News

Supreme Court hears joint enterprise case that could shake up criminal law syllabuses

By on
48

Key legal principle could be overhauled — and the whole process is being charted live via video and social media

Lead

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.

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.

48 Comments

Anonymous

Katie is clearly just out of law school.

The bigger shake up will be the impact on young gang members serving life when their mate pulled a trigger.

(23)(16)

Anonymous

The haters can do one. You cqn properly judge when you’ve been in conference with these types of affected teenagers that were loosely involved in a melee when the crazy one of the gang pulled a weapon and stabbed ir shot someone and 4 of them are all serving life.

Until then, stick your down arrows in your ignorant backsides and go back to document blozzing in a comfortable office.

(37)(11)

Clive

I bet you’re a right laugh at dinner parties.

(13)(11)

Anonymous

I don’t go to dinner parties. I’m not a middle aged bore like you.

(10)(7)

Anonymous

How about candlelight suppers?

(5)(2)

Anonymous

Are you asking them out?

(4)(1)

Clive's Mum

Clive, you never get invited to dinner parties. You never really leave your room either. Please stop playing World of Warcraft against those Chinese schoolboys.

(21)(1)

Clive

Dads sleeping with his secretary

(6)(4)

Disgusting of Tonbridge Swells

Where’s your grammar, young man?

(1)(2)

Clive's mate

At home with his Grandad.

(8)(1)

Easily amused

Genuine lol! 😀

Anonymous

You should be serving life for your inability to spell the word “can”

(7)(12)

Anonymous

Iphone typing while in-between hearings. If that’s all you have on an important debate about homicide law then politely grow up.

(11)(12)

Peregrine Falcon KC

‘In between hearings’

Yeah right. In between waffles and judge rinder more like.

(21)(6)

Anonymous

I’m gonna make you my girlfriend in my joint enterprise. Pedant princess.

(4)(2)

Anonymous

Are you the defendant in this hearing, and if so is it in relation to your spelling?

(4)(4)

Anonymous

Pedants are so big and clever. Like smoking and swearing.

All kids want to be pedants when they grow up. It makes you so popular.

(6)(1)

Anonymous

Being able to write like you’re not Sharon from down the greasy spoon weighing in on last night’s X Factor finalists is a skill that is held in fairly high regard in law.

(1)(3)

sharon

Fuk yaself, posh cunt

Disgusting of Tonbridge Swells

The doctrine serves as a deterrent to gang activity.

Let’s hope they leave it as it is.

(9)(9)

Sodslaw

Yes, I understand the rude bois speak of little else

(8)(0)

Anonymous

This has needed addressing for years, particularly in relation to murder and and mandatory life sentences. It appears to frequently catch people who had little actual involvement in the fatal act. Of course, there are a number of very good policy reasons for JE in its current state but it’s always stuck with me that there hasn’t been a more just alternative for those on the periphery. A 16 year old doing the same before being eligible for parole for effectively ‘being there’ isn’t great.

(10)(1)

Anonymous

But of course they can’t be convicted just for “being there” can they? While it is a convenient stick for campaigners to beat the law with, mere presence is not sufficient to found criminal liability in these cases.

(9)(6)

Anonymous

If people were not being convicted for being fairly far removed from the principal act then this wouldn’t be such a contentious issue and going before the appellate courts yet again.

(3)(2)

Anonymous

The circumstances stated are not just ‘mere presence’.
If 2 people plot to kill someone, they have one gun and one car. One drives the car to the target, (knowing they will be killed). The second shoots the gun. Both are equally guilty of murder.
Of course cases are judged on a case by case basis. So I am not generalising this situation to all. But you can not be so single minded in a matter where there is so many circumstances to consider.

(3)(3)

BPTC Graduate

In the main, conviction secured under the joint enterprise doctrine are simply not proportionate for peripheral parties to the crime. I hope the Supreme Court see sense and get rid of it all together.

(10)(8)

Lord Sumption

Watch it matey or I’ll get rid of you altogether.

(7)(2)

Anonymous

In the main convictions secured under the joint enterprise principle are entirely proportionate. The principle applies to a wide range of situations and a wide range of offences. There are a relatively small number of cases where the convictions are controversial, largely in cases of murder where (arguably) a less wide ranging exposition of the principle would have lead to manslaughter convictions.

