Joint enterprise: lifting a flawed dragnet

In the landmark case of R v Jogee, the Supreme Court decided that a ‘wrong turn’ had been taken, and that earlier decisions had ‘unduly widened’ the doctrine of secondary party liability.

That error was corrected by the new judgment – within days, its impact was being felt in the lower courts. As was widely reported, the judge in an ongoing joint enterprise murder trial at the Old Bailey allowed submissions of no case to answer made on behalf of two accused who had played secondary roles in a group ‘ambush’ stabbing. In the light of the restatement of the law, those submissions were unopposed by the Crown Prosecution Service and the two were acquitted.

So is this a sign, as some fear, that the floodgates have now been opened and that anyone being tried or who has been convicted under the old law will walk free? Or is it rather a sign of a restoration of sound legal principles and of those principles being considered on a case-by-case basis?

What has to be examined is what the Jogee decision broadly does (and does not) establish. The crime of murder, of course, carries a mandatory life sentence. That life sentence also applies to a secondary party – who intentionally assists or encourages the principal, sharing his intent.

What was decided in Jogee was that 30 years earlier, secondary party liability had been wrongly widened by equating foresight with intent. The effect of that new doctrine (sometimes called parasitic accessory liability (PAL)) had over a number of years become highly controversial – and had led to the striking anomaly of requiring a lesser intent for proving murder against a secondary party than was required to convict the (often knife-wielding) principal.

The Supreme Court clearly felt that this was bringing the law of murder into disrepute – by overextending its remit, and by reducing the possibility of an often more appropriate manslaughter conviction.

Why this matters comes down to issues of fair labelling and sentencing. Under the pre-Jogee law, secondary parties who had got involved in group incidents - without any intent that the victim should be grievously injured or killed - were liable to be convicted of murder if they foresaw the possibility of the risk of such harm by the JE principal. Such convictions then left the judge no option but to pass a life sentence – even where the justice of the situation cried out for a shorter determinate sentence to properly reflect that lower involvement.

Scores of (mostly) young men who might at worst have been guilty of manslaughter, were labelled as murderers and sent to prison for minimum terms of 20 years or more.

The other side of the coin is also important. Victims’ loved ones are entitled to justice – just as much as those accused of murder. But fears of the opening of floodgates are ill-founded. In Jogee, it was made clear that past convictions based on PAL would not automatically be overturned purely on the basis of the law now being put right. Old cases will need to be examined carefully, as ‘out of time’ appeals will only be allowed if the legal directions given were factually important to the outcome of the particular case.

Why this matters comes down to issues of fair labelling and sentencing

Moreover, the Court of Appeal will be looking for evidence of ‘substantial injustice’ before allowing these cases to come back before it.

There will be many potential appeals which do have merit and in such cases, murder convictions will be overturned. However, the Supreme Court made it clear that some convictions may be replaced by convictions for manslaughter. This is still hugely significant – as many individuals will already have served the equivalent (or more) of the appropriate sentence for manslaughter, and will be eligible for immediate release.

So the Jogee decision, I suggest, should be seen as a reflection of the strength of our legal system, rather than of its weakness. A system which can (albeit belatedly) recognise and correct a fundamental error is ultimately a healthy one. Those directly and intentionally involved in violent attacks will continue to be convicted of murder, whilst those on the periphery will no longer find themselves caught up in the same legally flawed dragnet.

David Bentley QC is a barrister at Doughty Street Chambers specialising in serious and complex crime