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R v Jogee UKSC 8 was a 2016 judgment of the Supreme Court of the United Kingdom that reversed previous case law on joint enterprise. The Supreme Court delivered its ruling jointly with the Judicial Committee of the Privy Council, which was considering an appeal from Jamaica, Ruddock v The Queen UKPC 7.

Facts

On 9 June 2011, Jogee and his co-defendant, Hirsi, spent the evening taking drugs and drinking alcohol causing their behaviour to become increasingly aggressive. Twice during the night the pair visited the house of Naomi Reid who was in a relationship with Paul Fyfe (the deceased). After the second visit Reid sent Jogee a text asking him not to bring Hirsi back to her house but the men returned for a third time only minutes later. By this time the deceased had returned to the house and an angry exchange ensued between him and the two defendants. At 2:30am on 10 June 2011, Jogee was outside shouting encouragement to Hirsi who stabbed and killed the deceased.

Judgment

Crown Court

In a trial at Nottingham Crown Court the judge, Dobbs J, directed the jury as follows: "the appellant (Jogee) guilty of murder if he participated in the attack on the deceased, by encouraging Hirsi, and realised when doing so that Hirsi might use the kitchen knife to stab the deceased with intent to cause him really serious harm". This direction accorded with the standard interpretation of the law regarding joint enterprise in the light of Chan Wing-Siu v The Queen AC 168. On this basis the appellant was found guilty of murder and was sentenced to 20 years in prison.

Court of Appeal

The Court of Appeal approved the reasoning of the trail judge and the law as stated in Chan Wing-Siu. Laws LJ stated that "The mental element, the mens rea, of the secondary party's crime is an appreciation that the primary actor might inflict grievous bodily harm and a willingness to lend his support notwithstanding." Jogee's sentence was, however, reduced from 20 years to 18 years.

Supreme Court

The Supreme Court unanimously held that the law had taken a wrong turning since the decision in Chan Wing-Siu.

In a joint lead judgment by Lords Hughes and Toulson the Supreme Court took the opportunity to re-state the principles on joint enterprise and held that there are two questions that must be asked in order to ascertain the guilt of a defendant: The five judges in that case were privy to the research of Professor Dennis J, Baker in Reinterpreting Criminal Complicity and Inchoate Participation Offences (London: Routledge). The judges and counsel had a copy of the manuscript for that book as well as Baker's other writings on the subject that had already been published in various places and seem to have adopted all three points argued by Baker in his research: 1) all complicity requires either assistance or encouragement for the conduct element, 2) the mental element in complicity is nothing less than intention; 3) foresight was mere evidence for inferring intention in the ancient common purpose complicity scenarios; 4) that foresight only arose in common purpose complicity cases because they involve conditional intention with respect to what the perpetrator might have to do depending on what contingencies arise during the course of jointly perpetrating the underlying joint enterprise.

