Case in Focus: R v Jogee [2016] UKSC 8 - The new law on Joint Enterprise

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 18^th 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

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.