades is no longer satisfactory and a change was crucial. The new test removed the notion of mere foresight of one’s actions and has been replaced with actual intent. Thus placing the fundamental concept of mens rea back into this area of law once again, a concept that should never have been eradicated in the first place. Lord Neuberger commented that it was a narrow distinction between foresight and intent, but confirmed that it was nonetheless an important one.
He went on to explain the the court was “very cautious” to depart from one of its previous rulings. But was “satisfied” that the House of Lords took a “wrong turn” in their 1984 judgment of Chan Wing-Sui, an appeal from Hong Kong. He stated that it was thier duty to “put the law right”. The correct position is now this: the secondary party’s foresight of what the principal offender might do is evidence from which the jury might infer shared criminal intent, but it’s not proof of guilt in itself. Therefore no, our judiciary has not allowed murderers to be released from prison! And no, our judiciary has not legalised murder! For anyone who conjures up such absurd thoughts I urge you to read the full judgement that is on the Supreme Court’s website (jcpc.uk/cases/docs/jcpc-2015-0020-judgment.pdf).
The justices are not the only ones deserving of our appreciation and respect. There is no denying the real legal hero, or heroine to be more accurate, of the day was Felicity Gerry QC. Her submissions were flawlessly presented, resulting in a well deserved verdict. Her analysis of the current law of joint enterprise was brutal and truthful, commenting that the current law was in the state of a dog’s breakfast bringing inconsistencies and injustices into our court rooms. She argued that the mental element of the law is too heavily weighted against defendants, meaning the guilt or innocence of the defendant relied on his or her foresight of the offence, rather than his or her intent.
The judgment is entirely positive and perhaps now we will see an end to “lazy” policing and prosecution. What was once used as a weapon to tackle gang culture has now been decommissioned, thankfully. It is with hopeful hearts that by reverting back to an intent-based test we hope to see the police and prosecution make a more thorough investigation before imposing criminal liability on those undeserving of such a title, ultimately preventing further miscarriages of justices.
Although the Justices very clearly stressed at para 100 of their judgement that there will be no grounds for automatic appeals and there must be exceptional circumstances for leave to the Court of Appeal. It is till disconcerting that the courts continue to use the floodgate argument when changing an area of the law to ensure that no unnecessary burden falls on the Court of Appeal. But surely attempting to overturn a wrongful conviction cannot be considered as an unnecessary burden on the court? An individual’s right to appeal should not be limited by the fact the judge believed he was correctly interpreting the law at the time despite the fact he was not. The judiciary should take responsibility for the wrong they created, and ensure any injustice that was the result of that wrong be ratified.
However, there is no doubt the Court of Appeal and CCRC will still have to be prepared for the influx of cases from individuals who are now capable of setting aside their convictions. Innocence projects throughout England and Wales will be grateful of the Court’s decision last Thursday and hopefully it will be a decisive factor in successfully claiming their clients’ innocence. More specifically, the University of Sheffield’s Miscarriage of Justice Review Centre have a number of cases involving joint enterprise and our students are using the recent judgement to help with many of their own cases to restore justice and overturn wrongly decided convictions.
There is no denying the judgment was a great success for our judiciary and our society. It was with great anticipation that we awaited the outcome of this case, and now with a great deal more we eagerly await the effect the judgement will have on those seeking to appeal…
Nicola Campbell studies law at the University of Sheffield. She is a member of the Miscarriages of Justice Review Centre, where she is a leader of a group investigating the case of someone who claims to have been wrongly convicted of a serious crime. Nicola is a member of a team of four students who recently won the Law Commission’s competition for an essay on law reform: the students’ chosen subject was the joint enterprise doctrine.