The first of possibly many test cases will be heard at the Court of Appeal today following the Supreme Court ruling in February this year in the cases of Jogee in which Lord Neuberger, president of the Supreme Court effectively said that courts had been misinterpreting the law for decades.
In 1984 a Hong Kong case heard in the judicial committee of the privy council declared that foresight of what an accomplice might do was sufficient to prove guilt. This set a precedent commonly referred to as “parasitic accessorial liability” which was followed in British Courts for the next 30 years.
Considering the case of Jogee, Lord Nuberger said that the line of legal reasoning had been wrong and that foresight of what somebody else might do was merely part of the evidence and that a jury must decide whether a secondary party had the necessary intent.
Joint enterprise is a common law legal principle which imputes criminal liability to participants of a criminal enterprise for all that results from that enterprise. For example if several persons participate in an assault against another and know that one of their number is in possession of a knife, that the member of the group intended to use it, and, it is used and inflicts a wound. Then all the participants would be liable to be guilty of wounding regardless of the fact that they neither had possession of the knife or inflicted the injury.
Another commonly used example is a getaway driver during a robbery. Even though he or she didn’t carry a firearm or enter the bank, their knowledge that a robbery was to be committed would render them just as guilty of the offence as those who entered the bank carrying firearms.
Prior to the ruling in Jogee case the prosecution had to prove:
(a) that an act was done by D that in fact assisted the later commission of the offence,
(b) that D did the act deliberately, realising that it was capable of assisting the offence,
(c) that D at the time of doing the act contemplated the commission of the offence by A, i.e. he foresaw it as a “real or substantial risk” or “real possibility,” and
(d) that D when doing the act intended to assist A in what he was doing.
On the 18th February 2016 the Supreme Court decided that the foresee-ability of a real or substancial risk or possibility was wrong and that the prosecution had to prove that D had intended that A would commit the offence.
The Joint Enterprise Not Guilty By Association organisation (Jengba) estimates that there could be as many as 700 individuals whose cases need to be reviewed following the ruling, although the judgement indicated that convictions could only be set aside by seeking exceptional leave from the Court of Appeal to appeal out of time which requires substantial injustice to be demonstrated.
Within a few weeks of the ruling it was reported that the cases against two men accused of murder at the Old Bailey collapsed after defence lawyers successfully argued that there was no case to answer.
It is understood that the cases being heard at the Court of Appeal today are those of 6 men all convicted of murder and received substantial prison terms. Given the incorrect legal principle the court will now have to consider whether their conviction is unsafe and should be quashed and whether they should be retried.
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