The ratio of the case is exactly as argued for by Professor Dennis J. Baker in extensive research he has conducted on complicity over many years. Baker's research was presented to all parties in the court including to the judges, so given no one else had ever argued that the common purposes cases always required intention as the fault element and that joint enterprise complicity did not exist as a separate form of complicity, it can be inferred on the balance of probabilities that Baker's research influenced the Supreme Court on these two points. For example, In Dennis J. Baker, Glanville Williams: Textbook of Criminal Law, (London: Sweet & Maxwell, 2015) at paras 17-067--17-069; 17-045; et passim, Baker writes: "“ntil the decision in the House of Lords in R. v. Powell changed the law , the foresight of possibility rule (i.e., the accessory’s foresight of the collateral crime as a possible incident of the underlying joint enterprise), like the probable and natural consequences maxim, was a mere maxim of evidence for inferring that the common purpose extended to the collateral crime.” ... Baker goes on: “I will focus on the rules that have been developed for allowing a jury to infer intention and reckless foresight for the purpose of establishing common purpose complicity. These same rules were traditionally used for inferring intention, but in recent decades they have also been used to infer reckless foresight in common purpose complicity cases. What was a maxim of evidence has been invoked as a substantive fault element in complicity since 1999, which has had the effect of extending the mental element in common purpose complicity to cover recklessness. Traditionally, the maxim that a person intends the foreseen consequences of her actions was used in common purpose complicity only to infer that the accessory authorised and thus intended or conditionally intended to encourage the perpetrator to perpetrate the (conditional) collateral crime. A crime as a foreseen collateral crime of an underlying joint enterprise was merely evidence from which an accessory’s intention or conditional intention that the perpetrator perpetrate the collateral crime could be inferred. Foresight was not a substantive fault element, but merely a maxim of evidence.” Furthermore, Baker in the Glanville Williams Textbook of Criminal Law published in September 2015, wrote: “However, the courts have run into error by failing to see that contemplation or foresight of the potential conditional crimes is a special requirement in complicity liability, because the accessory’s liability is contingent on the perpetrator’s future criminal choices. At the time when the assistance or encouragement is given, the commission of the anticipated crime is in futuro. Foresight or contemplation is an issue because the jury has to ascertain whether the accessory intended to assist or encourage the perpetrator’s particular future offending when she did her act of assistance or encouragement. When the accessory provides assistance or encouragement with full knowledge of the alternative crimes that the perpetrator conditionally intends to perpetrate in alternative to each other, the jury is able to infer that the accessory conditionally intended to assist or encourage whichever crime within the particular range was perpetrated.” “ will not be liable unless factual participation can be established. The courts have tended to overlook this requirement. Accessorial liability derives from the accessory’s factual involvement in the perpetrator’s offending. On derivative principles the accessory is liable only if she in fact participates in the primary offending. A person cannot be derivatively involved in the crime of another merely because she associated with the perpetrator in circumstances where she foresaw the perpetrator might commit a collateral crime. In the case of common purpose complicity, it has to be established that the accessory, by her conduct of participating in the underlying criminal joint enterprise, did in fact encourage the perpetrator to perpetrate the collateral crime. There might be sufficient evidence for a jury to infer that the accessory encouraged the perpetrator by voluntarily agreeing to participate in the underlying criminal joint enterprise, if it can also be established that there was a mutual expectation that certain conditional collateral crimes would be perpetrated to make their underlying criminal joint enterprise succeed. Alternatively, it might be shown that the perpetrator was encouraged by the fact that she knew that that accessory approved of his (conditional) collateral crimes and willingly participated in the underlying enterprise knowing those crimes where conditionally intended." Baker also famously put this theory forward in his article entitled: Baker, Dennis J, Foresight in Common Purpose Complicity/Joint Enterprise Complicity: It Is a Maxim of Evidence, Not a Substantive Fault Element (October 10, 2012). Dennis J. Baker (Draft Chapter (2013/14): Reinterpreting Criminal Complicity, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2507529. The title of Baker's paper is basically part of the ratio of R v Jogee as far as the mental element is concerned. Likewise, in the same paper Baker argued that all complicity required factual assistance or encouragement and that joint enterprises were just another way of encouraging and thus there was no separate form of complicity based on mere association and foresight. These were bold arguments and Baker was on his own, because most other academic commentators took the view that joint enterprise did exist even though it was unfair. David Ormerod and Karl Laird, Smith and Hogan Criminal Law, (Oxford University Press, 2015) at 238. And some thought it even just: see A. P. Simester, The Mental Element in Complicity, 122 L.Q.R. 578, 598-599 (2006); Jeremy Horder and David Hughes, Joint Criminal Ventures and Murder: The Prospects for Law Reform, 20 KING’S L.J. 379, 398 (2009);G.R. Sullivan, Doing Without Complicity, J. COMMONWEALTH CRIM. L. 199, 206 (2012). See also Baker, Dennis J, Reinterpreting the Mental Element in Criminal Complicity: Change of Normative Position Theory Cannot Rationalize the Current Law (February 4, 2015). Law & Psychology Review, Vol. 40, 2016,

1. Did the defendant assist or encourage the commission of the crime?
2. In this assistance or encouragement, did the defendant act with the requisite mental element of that offence?

