Until​ the Supreme Court gave its landmark judgment in R. v. Jogee on 18 February, it was possible for someone to be convicted of a crime which they did not personally commit or intend to commit, under the common law doctrine of joint enterprise. If they were involved with an accomplice in one offence, and they foresaw that the accomplice might go on intentionally to commit another, they could be found guilty of the second offence without having taken part in it. So if there was a fight between two groups of teenagers, and someone was killed, then one of the teenagers could be found guilty of murder if, without intending it himself, he realised that someone else in his group might intentionally kill one of their opponents. He might be a long way off, out of sight and unarmed when the killing took place, but if it could be proved that he had the requisite foresight when he took part in the fight, it would be enough to get a conviction and a life sentence.

The legal term for people not directly involved in offences is ‘secondary parties’, and there are various ways of proving their criminal liability, including joint enterprise. The question the Supreme Court considered was whether joint enterprise over-criminalises secondary parties, and it has found that it does.

Opposition to the law had been growing in recent years: campaign groups, parliamentarians and even some judges (in retirement at least) all voiced anxiety about its potential for injustice.* It was seen to operate indiscriminately as a drift net, putting people on trial for the most serious offences when their involvement – if any – was too remote to expose them fairly to criminal liability. Young black men made up an alarming and disproportionately high number of those found guilty of murder on this basis.

In October the Supreme Court heard Ameen Jogee’s appeal against his 2010 murder conviction (the same judges, sitting as the Judicial Committee of the Privy Council, heard an appeal from Jamaica, R. v. Ruddock, at the same time). This was the third time in six years that the UK’s highest court – whose judgments command great respect and are cited as authorities in jurisdictions across the world – had to consider the law of joint enterprise; but it was the first time that it had been asked to examine the history of the law in detail, and the first time it was shown that a basic error in a case decided in 1984 had taken the law in the wrong direction. Lords Toulson and Hughes (who gave the joint judgment, with which the other justices agreed) said the court had had ‘the benefit of a far deeper and more extensive review of the topic of so-called “joint enterprise” liability than on past occasions’.

The appellants were joined by two ‘interveners’ – interested parties whom the court decided had sufficient standing to make their own arguments and submissions in the appeal. They were the campaign group JENGBA (Joint Enterprise Not Guilty by Association), which supports prisoners and their families, and Just for Kids Law, a charity that provides legal representation to children and young people, for which I acted.

The court received arguments in writing and heard oral submissions. Reports of 249 cases from the UK and elsewhere were examined, along with an abundance of academic and other material including neuropsychological evidence used in death penalty appeals in the US Supreme Court, in cases where it was argued that the way adolescents’ brains develop can impede their ability to see things from another person’s point of view (as any parent of teenagers already knows). This makes the requirement that they should foresee what someone else might intend especially problematic.

The court commented that a bank robber, who ‘may have leisure to think before going out to rob a bank’, and may well contemplate the use of lethal force by an accomplice, may reasonably be considered a ‘secondary party’ to a killing during the robbery. ‘But the same is not true in many other cases (for example, of young people who become suddenly embroiled in a fight in a bar and may make a quick decision whether or not to help their friends).’ The court recognised that the emphasis on foresight placed an unfair burden on young people. Over-criminalisation runs contrary to social and legal policy on the rights of children, who are protected by principles enshrined in the UN Convention on the Rights of the Child and in UK law in general. Criminal law is supposed to regulate behaviour: one reason for not driving when drunk is that you know you are not allowed to. But if the rule of conduct is one that you can’t reasonably be expected to understand, or that you lack the capacity to heed, it makes bad law. It’s not reasonable to expect everybody in all circumstances to foresee what someone else might have in mind.

The appellants’ lawyers performed a feat of forensic archaeology, digging through the layers of decisions over five centuries, to reveal the origins and development of the law of secondary liability, whereby those indirectly involved in crime can be found guilty along with the principal offenders. The cases referred to included duellists, apple thieves killing watchmen, poachers shooting gamekeepers and a murder case tried by Chief Justice Saunders in 1556.

