Is this the end of policy driven decisions?
Yesterday saw the long awaited judgment in the case of R v Jogee; Ruddock v The Queen handed down. Its effect has provoked widespread commentary in all forms of media; for this is the one pronouncement of the Supreme Court that will most directly affect criminal trials which more and more commonly involve multiple defendants and the doctrine of joint enterprise.
For some the ruling brought relief; for the past years have seen the growth of a number of groups who have campaigned for change such as JeNGbA ( Joint Enterprise not guilty by association). For others, it has been characterised as a charter to ‘get away with murder’.
The clear view of the Court was that the law has departed from the correct application of the principles of joint enterprise. The ruling and the correction of the error made following what the court described as ” the law took a wrong turn”, seek to identify the error and to eliminate it. The error is identified in but a few words “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……. What was illegitimate was to treat foresight as an inevitable yardstick of common purpose”.
How then has the identified error affected liability in cases involving allegations where two or more persons are parties to the same crime?
The Supreme Court’s ruling in R v Jogee; Ruddock v The Queen may see an end to what can be viewed as policy-driven development of the law on homicide. The thirty years that have elapsed since Chan Wing-Siu have seen a rise in the commission of crime by multiple offenders. There have been many recent cases, such as the killing of Sofayen Belammudin in Victoria Station in 2010, that saw a group of 20 teenagers charged with his murder. Has a public desire to see an extension of criminal responsibility for crimes committed by groups of people contributed to the identified error made of equating foresight with an intent to assist the principal?
The UK would not be the only jurisdiction to see the extension of criminal liability in joint enterprise. In the USA the doctrine of ‘ bad heart malice’ provides a foundation for conviction of members of a group or gang in violent confrontations.
For many the case of R v Gnango, a Supreme Court judgement from a different constitution, represented a concerning extension of liability for murder. It fixed A, involved in exchange of gunfire with an enemy B, with liability for the unintended death of a person caught in the cross fire. Each party had an equal and opposite intent, to cause really serious harm or death to the other party and it was argued, their actions could not be said to be those of joint enterprise. The five man Court of Appeal ( including Lord Hughes) agreed with those submission; however the Supreme Court ruled that A and B had both been parties to an offence of affray and such was a sufficient joint act to found liability.
Have we now seen the end of policy driven decision?
We hope that the answer is yes.
The acknowledgement by the Supreme Court that the law took a wrong turn in Chan Wing-Siu is significant. The identified error was that mere foresight by D2 of the possibility that D1 might commit crime B was sufficient to make him guilty of that offence as well. The Privy Council in Chan Wing-Siu had wrongly conflated foresight of a crime and authorisation of it, and in doing so altered the previous position and reduced the requisite mens rea. This created the anomalous situation that D1, the principal, would have to intend at least really serious harm to be guilty of murder, while D2 need only foresee it as a possibility.
It is this aspect that has prompted most concern; indeed the court characterised it as “the rule brings the striking anomaly of requiring a lower mental threashold for guilt in the case of the accessory than in the case of the principal’.
WIth the error identified, the law now is clearly stated in Jogee.
The first question is whether D2 ‘was in fact a participant, that is, whether he assisted or encouraged the commission of [crime B, which] may include providing support by contributing to the force of numbers in a hostile confrontation’.
The second, crucial, issue is whether D2 ‘intended to encourage or assist D1 to commit [crime B], acting with whatever mental element the offence requires of D1’. Where murder is alleged, ‘the Crown must prove that D2 intended that the victim should suffer grievous bodily harm at least’, and/or that ‘D2 intended to assist D1 to act with the requisite intent’.
The Court observed that the jury will frequently have to decide whether the shared intention to commit crime A included a shared intention to commit crime B if the occasion arose; for example where men go armed with loaded handguns to a robbery hoping that they will not have to use them but intending that if they met resistance then they should use them to do grievous bodily harm at least. There should not as a rule be any need for the sort of focus on D2’s knowledge of what weapon D1 might be carrying; the question is whether D2 intended to assist in crime B. The Court stressed that evidence of foresight by D2 that D1 may commit crime B is evidence of an intent to assist him in commission of that crime but it is not conclusive.
Prior to yeserday’s ruling in Jogee, the consequences of the extension of liability caused by the error of interpretation of the law were that in cases of homicide, that a legally sound conviction for manslaughter, or some other suitable and substantiated offence was somehow insufficient to mark the actions in question and that the common law must be stretched beyond endurance to allow a conviction for murder. This is despite the fact that sentence for that offence is at large.
There can be no doubt that this ruling will have dramatic consequences in the sadly frequent cases where a group go out to rob or assault and death results. The Supreme Court have made some efforts to prevent a flood of appeals with the usual warning in paragraph 100 of the judgment, that a correction to the law does not mean that all convictions under the previous law are unsafe, and that those outside the time limit for appealing require the exceptional leave of the Court of Appeal to challenge them out of time.
However, it is difficult to resist the conclusion that there would be ‘substantial injustice’ envisaged by the Supreme Court, in allowing convictions to stand in the cases where the jury’s conclusion will plainly have been affected by a direction that foresight is sufficient for a conviction.
One thing is certain: the CCRC are likely to be very busy over the coming year.