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February 22, 2016

Today, the Supreme Court gave judgment in the cases of R v Jogee and Ruddock v The Queen (Jamaica) (2016) UKSC 8 (2016) UKPC 7 confirming that for over 30 years the courts have been guilty of the misinterpretation of the law of joint enterprise. The decision which many practitioners had expected, confirmed that the effect of the law as interpreted and applied in the last three decades, elided foresight with authorisation and resulted in the mens rea required of a secondary party to be less than that of the principal.

In confirming that to be wrong, both morally as well as legally, the Court held that if a person is a party to a violent attack on another, without an intent to assist in the causing of death or really serious harm, but the violence escalates and results in death, he will be not guilty but guilty of manslaughter. In a break from the past 30 years that means that whilst evidence of foresight on behalf of a co-accused in relation to what the principal offender may do, is clearly in some cases, evidence from which a jury may infer an intent to assist or encourage on behalf of the co-accused, it is not in itself sufficient to denote such an intention. This brings the mens rea of the secondary party in line with that of the principal, namely that they cannot be convicted of an offence unless there is proof that they intended that the offence, which was in fact committed, should be committed. Mere foresight of what the other may do is insufficient.

The decision has caused uproar in the press, with headlines forecasting a raft of murder convictions being overturned. However, those wishing to rely upon the judgment should read not only the headlines but also the words of warning detailed at paragraph 100 of the judgment; “…Where a conviction was arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time.” One way around this may be to argue that the law at the time was as actually reinstated by the Supreme Court in today’s decision but that previous courts had misinterpreted it and in the words of Lord Hughes and Lord Thomas, “taken a wrong turn.”

Sarah Regan