(2)(4)

Criminal Barrister of many years' call

Congratulations on passing the BPTC, BPTC Graduate.

With respect, you’re wrong, though.

(7)(3)

Anonymous

That which is asserted without reasons or evidence can be dismissed without reasons or evidence.

(3)(2)

Easily amused

Circular argument, non?

(2)(3)

Anonymous

Not at all. Just a basic application of the burden of proof.

Saying that someone is wrong without providing reasons why, is pointless and a waste of everyone’s time.

(3)(0)

Russell Howard fan

Anyone else think Adam Wagner looks just like Russell Howard? Yum.

(6)(0)

Anonymous

Gammy eyes?

(2)(0)

Anonymous

you can’t fit a cigarette paper between them

(2)(0)

Traditional pedant

* syllabi

(1)(0)

anon

Don’t go and shoot anyone # problem solved.

(0)(1)

Criminal Barrister of many years' call

…or be encouraging/assisting anyone in doing the same.

Simples!

(1)(1)

Not Amused

I do not know enough to say about the specific case. But broadly speaking I would favour teaching criminal law in schools instead of tweaking the law.

I suspect the essence of which the twittering classes object is that a relatively young person might find themselves convicted in a situation in which they had no idea they might be committing a crime. In those circumstances I prefer to educate the young person. That has the benefit of potentially preventing the crime, rather than tweaking a definition just to let someone off.

(5)(1)

Anonymous

This is a delightfully circular argument which could be used to justify criminalising anything.

(0)(0)

Not Amused

Yes.

It should also be the only argument for criminalising anything.

(0)(0)

Anonymous

I know of someone who was convicted under joint enterprise. The victim said he was nothing to do with the fact that he was beaten up. He was standing at least 50 feet away from the incident. The Judge directed the Jury that he was involed in joint enterprise because he had been with the aggressors earlier in the evening. Fortunately the person convicted was a throroughly decent person of impeccable record before and after, so the prison sentance did not ruin his life as much as it could have done if the charges had been murder or manslaughter. Yes, this “catch-all” concept seriously needs changing back to the requirement of “intent” which it essentially negates.

(2)(2)

Anonymous

If a judge had directed the jury to that effect then he would have appealed and his conviction would have been quashed. But he didn’t, did he? Rather like some of the poster stars for the campaigners against the joint enterprise principle were rather more involved in the offending than their supporters are prepared to let on.

(0)(3)

Anonymous

Hilarious how whenever something crimey is reported, out come all the crimbo hacks with their shocking spelling and grammar.

(3)(0)

Anonymous

That’s because criminal law is more advocacy based you fuckwit. Civil trials are so laid out by paper that judges already decide the verdict and go through the motions at trial. If you disagree then it just means you lack trial experience.

(5)(2)

Anonymous

No verdicts in civil trials you silly billy.

(0)(2)

Kevin Craigie

The law of Joint Enterprise has no place in a self proclaimed civilised society. It is routinely abused by the Police in conjunction with the Prosecution to convict innocent people. These people are almost always, young men and women from working class backgrounds. Jury’s are conveniently instructed by the Judge that they must convict one or all, thus depriving the other’s of a fair trial prescribed under the magna carta. The solution is to charge each individual accordingly. Joint Enterprise is then not necessary. The British judicial system evidently recognise that the general public are now far more educated. They are appalled at how this common law is used…to destroy the innocent. Fortunately, as each year passes, more people, from various walks of life, are joining the fight to have this law either abolished, or seriously amended.

(3)(1)

Anonymous

But joint enterprise is often used where there has been a killing or serious injury by a group and no one can be sure who inflicted the fatal or wounding blow, slash, shot etc. Individual charges could never establish individual responsibility. All would be innocent of the principal charge. Group responsibility attaches though, morally and legally.

I do agree that there are some dubious convictions under joint enterprise; but that’s a reason for looking at the directions given and the proper use of appeals, not a reason for dumping a sound and necessary doctrine.

(0)(1)

Comments are closed.