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Criminal law syllabuses to get makeover as Supreme Court gives landmark joint enterprise judgment

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Felicity Gerry QC and Adam Wagner victorious as court changes the law

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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.

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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.

Unsurprisingly, all those involved in the appeal are delighted by the result.

And others are already speculating what this could all mean for students.

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What is clear is that there will be even more criminal law cases to learn.

Watch the judgment in R v Jogee and Ruddock v The Queen in full:

24 Comments

Lord Lyle of the Isles.

The Lyle concurrs with this judgement, but there will be a lot of Bengal Lancers appealing on the back of this who will fail and a lot of good appeals that will succeed.

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Not Amused

What a complete joke the court has become.

(8)(40)

Anonymous

Can I ask why? What is it you do not like, the reasoning, the review of 100s of years of law, the decision? If you are the usual NA rather than an imposter I thought you were all in favour of our domestic courts and reserved your contempt for the foreign ones.

I have read (at some speed) the judgment and consider it well reasoned and thoughtful. In terms of outcome the Defendant is likely to see a small reduction in his sentence at best. What is there to be outraged about?

(7)(0)

a shadowy figure

not a joke NA. Even if you don’t oppose joint enterprise for its criminalisation of people from non-white and working class backgrounds, viewed as merely an academic legal doctrine it was indefensible – why should the secondary party have a significantly lower mens rea than the principal offender?

(5)(4)

Anonymous

Funny, when you’re bashing on Europe England apparently had the finest judiciary in the world.

(4)(0)

Anonymous

How – if at all – does this outcome affect those cases in which a person dies at the hands of a group but the evidence can’t reveal which member of the group inflicted the fatal stab wound, kick, blow etc? Might murder charges be impossible in those circumstances?

(3)(3)

Anonymous

No. Read the judgment.

(8)(0)

Anonymous

Thank you, but I couldn’t be arsed. Hence the question.

(8)(5)

Quo Vadis

Regardless of the merits of the decision (of which there are none), how is it fair to have two QCs and two juniors (for the respondents) facing four QCs and eight juniors (for the appellants and interveners)?

(3)(13)

Anonymous

The Respondent’s Counsel were twice as good.

(8)(0)

Anonymous

What I want to know…

…is what Charlotte Proudman thinks of this.

(14)(10)

HollinsCat13

If I may hazard a guess – she is absolutely appalled ?
😉

(0)(2)

Anonymous

Boo. Charlotte marked me down 🙁

It was only a joke love…

(0)(0)

Lord Lyle of the Isles.

Ye need tae read thae judgement and be a lawyer.

If ye isnae a lawyer, nae point in reading the judgement as ye cannae ken it.

Who here has appeared afore the house O Lords? Who here has appeared in appeals from Jamaica?

LC. Can we please have lawyers only?

(3)(3)

Anonymous

Go away.

(2)(2)

Just Another Person

But how many Training Contracts does the Supreme Court offer??

(24)(1)

Anonymous

It’s a top top Court.

(13)(2)

Anonymous

And how many are offered to women???

(0)(2)

Anonymous

Only scum will benefit

(4)(6)

You Bell-End

You bell-end.

(1)(0)

David Gale

So many comments, so few actually reading the judgment…

(2)(0)

Quo Vadis

I’ve read the judgment. I still think a test of intention is far too lax.

(2)(2)

Anonymous

You think it should be easier to convict a secondary party than the principal?

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Anonymous

If you look at the video of the hearing Felicity Gerry’s submissions were a car crash, truly terrible, which is why the SC called them hopeless. The other guy Knowles was miles better, and he should get the credit for winning the case.

(5)(0)

Comments are closed.