Law and Rights
Over 3 days in late October 2015 the Supreme Court of the UK (UKSC) heard the very important criminal law case of Jogee. At the same time, the same judges heard the Judicial Committee of the Privy Council (JCPC) case from Jamaica - Ruddock. Judgment is to be handed down in both cases on 18th February. This post is a summary of the issues and makes no attempt to predict the outcome of either case.
The court's decision in Jogee is likely to determine the position in English law for a considerable time and a very clear statement of the law is required. The Ruddock decision will affect the law in Jamaica and possibly well beyond that jurisdiction.
The principal question:
When, in law. may a defendant be convicted on the basis of what is sometimes referred to as "parasitic accessorial liability." It is commonly referred to as "joint enterprise" though there are other forms of joint enterprise liability.
The present law:
The modern law dates from the decision of the Judicial Committee of the Privy Council in Chan Wing-Siu (1984) and this was adopted by the House of Lords in R. v Powell and English (1997).
In A,B,C,D v The Queen Hughes LJ described this form of liability in this way:
"D2 may be guilty of an offence (crime B) that he did not want or intend D1 to commit, providing that he foresaw that D1 might commit it in the course of their common enterprise in crime A."
For example, D1 and D2 embark on robbery (crime A) at a garage but D1 pulls a gun and shoots the cashier (crime B).
Criticism of the law:
The problem is that the judiciary has struggled to define exactly the conduct required on the part of D2 and also the mental element (mens rea) required on D2's part. Exactly what must D2 have foreseen and what degree of foresight is required. This has led to numerous appeals but certainly not to greater clarity.
This form of liability is a common law concept that at times results in individuals being sentenced to life imprisonment for murder. The lack of clarity is unacceptable.
The present state of the law was described to the court by Felicity Gerry QC (counsel for Jogee) as "a dog's breakfast." Miss Gerry invited the court to re-express the law in terms of requiring knowledge of the essential elements of the offence committed by the principal (or the type of offence) together with acts that demonstrate an intent to assist or encourage that offence (or type of offence).
There is no doubt at all that there are cases where the application of the present law is seen as harsh and unfair. See the article at BBC 30th January 2015 - The complex case of joint enterprise.
Jogee - the facts:
On the night of 9 June 2011, at around midnight, the appellant (Jogee) and his friend Hirsi visited the house of Naomi Reid ostensibly for the purpose of consuming drugs. During this visit, the appellant picked up a large knife from the kitchen block saying that they should go and stab another man they knew. He was talked down from this and returned the knife. Miss Reid asked them to leave before Paul Fyfe, with whom she was having a sexual relationship, returned. They left. Hirsi returned shortly but was taken away by the appellant an hour later. Both returned together at Miss Reid's home at 2.23am. Hirsi went inside the house. The appellant stayed outside at all stages, close to the front door, purportedly damaging Mr Fyfe's car. There were angry exchanges between Mr Fyfe and Hirsi. Mr Fyfe went upstairs to put some clothes on, whereupon Hirsi went to the kitchen and took the knife. There were further heated exchanges. According to Miss Reid, although Mr Fyfe told them to leave, from outside the appellant threatened to hit Mr Fyfe over the head with the brandy bottle in his hand. The appellant was also "egging" Hirsi on to harm Mr Fyfe. Hirsi then stabbed Mr Fyfe with the kitchen knife resulting in Mr Fyfe's death. The appellant and Hirsi were both subsequently found guilty of murder and sentenced to life imprisonment. The appellant appealed, amongst other grounds, on the basis that, in these circumstances, foresight of a mere possibility that Hirsi would use the kitchen knife with the intention of causing at least serious bodily harm to Mr Fyfe was not enough to found a conviction of murder as against him. The Court of Appeal dismissed this ground of the appeal - see the judgment.
Ruddock - the facts:
A taxi driver was murdered and his car was stolen. The police found the car; a man named Oneil Hudson was in the driver's seat and the appellant was sitting in the back. Mr Hudson later confessed to the murder. The prosecution alleged that the appellant (Ruddock) joined with Mr Hudson in a common design to steal the car, and that during the course of the joint enterprise he tied up the victim before Mr Hudson cut his throat. The appellant's defence was that he got into Mr Hudson's car after working with him as a trader that day. He did not know how Mr Hudson came by the car or that the owner had been murdered. At trial, the prosecution relied on evidence from two police officers that the appellant had made statements admitting his involvement. The appellant denied making these statements and alleged that he was subjected to police brutality while in custody. He was convicted of joint enterprise murder. He contends that his conviction was unsafe because inadmissible evidence was put before the jury and there were defects in the judge's directions on the law.
