Joint enterprise: rectifying law or opening floodgates?

On 18th February 2016 the Supreme Court reversed a notoriously problematic area of law in the judgement R. v. Jogee [2016] UKSC 8. The judgment marked a shift from the much criticized common law doctrine of joint enterprise. The Court ruled that foresight is evidence upon which intent may be inferred. It should not be substituted for evidence of intention (see paragraph 87). So a secondary party must now intend the offence carried out by the primary party before they can be convicted of it.

Prior to this decision, the doctrine established in the Privy Council’s decision in Chan Wing-Siu v The Queen [1985] AC 168 and developed in the House of Lords’ decision in R v Powell and R v English [1999] 1 AC 1, was suitably coined “parasitic accessory liability”.  The existence of foresight was sufficient in law to convict a secondary of a criminal offence without the requirement to show intent of committing the crime. “If two people set out to commit an offence (crime A), and in the course of that joint enterprise one of them (D1) commits another offence (crime B), the second person (D2) is guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as he did.” Effectively meaning there was a lower mental threshold for guilt in the case of the accessory than in the case of the principal. Jogee rectifies this by removing the lower threshold.

The ruling caused a media frenzy with reports that murderers will walk free and the Supreme Court has opened the floodgates for numerous historic appeals. The Supreme Court demonstrated they would not allow this. Those convicted under the old regime will have to show they have suffered ‘substantial injustice’ before being given leave to appeal. This is intended to be a high test. The meaning of substantial injustice will be a crucial point of clarification by courts.

“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).

It remains to be seen whether the Court of Appeal floodgates will be tested. Criminal Case Review has said that Jorgee may have a significant impact on its work. The key test is likely to be how a particular case relates to the facts in Jorgee. This will need to be determined on a case-by-case and fact-by-fact basis. The result being that it is unlikely floodgates will be opened.