Supreme Court hears joint enterprise case that could shake up criminal law syllabuses
Key legal principle could be overhauled — and the whole process is being charted live via video and social media
The Supreme Court is hearing a potentially groundbreaking case this week — and you don’t need to head down to Westminster to bag yourself a front row seat.
The three-day hearing — which began yesterday and continues today — in the case of R v Jogee is being live-streamed from the courtroom, and is also being documented on Twitter by interested commentators.
Two of the most prominent presences in the legal Twittersphere, One Crown Office Row’s Adam Wagner and 36 Bedford Row’s Felicity Gerry QC, have taken to the stage to give submissions in a case which has the potential to shake up criminal law teachings.
Big day! pic.twitter.com/K8i7jG656Y
— Adam Wagner (@AdamWagner1) October 27, 2015
Described by Doughty Street barrister Harriet Johnson as “the most controversial criminal law of our time”, the crux of the case is whether the law on joint enterprise is just. This common law doctrine has been succinctly summarised by top legal commentator Joshua Rozenberg:
If you help or encourage someone to commit an offence, you can be just as guilty as the person who did it… A traditional gangland shooting might involve two people: one to fire the gun [the principal] and another to drive the getaway car [the accessory]. The shooter will not pull the trigger unless he has a means of escape. The driver knows there will be no shooting without him. So both are guilty of murder. The same principle should apply if one person encourages another to pull the trigger.
The question for the court is whether the mental element of the law is too heavily weighted against defendants and, according to Rozenberg, the answer is yes:
There is cogent evidence to suggest that the law has gone too far, particularly on the question of foresight.
The Supreme Court has heard that the law on joint enterprise is unjust, because intent does not need to be proved to secure a conviction. Instead, it is enough that the prosecution can prove that the accessory foresaw that the principal might have gone on to commit the offence.
Gerry, writing with barrister and Nottingham Law School senior lecturer Catarina Sjölin in a recent blog post, explains that the doctrine of joint enterprise “strikes fear into the heart of undergraduates” because the concept is so unclear.
She told the Supreme Court yesterday that the current law is a “dog’s breakfast”. Human rights barrister Adam Wagner went on to describe the doctrine of joint enterprise as “a dog law — punishment first, explanation later”.
The hearing continues until Thursday.