Watching the case:
The court hearings may be viewed via the UKSC website
Parliament:
Although there has been Justice Committee concern about the state of the law, there has been no Ministerial appetite to bring forward any reform. Ministerial concern arises from their view that strong law is needed to tackle gang violence. (An example of "common enterprise" and gang violence may be seen in R v Aziz and others [2009] EWCA Crim 2368).
The Justice Committee reported in early 2012 . In late 2014, the Justice Committee issued a follow up report to their 2012 report and called upon the Law Commission to review the law.
- Catching Up ..... !
Supreme Court UK LIbraryA little bit of catching up ........ a) From 27th to 29th October, the Supreme Court heard the joint enterprise case of R v Jogee. The proceedings may be viewed via the Supreme Court website. Previous post. ...
- Joint Enterprise (3) - Concerns Are Widespread
The problematic aspect of criminal law commonly referred to as "Joint Enterprise" has been in the news recently as a result of a televised drama by Jimmy McGovern - COMMON. Please look at the previous posts on this topic - 4th April 2014 - Joint Enterprise...
- Joint Enterprise (1) Or Parasitic Accessory Liabilty ~ Setting The Scene
Individuals can participate in crime in various ways and the criminal law recognises this by enabling the conviction of not only principal offenders - (that is, those who actually commit the prohibited act with any necessary mental element or mens rea)...
- Joint Enterprise
On 19 October 2011, the House of Commons Justice Committee. announced an inquiry into the aspect of secondary liability in a criminal venture commonly known as joint enterprise. The inquiry was prompted by dissatisfaction with the operation of the doctrine...
- Joint Enterprise Murder
In R v Rahman [2008] UKHL 45, Lord Brown began his speech by stating ? ?There are many more murderers under our law than there are people who have killed intentionally. The actus reus of murder is, of course, the killing of the victim; the mens rea (established...
Law and Rights
Jogee and Ruddock ~ cases at the UKSC and JCPC
The court's decision in Jogee is likely to determine the position in English law for a considerable time and a very clear statement of the law is required. The Ruddock decision will affect the law in Jamaica and possibly well beyond that jurisdiction.
The principal question:
When, in law. may a defendant be convicted on the basis of what is sometimes referred to as "parasitic accessorial liability." It is commonly referred to as "joint enterprise" though there are other forms of joint enterprise liability.
The present law:
The modern law dates from the decision of the Judicial Committee of the Privy Council in Chan Wing-Siu (1984) and this was adopted by the House of Lords in R. v Powell and English (1997).
In A,B,C,D v The Queen Hughes LJ described this form of liability in this way:
"D2 may be guilty of an offence (crime B) that he did not want or intend D1 to commit, providing that he foresaw that D1 might commit it in the course of their common enterprise in crime A."
For example, D1 and D2 embark on robbery (crime A) at a garage but D1 pulls a gun and shoots the cashier (crime B).
Criticism of the law:
The problem is that the judiciary has struggled to define exactly the conduct required on the part of D2 and also the mental element (mens rea) required on D2's part. Exactly what must D2 have foreseen and what degree of foresight is required. This has led to numerous appeals but certainly not to greater clarity.
This form of liability is a common law concept that at times results in individuals being sentenced to life imprisonment for murder. The lack of clarity is unacceptable.
The present state of the law was described to the court by Felicity Gerry QC (counsel for Jogee) as "a dog's breakfast." Miss Gerry invited the court to re-express the law in terms of requiring knowledge of the essential elements of the offence committed by the principal (or the type of offence) together with acts that demonstrate an intent to assist or encourage that offence (or type of offence).
There is no doubt at all that there are cases where the application of the present law is seen as harsh and unfair. See the article at BBC 30th January 2015 - The complex case of joint enterprise.
