If a defendant was convicted under the principle of ‘joint enterprise’ - that is, not that they carried out a crime themselves, but rather they were together with others who did - and the question is whether and to what extent they participated, the Supreme Court delivered a judgment on 18th February 2016 in the case of R v Jogee  UKSC 8, which said that the law for the past 30 years was wrong.
The Supreme Court said that the principles for joint enterprise participation as originally stated in Chan Wing-Siu v The Queen  AC 168 and as developed in R v Powell and R v English  1 AC 1 were wrong.
So what has changed? What is the impact on past convictions?
The Supreme Court considered the case of Chan Wing-Siu and summarised it thus:
“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. D2’s foresight of that possibility plus his continuation in the enterprise to commit crime A were held sufficient in law to bring crime B within the scope of the conduct for which he is criminally liable, whether or not he intended it.”
If a defendant was convicted on a joint enterprise basis, it has been enough for the past 30 years, for cases including murder, that that defendant foresaw the possibility that the principle to the crime was going to commit it. The Supreme Court have ruled that that was an error, and that the law had taken a wrong turn. The test, the Supreme Court said, is not foresight but rather “intent to assist”. It said in its ruling:
“The error was to equate foresight with intent to assist, as a matter of law; the correct approach is to treat it as evidence of intent. The long-standing pre Chan Wing-Siu practice of inferring intent to assist from a common criminal purpose which includes the further crime, if the occasion for it were to arise, was always a legitimate one; what was illegitimate was to treat foresight as an inevitable yardstick of common purpose.”
This is a re-statement of the law as it has been for over three decades, and will have profound consequences. So how might it apply? The Supreme Court gave some examples:
“… if D2 encourages D1 to take another’s bicycle without permission of the owner and return it after use, but D1 takes it and keeps it, D1 will be guilty of theft but D2 of the lesser offence of unauthorised taking, since he will not have encouraged D1 to act with intent permanently to deprive.”
And in cases of murder:
“If a person is a party to a violent attack on another, without an intent to assist in the causing of death or really serious harm, but the violence escalates and results in death, he will be not guilty of murder but guilty of manslaughter.”
This will clearly potentially affect a large number of ‘gang’ or ‘group’ type cases, where either a defendant has been convicted following trial, or advised to plead guilty based on the law as it stood. The principle applies, as the court gave examples, to all manner of offences from theft to murder. The route open to those convicted was also set out in the judgment:
“… where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That court has power to grant such leave, and may do so if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken.”
If individuals are affected, the most important first step is to get expert advice from a barrister as both to the substance of the new law and the procedural test.
or call 0800 222 9998 to speak to a member of our team.
You can read the full case report here.