R v Jogee – A Supreme Court betrayal

The campaign against the joint enterprise doctrine is not over

The consequences of the Supreme Court’s judgment in the case of Ameen Jogee are becoming apparent, and many campaigners and criminal lawyers are delighted.

The Supreme Court surprised many and ruled that the UK courts (including itself) had been wrongly applying the criminal law doctrine of joint enterprise for over 30 years. This judgment was met by sensationalist claims in tabloid newspapers that serious criminals, such as Stephen Lawrence’s killers, could have their convictions overturned.

However, there is one principle that the court has failed to overturn — the rule governing retrospective appeals — and this means that injustice will continue.

Prior to the Supreme Court delivering its judgement, it would have been extremely difficult to find any criminal law solicitor who believed that the current law was just. The law of joint enterprise had stood since 1985, when the Privy Council had held in Chang Wing-Siu that a second defendant would be liable for a further crime (C2) committed by an accomplice to another crime (C1) providing they foresaw a possibility that his accomplice would commit said offence. This created huge injustices and eroded the level of proof so much that it was sometimes argued that it effectively forced the defendant to disprove their foresight rather than vice-versa.

Many had expected the Supreme Court to either confirm that Chang Wing-Siu was correct or simply to raise the level of foresight to “may” commit the crime. However, the Supreme Court stated that the previous law was incorrect and that the idea of foresight being sufficient was wrong. Foresight could be used as evidence of intent but the common intent with the other perpetrator must be established. This was an extremely surprising yet welcome admission by the court on the oddity of the previous law and the injustice caused by it.

There have been far too many controversial applications of the previous law to mention. I work pro bono at the University of Sheffield Miscarriages of Justice Review Centre, and have seen a number of claims for wrongful conviction. The controversy caused by the old law is demonstrated by the fact that the centre is working on several convictions about the joint enterprise doctrine and all have one thing in common: flimsy evidence to suggest a link with the perpetrator of a crime.

The previous justifications for such radically different laws for joint enterprise compared to ordinary criminal law was to protect against so-called ‘gang culture’. While being ‘tough on crime’ is generally a phrase reserved for politicians near election time, this perceived threat was one of the justifications suggested by those (few) legal practitioners who supported the old law and how harsh it was compared to other criminal laws. The rationale was that those who were involved in gangs would all be committing crime together, so the lower level of foreseeability was just.

However, as previously mentioned, the devil is in the detail (or in this case paragraph 100 of the Supreme Court judgment).

The Supreme Court insists that a conviction should stand if the only issue is that the law was interpreted incorrectly. Quite bizarrely, the Supreme Court stated that a conviction can only be overturned if the appellant can demonstrate “substantial injustice” and is clear that the law being mistakenly applied does not constitute a “substantial injustice”!

This statement by the court is both extraordinary and alarming. If being given a life sentence for murder is not “substantial injustice” due to the law being wrongly applied, then what is? One must question how someone being in a prison cell for many years for a crime they did not legally (and in most cases morally) commit cannot be appealed.

Lord Neuberger, in his judgement, stated that:

the courts took a wrong turn in 1984… it is the responsibility of this court to put the law right.

However paragraph 100 makes clear that the Supreme Court feels that it does not have a responsibility to repair the damage resulting from its mistake. This distinction is a complete betrayal of those wrongly convicted under the wrongly applied law and cannot be forgotten about. The result of the decision is certainly a step forward and will prevent such injustice in the future but the campaign against joint enterprise law must continue until all those who were wrongly convicted have their convictions overturned.

It must also be remembered though that the question of how restrictive this requirement is will surely be tested in the Court of Appeal in the near future. Many who are serving or have served sentences for convictions under the joint enterprise doctrine will be attempting to have their cases referred to the Court of Appeal by the Criminal Cases Review Commission (CCRC).

The wording of the ruling by the Supreme Court may appear to be watertight, but the interpretation of the “substantial injustice” requirement will be a key point for the courts to clarify.

The Court of Appeal may even bypass the requirement altogether. One interesting interpretation of how it could do so has been suggested by leading barrister Mark George QC. He suggests that the courts are not changing the law but correcting an error in interpretation. This is a highly optimistic interpretation which is highly unlikely to be followed, but will almost certainly be put to the test in the near future.

The future of the joint enterprise doctrine is looking far fairer since the Supreme Court ruling, although the prevention of retrospective appeals must not be forgotten. The betrayal of those wrongly convicted under the doctrine must not be forgotten and the opposition to the substantial injustice suffered by those serving life sentences must be campaigned against.

The doctrine of joint enterprise will not be in a satisfactory state until those wrongly convicted have their convictions overturned.

Scott Leonard is a final year law student at the University of Sheffield.