Discuss how the law has developed on the area of Joint Association and the contribution from Jogee and Ruddock
R v Jogee (Appellant) Ruddock (Appellant) v The Queen (Respondent) (Jamaica) [2016] UKSC 8 & [2016] UKPC 7;
Introduction
The following will examine how Jogee and Ruddock[1] have reversed the law. This was a landmark appeal which was unanimously granted by the court of appeal portraying a reformation in common law. This concerned the law on joint association. Both men were convicted of murder under the previous infamous doctrine laid down by the Privy Council in Chan Wing-Siu[2]. This was Parasitic Accessory liability (PAL). The term was formulated by Professor Sir John Smith[3] which he advocated was deployed by the privy council in Chan Wing-Siu[4] which went on to be developed in further important cases such as Powell and English[5].
Parasitic Accessory Liability
PAL is the very expression which all these decisions in previous cases above have been judged by. It will be explored as to why academics and legal commentators have long argued that PAL is not a lawful doctrine applied by the courts. This is because the doctrine is applied by the courts without any real stringent reasoning enough to determine whether joint associates have enough mens rea to satisfy cases particularly on murder. “There was no requirement to show intent by the secondary party. The foresee ability of the risk of the principal committing the offence from the point of view of the secondary party is sufficient”[6]. This highlights how easy it was for the prosecution to determine the accessories involvement in the crime.
Before PAL was formulated from the case of Chan[7], the pre judicial rules which were applied by the courts are portrayed in R v Smith[8]. Courts pre PAL took a more rather practical approach to dealing with criminal ventures. R v Smith[9] is an effective demonstration that courts looked at the intention of the secondary party in order to convict, the foresight of the primary committing a more grievous crime is plainly not enough to constitute to the mens rea of grievous bodily harm or murder. The decision held was, “only a person who intended that unlawful and grievously bodily harm should be done would be guilty of murder”[10]. This is a defining decision as it focuses on the intention of the accomplice rather than the accomplice having some foresight that the primary would carry out the second crime. To confirm this was the approach taken by courts in cases on secondary participation, from the decision held in R v Reid[11] it was insufficient to convict him of murder on the basis he had foresight that the principle was to commit murder, this did not result in satisfying the court that it was intention but purely foresight. Therefore, a conviction under manslaughter was a more relevant conviction.
Chan Wing-Siu
Chan Wing-Siu[12] is an important case when it comes to identifying why the law on secondary participation had changed. On May the 31st in 1980 the appellant along with two others had gone to visit the two victims in order to recover some form of debt. While in the process of recovering the debt knives were used and he victims were both stabbed resulting in one death and leaving the second victim with serious injuries. Two of the assailants denied all charges against their name however, the third admitted to using a knife out of self-defence after being attacked by one of the victims first. The defendants went on to claim that the victim had attacked first. However, all three defendants were charged and convicted of murder[13]. The issue which the court was dealing with was whether it would be adequate for the secondary party to be convicted of murder under PAL if they had foreseen a slight possibility that the principle may deviate from the initial joint venture and commit a further more grievous crime than originally planned. This would amount to sufficient mens rea to sustain a conviction. “In Chan Wing-Siu it was held that if two people set out to commit an offence (crime A), and in the course of that joint enterprise one of them (D1) commits another offence (crime B), the second person (D2) is guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as he did. D2’s foresights of that possibility plus his continuation in the enterprise to commit crime A were held sufficient in law to bring crime B within the scope of the conduct for which he is criminally liable, whether or not he intended it”[14]. This highlights the decision which was held from the case. The decision which was held has huge significance in the cases that were to follow as the rules from Chan[15] were to be deemed as the most relevant law in relation to accessorial liability. This was evident in Powell and English[16].
The decision from Chan[17] was developed in R v Powell and English[18]. In an event of murder and joint enterprise, the courts were not interested in seeing the intent of the accessory when the crime was committed. The courts were satisfied if the secondary party had reasonable foresee ability of the principle committing a greater crime than the one originally planned. This reflects how simple it was for an individual to be convicted of murder under the Chan rule because the court would have been satisfied with the forseeability rather than the secondary party actually having the intention to assist or encourage the greater crime. Therefore it was held in R v Powell and English[19], “It is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm”[20].Furthermore to the above two cases, the judgement from Rahman[21] was a further case which had the law of PAL applied on. Rahman was among a group of people who attacked a victim whereby a victim suffered a serious stab wound which eventually caused his death. Due to the intentions of Rahman he was convicted of murder[22]. It is claimed, “Either as a secondary party or a primary party, Rahman intended to cause grievously bodily harm to the victim, which is enough to satisfy the mens rea requirement of murder”[23]. This effectively illustrates how the principles from Chan Wing Sui have been applied in the above cases leading to the conviction of murder simply by the accessory having foreseen ability of the risk. This reflects a very lenient approach when convicting of murder for secondary participants. A clear summary is, “as long as Defendant 2 had intended to support Defendant 1 in committing Crime A, and had foreseen that in the course of committing Crime A, Defendant 1 may also commit Crime B, Defendant 2 could be convicted for Crime B”[24], which demonstrates the lack of stringency shown by courts.
