Joint Enterprise – Regina v Jogee, Ruddock v The Queen 2016
By Leonie Campbell-King
Published on July 20, 2016
You are sixteen. You are aware that your friends have been involved in fights before, although you have never participated. During a visit to the park one day, your friends get into an altercation with some other boys. You are not involved. One friend chases the boys and, out of your sight, without warning and unbeknown to you (you’ve remained in the park), stabs one of them to death.
At this moment, the fact that you joined your friends in the park on a summer’s day determines your guilt for manslaughter. Foresight that death might occur would not be enough to convict your friend wielding the knife that killed the victim of murder. However, until February 2016, an awareness that your friends have previously been involved in fights would be sufficient to send you to jail for murder or manslaughter on the basis of joint enterprise. These are the facts upon which 16-year-old Edward Conteh was convicted for manslaughter using the doctrine in 2011.
Joint enterprise (also known as secondary or accessory liability) is a common law principle relating to the law of complicity. Over time it has morphed into a blunt and illogical tool used to tackle and deter ‘gang violence’. This approach, motivated in part by misguided policy considerations, was expressly frowned upon in the Justice Committee First Report on Joint Enterprise in 2012.
As explained in Regina v A and others there exists “at least three related but not identical situations” in which joint enterprise manifests within the criminal law. One of these three situations arose in the Privy Council case Chan Win-Sui v The Queen, where the principle was espoused as follows: the foreseeability by one of the offences committed by another where these parties are allegedly acting with common design is enough to warrant a conviction. This interpretation of joint enterprise is responsible for the imprisonment of many who were accused of murder or manslaughter but lacked a violent intent.
In the case of R v Jogee, (conjoined appeal with the Privy Council case Ruddock v The Queen), the Supreme Court disapproved Chan and reasserted that foresight is not tantamount to intention. In doing so, they re-established the prior understanding of joint enterprise, bringing this common law principle back into line with legislation and common sense. Mr Jogee, originally convicted for murder on the basis of secondary liability, won the right to a retrial after his conviction was quashed on 7 April 2016 – his retrial is currently pending.
The Jogee ruling has the potential to open the floodgates to requests for a retrial to thousands of prisoners convicted on the basis of Chan since 1985. Although the Supreme Court was clear that substantial grounds must be provided with regard to out of time appeals (e.g. see R. v Rigby (Sidney William), there have already been subsequent cases of no submission regarding pending trials.
This welcomed ruling is applicable to England, Wales, Northern Ireland, the Commonwealth (subject to qualifications) and UK overseas territories and Crown dependencies.
Joint enterprise was originally concocted to deter support for duellists. The principle of secondary liability has since been enshrined in section 8 of the Accessories and Abettors Act 1861 (as amended), which provides that:
“Whosoever shall aid, abet, counsel or procure the commission of any indictable offence…shall be liable to be tried, indicted and punished as a principal offender.” Section 44(2) of the Serious Crime Act 2007 states that the second defendant “is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act”.
However, common law interpretation of the principle of joint enterprise has since gone beyond, and often against, legislation. As expressed by Lord Justice Toulson in R. v Stringer “Joint enterprise is not a legal term of art”. This was reiterated by Lord Hughes and Lord Toulson in Jogee.
Rather, joint enterprise is an expression used to describe a broad range of factually sensitive circumstances pertaining to the law of complicity.
The conduct element necessary to apply the principle of joint enterprise requires the second defendant (“D2”) to have encouraged or assisted the commission of the offence by the first defendant (“D1”). In the late 20th century the mental element was understood to require that D2 intended to encourage or assist D1 to act with the intent necessary to commit the primary offence.
The mens rea of murder has two possible limbs and, as enunciated by E.Coke, it may be “either expressed by the party, or implied by law”. Firstly it may be a direct intention to cause death or grievous bodily harm (“GBH”). GBH is defined as serious harm, but there is no requirement that this harm be endangering to life (R v Cunningham). Secondly it may be an indirect (oblique) intent as laid down in the leading case R v Woollin:
“[T]hat death or serious bodily harm had been a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant had appreciated that such was the case”.
Where joint enterprise relates to murder, both D1 and D2 would be liable for murder if D2 intended to encourage or assist D1 to cause death or GBH, and for D1 to do so with the mens rea required for murder. This is the case even if D1 would have committed murder without D2’s input (subject to considerations relating to time and distance between this assistance/encouragement and D1’s offence ). This is a simple enough concept when there are numerous defendants in clear concert. But what was the position where the existence of assistance or encouragement is unclear, for example, where D2 is present but silent?
Chan solidified a different and problematic approach to the interpretation of joint enterprise. Delivering the judgment, Sir Robin Cooke stated that where a crime is “foreseen as a possible incident of the common unlawful enterprise” then “the criminal culpability lies in participating in the venture with that foresight”. That is to say that D2 would incur liability where the act committed by D1 was of the type D2 foresaw, even if he did not necessarily intend it, and D2 participated nonetheless. The test of foresight is a subjective one.
The Privy Council approved the Crown’s submissions that there were strong public policy considerations justifying this application of the joint enterprise principle. Sir Robin Cook stated:
“Where a man lends himself to a criminal enterprise knowing that potentially murderous weapons are to be carried, and in the event they are in fact used by his partner with an intent sufficient for murder, he should not escape the consequences by reliance upon a nuance of prior assessment, only too likely to have been optimistic.”
