Last week’s ruling in the Supreme Court, which found that the law relating to joint enterprise has been wrongly interpreted for the past 30 years, was a shock and also a huge sigh of relief.
It is estimated that the misinterpretation of a law may have led to a minimum of 650 people being jailed for the crime of murder and now left wondering precisely where this latest ruling leaves them in terms of potentially appealing their conviction.
The legal profession had been arguing for many years that ‘joint enterprise’ was deeply flawed in both conception and delivery, and that it was leading to a dangerous and damaging dilution of the levels of proof required to convict someone for the most serious of crimes.
The Supreme Court ruling has therefore simply confirmed what many had been saying for years; that under the auspices of ‘joint enterprise’ an inference of ‘foresight’ was being taken as proof beyond a reasonable doubt of knowledge and complicity, and that this simply wasn’t good enough.
The controversy has centred upon the fact that joint enterprise blurs the traditional view of serious crimes such as manslaughter and murder – crimes which, above all others, demand the utmost clarity. Under normal circumstances a person convicted of murder must be proved to have intended, by their actions, to cause either serious harm or death. Joint enterprise as it stood held that a defendant can be convicted even if they only played a secondary and often peripheral part in the act, but it can be shown that they had a belief or realisation that the principal party was going to commit the act in question.
The Supreme Court ruling last Thursday (18/02/16) centred upon two joint enterprise cases, one which took place in Leicester, the other in Jamaica, it being the first time the Supreme Court and Privy counsel have come together. In both of the cases men found guilty of murder under joint enterprise have now had their convictions set aside. The British case involved Ameen Hassan Joggee, currently serving a life sentence. On June 9th 2011, Jogee visited the house of Naomi Reid with his friend, Mohammed Adnam Hirsi, but both were asked to leave before Paul Fyfe, with whom Reid was involved in a relationship, returned to the house. After leaving, they returned an hour later, and Jogee took Hirsi away again. Finally, they returned again and Hirsi went into the house while Jogee remained outside, allegedly damaging Fyfe’s car.
Fyfe and Hirsi argued and Hirsi picked up a knife from the kitchen. Jogee, still outside the house, threatened to hit Fyfe over the head with a brandy bottle he was carrying. He was alleged to have been encouraging Hirsi to harm Fyfe when Hirsi stabbed Fyfe with the kitchen knife, killing him. Despite the fact that he was outside the building at the time, Jogee was found guilty along with Hirsi of the murder of Fyfe.
Jogee’s appeal was based, at least partially, on the grounds that, given the circumstances, any foresight of simply the possibility that Hirsi would use the knife with the intention of causing serious harm to Fyfe was not enough to convict him of murder.
The Supreme Court found in his favour, with Lord Neuberger, stating that:
“The correct position is that … foresight of what the principal might do is evidence from which the jury may infer that he intended to assist or encourage to do so, but it is for the jury to decide on the whole evidence of whether he had the necessary intent.”
The Supreme Court traced the origins of the misinterpretation of joint enterprise to a judgement made by the judicial committee of the Privy Council in 1984 which entrenched the principal of ‘foresight’ as being a requirement of the establishing of guilt. According to the Supreme Court, this new decision brings “the mental element required of a secondary party back into line with that which is required of the principal and to bring the law back to the principles which had been established before the law took a wrong turn”.
That this ‘wrong turn’ has finally been acknowledged was greeted with a combination of relief, sorrow and anger by those who have campaigned long and hard for a change in the law. What most were keen to point out was that this recognition was long overdue but that it by no means meant that the courts would now be flooded with appeals from people convicted under joint enterprise, nor, as some of the more excitable media would have the general public believe, that people would now be ‘getting away with murder’. Indeed, Mr Jogee himself will remain in prison until his lawyers decide whether to press for a full retrial or a replacement of the murder conviction with one for manslaughter.
Reacting to the decision, the Crown Prosecution Service conceded that a change in charging policy may result, stating: “We are carefully reviewing the judgment handed down today to determine its impact and our subsequent approach to such prosecutions.” The Supreme Court itself, meanwhile, highlighted the impact which the judgement would have on the directions given to juries:
“In cases where there is a more or less spontaneous outbreak of multihanded violence, the evidence may be too nebulous for the jury to find that there was some form of agreement, express or tacit.”
‘Mulithanded violence’ can here be taken to read as a euphemism for gang violence, and it is the focus on dealing with the problem of gangs, almost exclusively of young males, which has fuelled much of the misuse, not say abuse, of the principal of joint enterprise. The Commons Justice Select Committee, in a report published last year, was highly critical of joint enterprise, stating that many of the people convicted of murder should have been charged with lesser crimes, and that the standard used to establish culpability needed to be raised. It should be noted, however, that in a report published in 2012 the same committee stated that:
We welcome evidence to suggest that the deterrent effect intended by the courts can discourage young people, who may be on the periphery of gang-related activity, from becoming involved in criminality.
In other words, the threat of joint enterprise was regarded as a tool of social as much as legal policy, acting as a deterrent to young people who might otherwise be drawn into gang related activity. The overuse of joint enterprise, the excessive criminalisation of young people who, by no means always entirely blameless, had done nothing worthy of a conviction for murder, and the eroding of basic principles of proof and responsibility had been dangerously pursued on the back of a widespread panic about the growth of ‘gang culture’. The ruling of last week has attempted to rectify this serious problem and in effect taken a common sense approach to what the definition of joint enterprise should always have been.
Maria Theodoulou is a Partner at Stokoe Partnership Solicitors, and specialises in all criminal defence matters, with strong expertise in defending serious cases involving allegations of murder, armed robbery and conspiracy to supply large scale class A drugs.
Stokoe Partnership Solicitors are a leading criminal defence firm, specialising across a range of serious criminal defence matters.