Social Context of PAL
“MPs from the government and opposition parties expressed clear concerns regarding the use of joint enterprise laws. This debate is particularly welcome because the failures that have shaped the problematic use of these laws over the past four decades have been both legal and political.”[25] This identifies the impact the joint enterprise cases were having on society as it drove members in British politics to express their concern of justice being miscarried. MP Chukka Umunna argued in a debate on joint enterprise law in parliament, “the statistics show that 37% of those serving long sentences for joint enterprise are black. That is 11 times the proportion of black people in the population. The figures for people of mixed race are similarly disproportionate”[26], this is supported by the claims made from campaign group, ‘joint enterprise not guilty by association’, they claim, “We now support 650 Joint Enterprise prisoners aged 13 and up, mostly from black and minority ethnic backgrounds.”[27] This raises concerns that the justice system has failed in achieving justice in an equal and fair manner. Further to this, “Baroness Scotland confirmed that three-quarters of the young black male population will soon be on the DNA database”[28], this suggests the increase in the number of young black male being under police records can be due to the higher conviction rates for violent crimes, this is supported by official statistics, “We know that young black people and young people of ‘mixed’ ethnicity, when sentenced, are more likely to receive more punitive sentences than young white people.”[29] Further confirmed by, “Research by Cambridge University’s Institute of Criminology indicates that a disproportionate number of those convicted using joint enterprise law are young black and mixed-race men”[30]. Above evidence reflects the higher conviction rate of those from ethnic backgrounds.
Jogee and Ruddock
Under the law of PAL, individuals were judged as having foresight of the possibility that the primary would go on to committing a further crime which resulted in them satisfying the mens rea and be convicted of murder. Two cases were unanimously granted the right to appeal their conviction on the basis that the court wrongly assumes that mere foresight of a crime is enough to amount to sufficient intention of committing the crime. These individuals were Jogee and Ruddock. Therefore, the primary focus in the appeal which courts reviewed, “the mental element of intent which must be proved when a defendant is being accused of being in a secondary party to a crime”[31].
Jogee was convicted of the murder of Mr Paul Fyfe. On the morning of 10th of June 2011 Jogee along with Hirsi went to Reids home, prior to arriving at Reids home, the two assailants had part taken in activities which involved the heavy consumption of drugs and alcohol, the pre activities left the pair in a major state of intoxication clouding their judgement and distorting their behaviour Upon arriving at Reids house, Reid had strongly condemned they stayed and advise them to leave the property as she was expecting Fyfe to be present at the property, to which both Hirsi and Jogee responded in an aggressive manner expressing they will handle the arrival of Fyfe as they deemed fit. They eventually left the property however, shortly after Hirsi went and returned to Reids home and was present when Fyfe arrived. Reid requested Jogee take Hirsi away which happened, however, they both returned. Hirsi entered into the property which sparked a violent confrontation resulting in the stabbing of Fyfe leading to his death. The stabbing was committed by Hirsi; however, Jogee was outside shouting encouragement of Hirsi to do something to Fyfe[32]. Both Reid and Jogee were convicted of murder.
Ruddock is the second case which had an appeal granted by the court to review the same area of the mental element required. Similar to Jogee, Ruddock was also convicted of murder as a joint associate. Ruddock the appellant was involved in a robbery of a station wagon which belonged to Mr. Robinson, he committed to the robbery along with co-defendant Hudson who eventually killed Robinson by cutting his throat. It was judged by the court that because Ruddock was present he had enough foresight that Robinson would be killed hence he was also charged with murder[33].