In R v Powell, Lord Steyn further elaborated on public policy reasons to maintain this interpretation, stating that:
“Experience has shown that joint criminal enterprises only too readily escalate into the commission of greater offences. In order to deal with this important social problem the accessory principle is needed and cannot be abolished or relaxed”.
The effect of the Privy Council’s interpretation was an illogical mismatch: foreseeability of death or grievous bodily harm was not of itself enough to convict D1 of murder, but was deemed sufficient to convict D2 on the basis of joint enterprise. It also posed the question as to how to determine subjective foresight. In numerous cases since Chan it has been inferred from being present at a fight between D1 and another, even where D2 is eligible to be registered blind and arguably could not have seen this fight take place. Such was the case in the murder of Garry Newlove, kicked to death in Warrington. One of the defendants, Jordan Cunliffe, nearly sixteen years old with no prior convictions for violence, gave evidence at trial that, although he had joined his co-defendants that night, he only did so after the attack on the deceased had already commenced and had not played a material part in the killing. Although the prosecution accepted that the defendant suffered from a degenerative eye condition, he was convicted and subsequently sentenced to custody for life with a minimum tariff of twelve years. The case has been subject to both an unsuccessful out of time appeal against conviction (R v Jordan Cunliffe) and a judicial review on grounds of procedural impropriety regarding sentence (R. (on the application of Cunliffe) v Secretary of State for Justice).
In Edward Conteh’s case (referred to in the opening paragraph of this piece), the fact that he was aware that his friends had knives (despite not having one himself) and his presence at the park, even though the stabbing did not take place there, was deemed to amount to sufficient foresight and encouragement so as to justify a conviction of manslaughter and sentence the child to seven years imprisonment.
In Jogee (Felicity Gerry QC leading counsel), the Supreme Court looked back over decades of case law and concluded that the principle of joint enterprise as espoused in Chan and subsequent cases was wrongly interpreted:
“[T]he introduction of the principle [in Chan] was based on an incomplete, and in some respects erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments.”
The Justices went on to state that “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”. Thus, foresight alone of death or serious injury is not sufficient mens rea for a conviction of murder on the basis of secondary liability. However, the fact that this result was foreseeable may be used as an evidential basis to substantiate an allegation that the second defendant intended to encourage and assist the murderous act. The key here is that it is evidence and evidence alone. The Justices gave five reasons as to why it was important to set the principle back on course, including the following :
1. the adoption of foresight as a test for the mens rea of murder has resulted in an over-extension of murder and a reduction of the law of manslaughter; 2. the Chan interpretation, where there is a lower mental threshold for guilt in the case of D2 than D1, results in an anomaly; and
3. the doctrine is one of common law, and if it has been unduly widened by the courts it is proper for the courts to correct the error.
Problem with Chan interpretation
There are numerous problems with the Chan interpretation of joint enterprise, but we shall focus on one. Years of this over-extended interpretation of the principle have made joint enterprise a blunt tool used against what is perceived to be ‘gang crime’. In clear-cut cases of assistance or encouragement it has long been an important and useful principle of the common law. This is not the matter of contention. But in cases where bystanders have been labelled gang members, it has been responsible for the conviction of teenagers such as Edward Conteh with the pretence or guise of preventing so-called gang crime. Under Chan, by choosing to spend time with those whom you know to have violent tendencies, you had fulfilled the subjective test of foresight regarding secondary liability for any violence that might ensue.
The government does not collect statistics on joint enterprise convictions (something categorically condemned in the Justice Committee’s Second Report), but in their evidence to the Parliamentary Committee, JENGbA (an organisation campaigning to reform joint enterprise and who acted as interveners in Jogee as represented by Timothy Moloney QC) stated that nearly all of those convicted through joint enterprise who had contacted JENGbA were from working class backgrounds. A Cambridge research sample showed that 37.2% of those serving very long terms for convictions on the basis of joint enterprise are black; a startling figure given that black prisoners only make up 13.7% of the prison population in England and Wales. A similar trend is present amongst mixed-race prisoners.
Accordingly, the 20th century interpretation of joint enterprise can be perceived (with legitimacy) as a tool that discriminates against those from certain backgrounds, whom consequently can incur guilt for murder or manslaughter because of where they have grown up and those they went to school with, despite having absolutely no intention for serious harm of any kind to take place. Where D2 is not a gang-member and is not involved in gang-violence, does their conviction fit with the policy considerations given in cases such as Chan?
Jogee marks a positive change for future cases, although the Justices stated that a correction to the law did not mean every past conviction under Chan is unsafe. However, on 7 April 2016 the Supreme Court issued an order directing that Ameen Jogee be retried on the charge of murder. One of the five reasons given by the Supreme Court was that the understanding laid down in Chan of the mental element required for a conviction based on secondary liability resulted in an unreliable jury direction. Research by the Bureau of Investigative Journalism shows that in years between 2006 and 2014 nearly one fifth of all murder cases have been prosecuted under joint enterprise. The potential scale for appeal is enormous. The decision in Jogee opens the floodgates to further appeals, and hopefully justice.
Leonie Campbell-King studied law at UCL before working at diversity focused recruitment company Rare Recruitment. She is currently a trainee at a magic circle law firm.
Article picture: Pixabay