Facts: At 9:00 am at the Law Faculty, Mr Depressed Law Student and his gang confronted Mr Lecturer. Mr Stressed-Out Law Student came late but was a member of the gang, and wanted to see what was going on. In the ensuing melee, Mr Depressed Law Student struck and killed Mr Lecturer with a Contract Law textbook. Along with other members of the gang, Mr Stressed-Out Law Student was charged with murder under the principle of joint enterprise, even though it was Depressed Law Student who dealt the fatal blow.
Judge: In the matter of Regina v Stressed-Out Law Student, how do you plead?
Stressed-Out Law Student: Not guilty, your Honour.
What should we do?
Well, fortunately for Stressed-Out Law Student, the “Lazy Lawyer’s Charter”[i] of joint enterprise has been given a thorough and well overdue shake up.
Additionally, fellow law students, our studies in criminal joint enterprise might have become that bit easier – good job, Lord Neuberger.
Back to reality, the decision by the Supreme Court to raise the bar in deciding joint enterprise cases has, arguably, untangled a very messy and controversial part of Criminal Law.
What is joint enterprise? Let’s use a hypothetical example: you are planning to mug someone and your partner in crime takes a knife and says that he will use it if anyone tries to put up a fight. If your partner then murdered someone, you too could be convicted of murder under the principle of joint enterprise. It is all about “foresight”. If you could foresee that your partner would use that knife and could cause significant harm, then you too could be convicted of the same crime.
Although there are many earlier cases which demonstrate the doctrine of joint enterprise, it is largely accepted that the modern position of the law, up to the landmark decision in the Supreme Court, was cemented by a Privy Council decision in 1984 in the Chan Wing-Siu Case (from Hong Kong). A gang broke into a house to collect a debt and the occupant attacked them. Two out of the three gang members had knives or knew that knives had been taken to the property. The occupant was stabbed to death and the occupant’s wife was severely injured. All of the gang members were found guilty of murder under the doctrine of joint enterprise. After this ruling, the law of joint enterprise has been widely used in gang-related cases, such as the racially motivated murder of Stephen Lawrence. Some of the members of the gang who murdered Lawrence were successfully charged, prosecuted and convicted in 2011, using the doctrine of joint enterprise. In addition, the shocking case where a father (Mr Newlove) came out of his house to confront some youths and was killed by the injuries sustained when he was attacked, is yet another example where the principle of joint enterprise was used to hand down lengthy jail sentences in gang-related cases.
There are, unfortunately, cases which show that the test for joint enterprise was too broad and did not consider many important factors, such as mental health or vulnerability. Let’s take the famous example of Derek Bentley (immortalised by Christopher Eccleston in the film Let Him Have It). In 1952, two men were running from police after trying to rob a confectionary warehouse. On a roof of a building, Derek Bentley (who had the mental age of 11) was caught by police. His partner in crime turned around with a gun and Derek shouted (which is in dispute), “Let him have it”. Shots were fired, the police officer detaining Derek was injured and a supporting officer was killed. Those fateful words were interpreted as ‘shoot’im’ and not innocent pleas from Derek for his partner to drop the gun. The prosecution used this to demonstrate that there was joint purpose and both were subsequently found guilty of murder. Christopher Craig (the shooter) was only 16 at the time and was too young to be executed. The mentally vulnerable Derek, however, was old enough and was executed for a crime he did not physically commit. A victim of joint enterprise? The public thought so, but it was only until 1998 that Derek was pardoned posthumously[ii].
Step in Lord Neuberger & Co. The Supreme Court on 18th February 2016. It seems this landmark decision has finally cleared up the mess: R v Jogee and Ruddock v The Queen (Jamaica). It was found that the law on joint enterprise was not working satisfactorily. Additionally, because secondary liability is vital to the criminal justice system, the court saw it as a duty to correct any mistakes that may have been made in past decisions.
“It is the responsibility of this court to put the law right”[iii].
The test for joint enterprise had been, simply, that a secondary party could be convicted of the same crime if they had “foresight” of the perpetrator’s (the person who physically committed the crime) intent to commit a crime. This had been a mistake and Lord Neuberger stated that the courts had taken a “wrong turn” in the Chan Wing-Siu Case and had not used the correct test for over 30 years. With gasps from the court, the Supreme Court ruled that the test for joint enterprise needed a higher bar, as to prevent anomalies in the law. It was held that the new test should still include “foresight” but also, most importantly, the intention to encourage or assist in that crime[iv]. Hopefully, this radical change in the law can prevent injustices of the past surfacing again.
This is not to say that lots of convictions will be overturned and that prisoners will now be released. Lord Neuberger & Co stated that this judgement is not retrospective and only if an individual can prove an exceptional and substantial injustice, will they be allowed to appeal their sentence.
Back to our case…
Clerk: Does the jury have a verdict?
Foreman of the Jury: Yes, we the jury have a verdict. We find the defendant, Mr Stressed-Out Law Student, not guilty. There was no foresight nor any intention to assist or encourage in the crime committed.
[i] Eric Allison, ‘Joint Enterprise is an affront to justice – its revision can’t come soon enough’ (The Guardian, 23 February 2016) <http://www.theguardian.com/society/2016/feb/23/joint-enterprise-justice-supreme-court> accessed 5th March 2015.
[iii] R v Jogee and Ruddock v The Queen (Jamaica)  UKSC 8,  WL 00589930.
[iv] BBC Parliament, ‘Supreme Court Judgement – 18/02/2016’ (BBC Parliament, 18 January 2016) <http://www.bbc.co.uk/iplayer/episode/b072vyfw/supreme-court-judgement-18022016> accessed 5 March 2016.