The decision from Jogee and Ruddock presents a monumental shift in common law as they decided to judge this area of law from the principles and laws pre Chan. The main feature of PAL is that a defendant can be convicted of the same crime as the principal offender regardless if they had the intention or enough proof to reflect encouragement and assistance of the crime. Therefore, the Supreme Court decided against this doctrine and restated the law on what mens rea is required in order to convict the secondary party of the same crime as the principal offender. Therefore, “the Court held that for a secondary party to be guilty of an offence, he or she must intend to assist or encourage the principal. It will no longer be enough, as had been previously held, for the secondary party merely to foresee that the principal might commit the offence”[34]. With regards to how the previous doctrines and principles have been applied the court believed that it was, “in some respects erroneous reading of the previous case law”[35]. This confirms that, “The mere existence of foresight is no longer conclusive of guilt. A properly directed jury will instead be informed that foresight is evidence upon which intent may be inferred.”[36] This effectively outlines how joint associates will not be convicted of serious punishments linked with crimes that are more severe than the one they initially engaged in. The court further reiterates how the law had been applied incorrectly with particular focus on the issue of foresight, “We consider that the proper course for this court is to re-state, as nearly and clearly as we may, the principles which had been established over many years before the law took a wrong turn. 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”[37], this clearly illustrates how the law had been lenient in merging foresight as the intention to assist commit a crime.
Due to the reversal in law, it is natural for one to assume that previous convictions under the Parasitic accessory liability doctrine would open a floodgate of appeals, paragraph 100 of the judgement sets this stance clear, “The effect of putting the law right is not to render invalid all convictions which were arrived at over many years by faithfully applying the law as laid down in Chan Wing-Siu and in Powell and English”[38]. This undeniably manifests the stance which the court will take towards the previous convictions as it justices itself by claiming that the law would have been correctly applied in previous cases. However, in contrast to this, legal experts believe that, “It seems inevitable, then, that the Court of Appeal (Criminal Division) will soon have to test the correctness of a number of historic convictions, and the Criminal Cases Review Commission may well choose to become involved. The judgment therefore offers potential hope to many who have already been convicted under joint enterprise.”[39] This hereby demonstrates an alternative view point which legal experts believe has the strong likelihood of happening.
Conclusions
Therefore, the above account has effectively portrayed the development of law in the area on secondary participation otherwise known as joint or criminal enterprise. It has identified how the previous legal principles that were applied were a fair and pragmatic approach to judging the particular cases involving this area. The classic legal approach was to determine foresight and intention a vital element in order to determine the mens rea for a crime. However, there was a judicial shift in the approach taken to judge this area. The law was reconstructed in the case of Chan, which was further developed in cases such as R v English and Powell[40]. The judgements from these cases gave birth to ‘the parasitic accessory liability’ doctrine, which was notoriously applied for many years; the stance was changed to the courts having fewer burdens in proving the intention of a secondary party to commit a crime. The courts intertwined foresight with intention which meant that if the accessory had reasonable foresight of the crime taking place, it was enough to be convicted of the same crime that the principal committed. This approach being applied by the courts was met with social outrage on all platforms from members of the public and campaign groups to elected members of parliament who all called out for a review of this law as they believed justice was not being served. Fortuitously for Jogee and Ruddock, they had appealed their convictions under parasitic accessory liability and the appeals were accepted by the courts. The courts were asked to review the law surrounding the mens rea required in order to be convicted of murder. The courts decided that they were convicted unjustly under the former doctrine and had the law reversed which was described as a monumental reversal in common law.
Bibliography
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- Becky Clarke, ‘A Review of the Controversial Joint Enterprise Law Is Long Overdue’ (Thetimes.co.uk, 2018) <https://www.thetimes.co.uk/article/a-review-of-the-controversial-joint-enterprise-law-is-long-overdue-l9rs3j3tm> accessed 27 August 2018.
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[1] R v Jogee [2016] UKSC 8 and Ruddock v The Queen [2016] UKPC 7,
[2] Chan Wing-Siu v R [1985] AC 168,
[3] Law Quarterly Review (Criminal liability of accessories: law and law reform [1997] 113 LQR 453).
[4] Chan Wing-Siu v R [1985] AC 168,
[5] R v Powell and English [1999] 1 AC 1
[6] ‘Regina V Powell (Anthony) And Another; Regina V English: HL 30 Oct 1997 – Swarb.Co.Uk’ (swarb.co.uk, 2018) <https://swarb.co.uk/regina-v-powell-anthony-and-another-regina-v-english-hl-30-oct-1997/> accessed 27 August 2018.
