Update on Joint Enterprise

Update on Joint Enterprise

Supreme Court

by Felicity Gerry QC and Catarina Sjölin

The two and half days of hearing in R v Jogee; R v Ruddock in the Supreme Court is now available online.

As you will see from our earlier post, we, with Adam Wagner and Diarmuid Laffan, and with the assistance of Dr Matt Dyson and Beatrice Krebs, represented Mr Jogee. Our initial submissions were made on the first morning and our reply, in which we distil our submissions and deal with the matters raised by both judges and other parties, can be seen on the third day.

In essence, our submission was that the law had taken a wrong turn in the case of Chan Wing-Sui [1985] A.C. 168 . We urged the court to put right this erroneous tangent of law and return to the foundational law encapsulated in Johnson v Youden [1950] 1 KB 544:

The true test for accessorial liability is knowledge of the essential matters of that offence or that type of offence and acts which demonstrate an intention to assist or encourage that offence or that type of offence.

Such a formulation can adapt to individuals assisting each other or cases where there is evidence of a common plan. This does not mean all cases would have to be revisited as most reached a justifiable conclusion by the wrong route – the classic example is the joint knife attack in Chan Wing-Sui itself . Even that case, where parasitic accessorial liability (PAL) took root, shows how PAL lightened the burden for the prosecution; what is needed is this reformulation to prevent further miscarriages of justice. Even following Chan Wing-Sui, PAL and the low mens rea requirement of foresight alone did not really take hold until R v Powell and Daniels; R v English [1999] 1 AC 1.As pointed out by Lord Toulson during the hearing, Chan Wing-Sui and the following cases significantly changed the law but, he asked, what had changed in society to demand this change? In our submission, nothing.

A lot of effort in the cases has been expended on discussing and fixing the level of foresight / probability. The focus, however, should be on what the defendant knew, rather than weighing to a nicety the chances of a particular event or circumstance occurring. Did the defendant know the essential matters of the offence which the principal commits? In Mr Jogee’s case the question would be ‘did he know that the principal had a knife and would use it to stab the victim, intending to kill or cause really serious harm?’ The question of whether we can ‘know’ the future was raised in argument. Our response was that knowledge is just a justified true belief, but in any event the court should not get involved in debating the semantics of the word and should look at how the word ‘know’ is used. People (even lawyers) speak of ‘knowing’ what is going to happen and it is that, readily understood and common used, meaning of the term ‘knowledge’ which we submitted the court could and should use.

Examples provided to the court of this (using the cases already before them) were:

  • From the Australian case of Johns (1980) 143 CLR 108 the summary of the facts from the majority judges when discussing the secondary party’s awareness of what was going to happen: “the applicant also stated that he knew that Watson would not let Morris ‘get on top of him’”;
  • In the English case of Slack [1989] QB 775 Lord Lane CJ in explaining the earlier case of Maxwell [1978] 3 All ER 1140 said: “[the secondary party] knew that others who were following his lead car were armed and that they would make some terrorist attack whether by guns, bombs or incendiary devices he did not know”.

As to the “essential matters”, what they are will depend on the facts of the case and will need to be identified by the prosecution, and the judge when s/he directs the jury. As the authorities show, this can range from publishing a book, to selling a house, to group violence with weapons.

The second question is whether the secondary party with that knowledge intentionally assisted or encouraged the principal. What the secondary party knew and intended are questions of fact for a properly directed jury.

In cases of murder, which both Jogee and Ruddock were, manslaughter, or another appropriate lesser offence, remain as alternatives. That was something which both appellants and respondents agreed upon.

Judgement was reserved by the Supreme Court and we hope that 2016 will bring with it a change to the law of ‘joint enterprise’.

About the author

Catarina Sjolin is a Senior Lecturer at Nottingham Law School. Her research is on criminal law, including evidence and procedure, with a particular focus on sexual offences and violence.

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