To elaborate on this point their Lordships gave an example: a defendant encourages the principal to take another person's bicycle and then return it after use but the principal in fact keeps the bicycle. In this scenario the principal will be guilty of theft but the defendant will only be guilty of the lesser offence of unauthorised taking because he has not encouraged the principal to act with the intent to permanently deprive (the mens rea of theft).

Significance

The judgment has been described as "a call for prosecutors, judges and juries to return to the close consideration of the evidence before them without the crutch of a blunt principle". In a similar vein the judges in the case noted that there should not be an over-reliance on the weapon that is being carried by the principal. The weapon involved is a relevant piece of evidence but should be viewed as part of the wider context of the case.

The Sun reported that hundreds of convicted killers may appeal following the decision in this case. However, Lord Neuberger explained that this was unlikely to happen:

"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."

Reaction

Charlotte Henry's brother was convicted under the Chan Wing-Siu interpretation of joint enterprise. She reacted to the judgment by saying "When the judgment was delivered I heard everyone catch their breath. My mother fell into uncontrollable sobs of relief. Finally we are hopeful that my brother will come home and we will be a family again."

The wife of the deceased in the case said that she was "shocked and devastated" by the decision.

See also

• Criminal law of England
• Joint enterprise
• 2016 Judgments of the Supreme Court of the United Kingdom

References

1. UKSC 8. Paragraph .
2. Buchan, Rebecca (19 February 2016). "'The man who killed my brother could walk free from prison'". The Press and Journal. Retrieved 22 February 2016.
3. "Man 'Licked Bloodied Knife Blade And Laughed' After Stabbing Ex-Policeman, Court Hears". The Huffington Post. 16 March 2012. Retrieved 22 February 2016.
4. UKSC 8. Paragraph .
5. UKSC 8. Paragraph .
6. UKSC 8. Paragraph .
7. "CHAN WING-SIU -V- THE QUEEN; PC 21 JUN 1984". swarb.co.uk. 9 July 2015. Retrieved 22 February 2016.
8. "Man challenges 'joint enterprise' murder conviction in supreme court". The Guardian. 27 October 2015. Retrieved 22 February 2016.
9. EWCA Crim 1433. Paragraph
10. "Joint enterprise law has been 'wrongly interpreted', Supreme Court rules". ITV. 18 February 2016. Retrieved 22 February 2016.
11. Fagan, Ciaran (18 February 2016). "Police killer Ameen Jogee to face retrial for murder or a lesser conviction". Leicester Mercury. Retrieved 22 February 2016.
12. UKSC 8. Paragraph .
13. UKSC 8. Paragraph .
14. UKSC 8. Paragraph .
15. Laffan, Diarmaid (18 February 2016). "Supreme Court abolishes "wrong turn" Joint Enterprise law". UK Human Rights Blog. Retrieved 23 February 2016.
16. UKSC 8. Paragraph .
17. Christie, Sam (18 February 2016). "500 convicted killers could be FREED after ruling that law has been 'wrongly interpreted' for 30 years". The Sun. Retrieved 23 February 2016.
18. 2016 UKSC 8, paragraph 100.
19. Henry, Charlotte (18 February 2016). "My brother got 19 years' jail on a joint enterprise conviction. Now we want him home". The Guardian. Retrieved 23 February 2016.
20. Walton, Gregory; Rayner, Gordon (18 February 2016). "Victims' families 'devastated' by Supreme Court ruling on joint enterprise". The Daily Telegraph. Retrieved 23 February 2016.

External links

• Supreme Court judgment
• Video of the judgment

• Supreme Court of the United Kingdom cases
• 2016 in British law
• 2016 in case law
• English criminal law