Jogee - the facts:
On the night of 9 June 2011, at around midnight, the appellant (Jogee) and his friend Hirsi visited the house of Naomi Reid ostensibly for the purpose of consuming drugs. During this visit, the appellant picked up a large knife from the kitchen block saying that they should go and stab another man they knew. He was talked down from this and returned the knife. Miss Reid asked them to leave before Paul Fyfe, with whom she was having a sexual relationship, returned. They left. Hirsi returned shortly but was taken away by the appellant an hour later. Both returned together at Miss Reid's home at 2.23am. Hirsi went inside the house. The appellant stayed outside at all stages, close to the front door, purportedly damaging Mr Fyfe's car. There were angry exchanges between Mr Fyfe and Hirsi. Mr Fyfe went upstairs to put some clothes on, whereupon Hirsi went to the kitchen and took the knife. There were further heated exchanges. According to Miss Reid, although Mr Fyfe told them to leave, from outside the appellant threatened to hit Mr Fyfe over the head with the brandy bottle in his hand. The appellant was also "egging" Hirsi on to harm Mr Fyfe. Hirsi then stabbed Mr Fyfe with the kitchen knife resulting in Mr Fyfe's death. The appellant and Hirsi were both subsequently found guilty of murder and sentenced to life imprisonment. The appellant appealed, amongst other grounds, on the basis that, in these circumstances, foresight of a mere possibility that Hirsi would use the kitchen knife with the intention of causing at least serious bodily harm to Mr Fyfe was not enough to found a conviction of murder as against him. The Court of Appeal dismissed this ground of the appeal - see the judgment.
Ruddock - the facts:
A taxi driver was murdered and his car was stolen. The police found the car; a man named Oneil Hudson was in the driver's seat and the appellant was sitting in the back. Mr Hudson later confessed to the murder. The prosecution alleged that the appellant (Ruddock) joined with Mr Hudson in a common design to steal the car, and that during the course of the joint enterprise he tied up the victim before Mr Hudson cut his throat. The appellant's defence was that he got into Mr Hudson's car after working with him as a trader that day. He did not know how Mr Hudson came by the car or that the owner had been murdered. At trial, the prosecution relied on evidence from two police officers that the appellant had made statements admitting his involvement. The appellant denied making these statements and alleged that he was subjected to police brutality while in custody. He was convicted of joint enterprise murder. He contends that his conviction was unsafe because inadmissible evidence was put before the jury and there were defects in the judge's directions on the law.
Watching the case:
The court hearings may be viewed via the UKSC website
Parliament:
Although there has been Justice Committee concern about the state of the law, there has been no Ministerial appetite to bring forward any reform. Ministerial concern arises from their view that strong law is needed to tackle gang violence. (An example of "common enterprise" and gang violence may be seen in R v Aziz and others [2009] EWCA Crim 2368).
The Justice Committee reported in early 2012 . In late 2014, the Justice Committee issued a follow up report to their 2012 report and called upon the Law Commission to review the law.
- Catching Up ..... !
Supreme Court UK LIbraryA little bit of catching up ........ a) From 27th to 29th October, the Supreme Court heard the joint enterprise case of R v Jogee. The proceedings may be viewed via the Supreme Court website. Previous post. ...
- Joint Enterprise (3) - Concerns Are Widespread
The problematic aspect of criminal law commonly referred to as "Joint Enterprise" has been in the news recently as a result of a televised drama by Jimmy McGovern - COMMON. Please look at the previous posts on this topic - 4th April 2014 - Joint Enterprise...
- Joint Enterprise (1) Or Parasitic Accessory Liabilty ~ Setting The Scene
Individuals can participate in crime in various ways and the criminal law recognises this by enabling the conviction of not only principal offenders - (that is, those who actually commit the prohibited act with any necessary mental element or mens rea)...
- Joint Enterprise
On 19 October 2011, the House of Commons Justice Committee. announced an inquiry into the aspect of secondary liability in a criminal venture commonly known as joint enterprise. The inquiry was prompted by dissatisfaction with the operation of the doctrine...
- Joint Enterprise Murder
In R v Rahman [2008] UKHL 45, Lord Brown began his speech by stating ? ?There are many more murderers under our law than there are people who have killed intentionally. The actus reus of murder is, of course, the killing of the victim; the mens rea (established...