The common theme that ran through the jurisprudence was that proof of the accused’s intention was critical (including a conditional intention – if the gamekeeper threatens us, we will kill him). This was the case until the Hong Kong appeal of Chan Wing-Siu came before the Privy Council in 1984. Here the law made its wrong turn. Sir Robin Cooke, a senior judge from New Zealand who was later given a peerage and sat as a judge in the House of Lords, laid down foresight of what the accomplice might intend to do as the test of criminal liability in joint enterprise cases: he did so because he had not grasped that although foresight may be evidence of intention, it had never previously been treated as a substitute for intention, and should not be confused with it. Nevertheless, in the long line of appeal cases that followed Chan Wing-Siu’s, and in countless trials, Cooke’s words were held as authority, and the doctrine took root. No one knows how many people have been found guilty under the Chan Wing-Siu rule who would not have been before Cooke changed the law.

During the October hearing, Lord Toulson pointedly asked the counsel for the prosecution (who was trying to defend the law as it then stood) what had changed so dramatically in society at the time of Chan Wing-Siu to warrant so great a change in the law; history, and the cases going back over the centuries, showed that people had not started committing offences in groups in 1984. The counsel found it difficult to answer. In its judgment the court declared that ‘there does not appear to have been any objective evidence that the law prior to Chan Wing-Siu failed to provide the public with adequate protection.’ With those words it knocked away the spurious public policy defence of the rule, which held that there was a pressing social need to treat group violence with a broad legal brush, and which has disfigured judicial thinking about joint enterprise for three decades.

Judges are masters of diplomatic language. Criticism tends to be muted, but is no less powerful for it. When a judge calls an argument ‘bold’ or ‘novel’, they really mean it’s barking mad. So when the Supreme Court bluntly says Chan Wing-Siu was an ‘error’ and ‘the correction of the error … brings the common law back into recognition of the difference between foresight and intent’, the gloves are off. Cooke screwed up, it means. The doctrine of precedent cemented the error into law, until now.

The correction will not make it harder for the guilty to be convicted. Where there is sufficient evidence of an intention to commit a crime, a conviction will follow. Where there is evidence of foresight it will regain its proper place, as evidence of intent. If there is proof that a member of a gang foresaw that one of his accomplices might kill someone in a fight, and he stuck around, it’s a short step to infer that he did so to make up the numbers and lend his continuing support to the killer – therein lies proof of intent. Getting the law right means no less protection for victims of crime. Putting the wrong people in jail for the wrong offences does nothing for them.

It remains to be seen whether there will be a torrent of historic appeals by people who believe they have been wrongly convicted under the old law. The Supreme Court has not given them carte blanche. They will have to show that they have suffered ‘substantial injustice’, even though judges faithfully applied the law as it was previously understood. Some cases of murder may have to be reclassified as manslaughter. And yet, the Supreme Court has had the integrity to look at 32 years of law and say it was wrong. It rejected the idea that this was a matter for Parliament to deal with: it said that as the judges had made the error, it was up to the judges to put it right. There is something admirable about our imperfect legal system that has shown enough self-confidence to admit and put right its own mistakes.

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Vol. 38 No. 7 · 31 March 2016

Francis FitzGibbon describes the fiasco in which a senior judge, later promoted to the House of Lords, got the law wrong in 1984 and it took more than thirty years to spot the mistake and put it right, leaving countless murder convictions open to question, with all the consequences that implies both for those convicted and for the families of the victims (LRB, 3 March). Having done so he concludes that the story shows ‘something admirable’ about our legal system. As a non-lawyer I see it differently. I remember being taught as a civil servant many years ago that I should never attempt to draft language to be included in legislation, because only a lawyer could choose his words in such a way that dangerous ambiguity would be avoided. It seemed sensible advice at the time.

Oliver Miles

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