Felicity Gerry QC and Adam Wagner victorious as court changes the law
This morning, the highest court in the land has sent Twitter into a social media frenzy as it gave its highly anticipated ruling on the law of joint enterprise.
The Supreme Court confirmed that the law on this controversial doctrine has been “wrongly interpreted”, and overruled more than 30 years of higher court case law. This is a major development, and law students can expect to see their criminal law syllabuses changing to reflect this.
The development stems from the much-awaited case of R v Jogee, which the Supreme Court heard in a three day hearing in October — one that gripped the press and sparked intense social media commentary.
The case was about the doctrine of joint enterprise, a vital component of the criminal law. In a nutshell, it states that all participants in a joint criminal enterprise will be criminally liable for the harm that results from that enterprise, even if the defendant did not ‘pull the trigger’.
For years, the likes of campaign group ‘Joint Enterprise: Not Guilty by Association (JENGbA)’ have led a crusade against the legal doctrine, but it was October’s hearing that really shone a spotlight on the injustices that the law can and has brought about. It racked up over 3,000 online views — making it one of the most watched Supreme Court cases of 2015 — and prompted media commentary from the likes of leading legal affairs journalist and honourary QC Joshua Rozenberg.
The appellant — represented by 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 — told the justices that the mental element of the law is too heavily weighted against defendants. This is because the guilt or non guilt of the defendant hinged on his or her foresight of the offence, as opposed to his or her intent.
Today, Lord Neuberger — giving the unanimous judgment of the court — began by relaying the history of the common law doctrine, stating that the old test hinged on the principal offender and the secondary offender having a shared criminal intent, but then this all changed. In 1984, the law began to take another turn, and the mental requirements were diminished. Foresight became the principle indicator of guilt, not intent. It’s a narrow distinction, Neuberger confirmed, but it’s important.
Though Neuberger explained that the court was “very conscious” to depart from one of its previous decisions or a previous decision of the House of Lords, it was “satisfied” that the courts took a wrong turn in 1984, and that it is the Supreme Court’s responsibility to “put the law right”. The correct position is now this: the secondary party’s foresight of what the principal offender might do is evidence from which the jury might infer shared criminal intent, but it’s not proof of guilt in itself.
Jogee’s conviction for murder will now be set aside, though he is “unquestionably guilty” of at least manslaughter. It is not yet known whether his conviction will be replaced with a manslaughter conviction, or whether there will be a retrial.
Given the amount of support that the campaign has rallied, the reaction to this morning’s judgment has come as no surprise. The Centre for Criminal Appeals has said that it “very much” welcomes today’s judgment, while others took to Twitter to give Neuberger and co the thumbs up.
— Toby Blume (@tobyblume) February 18, 2016
— Elies van Sliedregt (@van_elies) February 18, 2016
— David Allen Green (@DavidAllenGreen) February 18, 2016
Unsurprisingly, all those involved in the appeal are delighted by the result.
— Felicity Gerry QC (@felicitygerry) February 18, 2016
And others are already speculating what this could all mean for students.
What is clear is that there will be even more criminal law cases to learn.