Joint Enterprise press release from the Appellant’s solicitors
18 February 2016
It is important to note that the draft judgment of the Supreme Court was embargoed from all apart from solicitors and counsel until today so our client, Ameen Jogee, and his family only found out about our success this morning. There are also no facilities for Ameen to attend court so his family have authorised us to release this statement:
- We are glad our arguments on the law were accepted by the court and very pleased that the court took this opportunity to correct a grossly erroneous tangent of law and remove “parasitic accessorial liability” (often referred to as “joint enterprise”) from our law.
- The law had incorrectly and unfairly developed to convict secondary parties on the basis of mere “foresight or contemplation” of what someone else might do. This over-criminalised secondary parties, particularly young people like Ameen Jogee.
- The consequence was that people were convicted of serious offences, committed by others, and imprisoned for lengthy periods. Primarily, we suggested to the Court that there should be a return to the foundational law encapsulated in cases before the tangent created by joint enterprise. Our primary submission at the hearing in October 2015 was that the true test for accessorial liability is knowledge of the essential matters of that offence or that type of offence and acts which demonstrate an intention to assist or encourage that offence or that type of offence. Such a formulation can adapt to individuals assisting each other or cases where there is evidence of a common plan. The Supreme Court judgment appears to adopt our submissions.
- We are delighted for Ameen and his family and the many other families of those affected by joint enterprise who have been waiting on this judgment.
- This judgment does not refer in detail to all the material placed before the court so future cases and appeals must take care to ensure that the errors are not repeated.
- Internationally it is vital that the errors created by joint enterprise are also corrected.
- We would like to thank our excellent staff, our team of counsel Felicity Gerry QC and Catarina Sjölin of 36, Bedford Row and Adam Wagner and Diarmuid Laffan of 1 Crown Office Row. We would also like to thank the teams for Mr Ruddock and the interveners (Just for Kids Law and JengBA). Many of the lawyers involved have worked pro bono for all or some of the time on this difficult case.
- A special thank you to Dr Matt Dyson of Trinity College Cambridge whose meticulous research over 500 years of law enabled us to prove what the law was and how it went wrong. Also thank you to Beatrice Krebs from the University of Reading for her comparative work on authorisation which enabled us to place alternative options before the court, and to Professor Luke McNamara from the University of Wollongong whose 2014 paper identified the probability issues from an Australian perspective, which was an important part of this appeal.
- We must now focus on the final orders which are not due for some weeks. The Court is yet to decide what effect its conclusions on the principles of joint enterprise will have on our client’s specific case.
- If you want an easy read on the case, see these 2 blogs by Catarina Sjölin and Felicity Gerry QC for Nottingham Law School: http://blogs.ntu.ac.uk/nlsblog/tag/joint-enterprise/
- In the words of Hon Michael Kirby AC CMG “To hold an accused liable for murder merely on the foresight of a possibility is fundamentally unjust. It may not be truly a fictitious or ‘constructive liability’. But it countenances what is ‘undoubtedly a lesser form of mens rea’. It is a form that is an exception to the normal requirements of criminal liability. And it introduces a serious disharmony in the law, particularly as that law affects the liability of secondary offenders to conviction for murder upon this basis”.
- We started this case looking for an alternative probability test for those who were not accused of direct participation with shared intention, along the way we identified the legal errors which had been perpetuated over many years.
We are glad to have played a role in correcting this unjust law.
[…] You can read the Press Release here. […]
Congratulations. Well done to everyone involved.
John Love – yes, you have misunderstood. The Supreme Court was correcting an error of the common law – that is, a part of the law in which Parliament has not legislated. The law in this area has always been made by judges and has never been made by legislators. So this is a case of judges correcting errors made by other judges.
Geoffrey – no, not necessarily, it would depend on his mens rea/intent. And very likely if this change in the law does prevent him from being convicted of murder, he would nonetheless be convicted of manslaughter, the maximum sentence for which is the same as murder – i.e. life imprisonment.
Why has the HOL / SC avoided this topic for so long?
Many of the cases featured on associated sites seem to be of limited merit,
but several defendant children who have given helpful evidence seem to have been severely punished by judges, on the basis that they could/should have forseen what might happen.
None of this reflects well on the CPS, judges or appellate courts.
Is there any comment, anywhere, on this longstanding reluctance of public authorities to address an obvious unfairness?
Does this mean that the person who “keeps cave” is saved harmless?
While I might agree with the justice of the decision I am concerned that any Court even the Supreme Court can interfere with laws made by the legislation as I thought the job of removing bad laws was for the legislators not the judges who’s function is to interpret the law not make it . Or have I misunderstooid?
See para 85 of the judgment: “the doctrine of secondary liability is a common law doctrine … and, if it has been unduly widened by the courts, it is proper for the courts to correct the error.”
Well done! What a fantastic achievement and so important.
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