On 18 February 2016, in R v Jogee; Ruddock v The Queen [2016] UKSC 8
the Supreme Court ruled that the law on secondary liability, part of the
law on joint enterprise, has been wrongly decided since 1985. The decision
concerns a murder case, as does the majority of case law decided under
secondary liability. In this very short blog post, I aim to explain the
position of the law the Supreme Court has reversed, the current position and
the potential impact of the decision.
Facts of Jogee
Ameen Jogee and his co-defendant Mohammed
Hirsi were friends. On the night of the offence, they had drank alcohol and
taken drugs with Naomi Reed at her house. The alcohol and drugs made both both
Jogee and Hirsi aggressive. They left the house, but Jogee and Hirsi returned where Reed asked them to leave as her boyfriend Paul Fyfe was coming home. The pair left
but again returned, and on the the third visit, Fyfe came home, and an
aggressive exchange ensued between Hirsi and Fyfe. Whilst Jogee was outside the
house, he shouted encouragement to Hirsi, who stabbed Fyfe with a kitchen
knife, killing him. Jogee was found guilty of murder under the doctrine of
joint enterprise, where he received a mandatory life sentence.
The old position
The scenario covered by this area
of secondary liability is where a person commits an offence (usually murder),
and is charged with that offence, but a secondary party is
also charged with murder as they had ‘assisted or encouraged’ the act. This is
so despite the secondary party not having committed the act which killed the
victim.
Using the same example of murder,
the old position established in Chang
Wing-Siu v The Queen [1985] AC 168 was that if the secondary party
‘assisted or encouraged’ the act, and by doing so foresaw the primary party
might possibly intend to cause serious harm or death, then the secondary party
would be guilty of murder as well. There is an unusual discrepancy in this
approach, as for the murderer himself to be guilty, he had to intend to cause
serious harm or death, but for the secondary party, it was only required that
he had foreseen a possibility of either serious harm or death committed by the
primary party.
The new position
The Supreme Court reversed the
decision in Chang Wing-Siu, which
means that the law from 18th February 2016 will require either two
things to be guilty in a case of joint liability in the scenario described. The
secondary party must intend to cause serious harm or death, or he intended to
assist or encourage the primary party to inflict serious harm or death. The
Supreme Court sets this out at paragraphs 89 and 90 of the judgement. In short,
the decision removes the element that the secondary party can merely foresee
the primary party committing serious harm or death.
The full judgement can be found here:
https://www.supremecourt.uk/cases/docs/uksc-2015-0015-judgment.pdf
The full judgement can be found here:
https://www.supremecourt.uk/cases/docs/uksc-2015-0015-judgment.pdf
Consequences for
appeals
Whilst for some cases tried after
the ruling in Jogee, the
ramifications are clear in the sense that some will be found not guilty of
murder on the new test, in most cases, it is likely a charge of manslaughter
will be found in the alternative. Where a secondary party is involved in
violence, but lacks the intention to commit serious harm or death, yet death
still results, the secondary party is likely to be found guilty of
manslaughter. The change in the law is still significant however, as there is a
mandatory life sentence for murder, whereas there is considerable discretion
for a sentence for manslaughter, though a life sentence is still available.
The Supreme Court makes makes
clear in paragraph 100 that previous convictions based on the joint enterprise
position set out in Chang Wing-Siu are
highly unlikely to be overturned since they will be out of time. The procedural
rules for bringing an appeal to the Court of Appeal require written notice to
be given within 28 days of conviction. The Supreme Court also points out that
whilst an appeal can be brought out of time if a defendant can show there was
‘substantial injustice’, ‘substantial injustice’ is not made out simply because
a decision has declared the law applied in their case to be mistaken.
Therefore, the decision will most
likely just apply to future secondary liability cases, secondary liability
cases that have resulted in conviction 28 days prior to the decision in Jogee and an out of time secondary liability case that can successfully establish a
‘substantial injustice’. Even where a successful appeal is brought in the
latter of the two scenarios, it is likely that a retrial for murder and/or
manslaughter will take place.
Conclusion
The significance of the decision
should not be understated, as Jogee corrects
a position that many would argue was both strange and unfair. Whilst the impact
of the decision for old cases convicted on the basis of Chang Wing-Siu might have difficulty appealing convictions through
establishing ‘substantial injustice’, the decision will have the largest effect
on future cases; those who would have faced a test which was far easier to fall foul of, and would receive a mandatory life sentence as a result.
