The Judgement in the case has caused Judges some difficulties and resulted in a number of appeal cases being heard.
The test applied since then has essentially stated that “Anyone who is party to an attack which results in an unlawful killing…is a party to the killing”. The difficulties have arisen in the cases where a large group of people are involved in unlawful violence and a death results. This death may have been unintended or unwanted by the majority of the group, but the decision in Chan Wing-Sui (and followed in R v Powell and R v English [1999] 1 AC 1) appeared to suggest that foresight of the possibility of the death along with continued cooperation in the enterprise to commit the original crime, was enough to make those not responsible for the act of killing, criminal liable. This was irrespective of whether or not the fatal outcome was intended.
It appears that the decision of the Supreme Court in R v Jogee [2016] UKSC 8, has brought the test for Joint Enterprise back to the that of the historical position prior to the 1985 decision, bringing the intention of the secondary offender back into the decision making process.
It seems that the decision in R v Wesley Smith [1963] 1 WLR 1200 has now been confirmed as the correct approach to these cases. Only he who intended that unlawful and grievous bodily harm should be done is guilty of murder. He who intended only that the victim should be unlawfully hit or hurt will be guilty of manslaughter if death results.
The decision in Chan Wing-Sui was an incorrect application of the law and any cases decided on that basis may be the subject of review.
It will depend on the individual circumstances of each case whether this is the case or not, and in the majority of cases, will result at best in the alternative manslaughter offence being substituted. It’s important that knee-jerk reactions don’t follow and only time will tell what the full implications of the decision will be. It certainly won’t result in the release of hundreds of convicted offenders being released immediately from custody, but a lot of cases will be worth a review.
If you feel that you or any member of your family may be affected by this change in the law, then please get in touch with Laura Ward-Jones at Burton Copeland Solicitors on 0161 827 9500 to discuss further.