[7] Chan Wing-Siu v R [1985] AC 168,
[8] R v Smith [1963] All ER 597
[9] R v Smith [1963] All ER 597
[10] R v Smith (Wesley) [1964] 128 JP 13, [1963] All ER 597
[11]R v Reid [1975] 62 Cr App Rep 109
[12] Chan Wing-Siu v R [1985] AC 168,
[13] Chan Wing-Siu v R [1985] AC 168,
[14]R v Jogee [2016] UKSC 8 and Ruddock v The Queen [2016] UKPC 7, 2
[15] Chan Wing-Siu v R [1985] AC 168,
[16] R v Powell and English [1999] 1 AC 1
[17] Chan Wing-Siu v R [1985] AC 168,
[18] R v Powell and English [1999] 1 AC 1
[19] R v Powell and English [1999] 1 AC 1
[20] R v Powell and English [1999] 1 AC 1
[21] R v Rahman [2008] UKHL 45; [2009] 1 AC 129
[22] R v Rahman [2008] UKHL 45; [2009] 1 AC 129
[23]R V Rahman [2008] | Case Summary | Webstroke Law’ (Webstroke.co.uk, 2018) <https://webstroke.co.uk/law/cases/r-v-rahman-2008> accessed 27 August 2018.
[24] ‘Supreme Court Ruling Overturns Criminal Law Of Parasitic Accessory Liability – | QLTS School’ (| QLTS School, 2016) <https://www.qlts.com/blog/supreme-court-ruling-overturns-criminal-law-of-parasitic-accessory-liability> accessed 27 August 2018.
[25] Becky Clarke, ‘A Review of the Controversial Joint Enterprise Law Is Long Overdue’ (Thetimes.co.uk, 2018) <https://www.thetimes.co.uk/article/a-review-of-the-controversial-joint-enterprise-law-is-long-overdue-l9rs3j3tm> accessed 27 August 2018.
[26] ‘Joint Enterprise – Hansard’ (Hansard.parliament.uk, 2018) <https://hansard.parliament.uk/commons/2018-01-25/debates/00389B37-64AA-4AC8-BBBB-BE6B98F9C5C1/JointEnterprise> accessed 27 August 2018.
[27] Sally Halsall, ‘The Joint Enterprise Law Has Changed. Yet Still We Must Fight To Free Our Sons | Sally Halsall’ (the Guardian, 2016) <https://www.theguardian.com/commentisfree/2016/sep/07/joint-enterpirse-law-changed-fighting-black-minority-crime> accessed 27 August 2018.
[28] ‘House Of Commons – Home Affairs – Second Report’ (Publications.parliament.uk, 2007) <https://publications.parliament.uk/pa/cm200607/cmselect/cmhaff/181/18105.htm> accessed 27 August 2018.
[29] ‘House Of Commons – Home Affairs – Second Report’ (Publications.parliament.uk, 2007) <https://publications.parliament.uk/pa/cm200607/cmselect/cmhaff/181/18105.htm> accessed 27 August 2018.
[30] Emeka Egbuonu, ‘Joint Enterprise Law Criminalises Young, Black Men. It Urgently Needs Reform’ (the Guardian, 2018) <https://www.theguardian.com/society/2015/sep/22/joint-enterprise-criminalise-young-people-reform-guilt-association> accessed 27 August 2018.
[31] R v Jogee [2016] UKSC 8 and Ruddock v The Queen [2016] UKPC 7, 9
[32] R v Jogee [2016] UKSC 8 and Ruddock v The Queen [2016] UKPC 7
[33] R v Jogee [2016] UKSC 8 and Ruddock v The Queen [2016] UKPC 7
[34] Appeals Barrister, ‘Appeals Barrister | R V Jogee: Joint Enterprise Appeals’ (Appeals Barrister, 2018) <https://appealsbarrister.com/2016/02/18/jogee-joint-enterprise/> accessed 27 August 2018.
[35] R v Jogee [2016] UKSC 8 and Ruddock v The Queen [2016] UKPC 7, 79.
[36] ‘Joint Enterprise: Supreme Court Judgment | Corker Binning’ (Corkerbinning.com, 2018) <https://www.corkerbinning.com/joint-enterprise-reason-restored-in-landmark-supreme-court-judgment-2/> accessed 27 August 2018.
[37] R v Jogee [2016] UKSC 8 and Ruddock v The Queen [2016] UKPC 7, 87
[38] R v Jogee [2016] UKSC 8 and Ruddock v The Queen [2016] UKPC 7, 100
[39] ‘R V Jogee – Supreme Court Re-Writes The Law Of Joint Enterprise – Update From Doughty Street Chambers’ (Doughty-street-chambers.newsweaver.com) <http://doughty-street-chambers.newsweaver.com/flyercampaign/mfkhnqdc7p8> accessed 27 August 2018.
[40] R v Powell and English [1999] 1 AC 1
