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JOGEE AND JOINT ENTERPRISE – WHERE TO FROM HERE?:
HISTORIC CONVICTIONS, APPEALS, AND
THE CRIMINAL CASES REVIEW COMMISSION
Joel Bennathan QC and Paul Taylor
On 18th February the Supreme Court handed down a landmark judgment which re-stated
the legal principles of criminal joint enterprise in murder trials. For 30 years secondary
parties, those who encouraged or assisted but did not themselves carry out the fatal act
of violence, were liable to be convicted of murder if they foresaw the principal might
commit that crime; no intention on their part was required. Having carried out a detailed
analysis of the common law in this area – both domestic and Commonwealth – the
Supreme Court concluded that it could not support the previous approach set out in the
Privy Council case of Chan Wing-Siu [1985] AC 168. “The error was to equate foresight
with intent to assist, as a matter of law; the correct approach is to treat it as evidence of
intent” (see paragraph 87). So a secondary party now needs to intend the offence is
carried out before they can be convicted of it.
By re-stating the law in this way, the Justices recognised “the significance of reversing a
statement of principle which has been made and followed by the Privy Council and the
House of Lords on a number of occasions” (including in Powell and English [1999] 1 AC
1 HL). Nonetheless, they considered “that it is right to do so” (paragraph 79) because the
Court had had the benefit of a much fuller analysis of the law than on previous occasions
and the current law was not well established and working satisfactorily. The fact this area
of the common law had taken a wrong turn was a good reason that it should be corrected
by the courts and the adoption of the test of foresight had resulted in over-extension of
the law of murder and reduction of the law of manslaughter.
This change is to be welcomed and removes the striking anomaly of requiring a lower
mental threshold for guilt in the case of the accessory than in the case of the principal
(see paragraphs 80-85).
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The declaratory principle of common law means that the Supreme Court’s judgement is
not seen as a change to the law but as a clarification of what, unbeknown to Counsel and
Judges for a legal lifetime, it always was before taking a “wrong turn”. So what of past
convictions based on this erroneous understanding of the law? The Supreme Court
showed no enthusiasm for allowing every joint enterprise murder conviction in the last 30
years an appeal:
“The effect of putting the law right is not to render invalid all convictions which
were arrived at over many years by faithfully applying the law as laid down in
Chan Wing-Siu and in Powell and English. The error identified, of equating
foresight with intent to assist rather than treating the first as evidence of
the second, is important as a matter of legal principle, but it does not follow that it
will have been important on the facts to the outcome of the trial or to the safety of
the conviction. Moreover, where a conviction has been arrived at by faithfully
applying the law as it stood at the time, it can be set aside only by seeking
exceptional leave to appeal to the Court of Appeal out of time. That court has
power to grant such leave, and may do so if substantial injustice be
demonstrated, but it will not do so simply because the law applied has now been
declared to have been mistaken...” (paragraph 100).
The problem arises because of the legal concept that what seems like a new law is actually
what the law has always been, albeit everyone misunderstood it; therefore the convictions of
people tried and convicted under the old “understanding” have to have been legally flawed.
Yet the appellate courts have long been concerned about so called “change in the law”
cases which have the potential to open the “flood gates” to numerous historic appeals. The
Courts have been anxious to control such cases by requiring an exceptional justification to
allow the appeal out of time, over and above a change in the law. In other words, an appeal
launched more than 28 days after conviction will be refused the necessary extension of time
if it is based on a “change” in the law.
Moreover, following Cottrell and Fletcher [2008] 1 Cr App R 7, section 16C Criminal Appeal
Act 1968 was introduced (by s.42 of the Criminal Justice and Immigration Act 2008) to
meet the Court of Appeal’s concerns, so as to stop the CCRC using its powers to refer
convictions which had been rendered unsafe as a result of a change, or clarification, of
the common law. The effect is that the Court can now dismiss an appeal arising from a
reference by the CCRC if ‘the only ground for allowing it would be that there has been a
development in the law since the date of the conviction, verdict or finding that is the
subject of the appeal’. The one get-out clause is that the Court may extend the normal
leave period, or entertain a reference from the CCRC based on a change in law, to avoid
a “substantial injustice”.
There are two conclusions that can be drawn. First, a simple assertion that a conviction
was obtained under common law principles that have since been re-stated will not
succeed. Second, the key words that need to be addressed by potential applicants in
these “change of law” cases are “substantial injustice”. If the applicant can show that as a
result of the re-statement of the law he has suffered “a substantial injustice” by being tried
under the “old law”, an out of time appeal or reference by the CCRC should follow. So the
Court of Appeal is very likely to have its definition of a ”substantial injustice” tested in the
near future; must it generally be said to include someone being convicted on a basis that
is now seen to be erroneous? Or will the Courts seek to apply a more restrictive test?
Either way, in order to succeed it will be necessary to show that the use of the “wrong” law
may well have made a difference to the jury’s verdict. This will involve a detailed analysis
of the facts and the likely impact on the issues before the jury under the “old” and
“restated law.”
The Criminal Cases Review Commission certainly recognises the importance of Jogee
and its likely impact on historic convictions. In a press release yesterday the Commission
thought it likely that the case “will have a significant impact on the work of the
Commission”, in terms of future cases, the 30 or so joint enterprise murder convictions
currently under review, and potentially with regard to earlier closed cases of this type.
The next few months will see the Court of Appeal’s floodgates tested as they have never
been before.
Joel Bennathan QC and Paul Taylor are both barristers at Doughty Street Chambers and specialise in
criminal appeals. Joel was in the leading case of Cottrell and Fletcher, and is the co-author of The
Criminal Appeals Handbook. Paul is the head of the Doughty Street Appeals Unit, and the editor of the
leading practitioner textbook, Taylor on Criminal Appeals.
Five barristers from Doughty Street Chambers appeared in R v Jogee – Tim Moloney QC, Francis
FitzGibbon QC, Caoilfhionn Gallagher, Jude Bunting and Daniella Waddoup. Their analysis of the
decision can be found by clicking here.
Our Appeals Unit welcomes enquiries from those wishing to take advice on what this correction of the
law might mean for their case. Please email us or call Maurice MacSweeney on 020 7404 1313.