The court's decision in Jogee is likely to determine the position in English law for a considerable time and a very clear statement of the law is required. The Ruddock decision will affect the law in Jamaica and possibly well beyond that jurisdiction.
The principal question:
When, in law. may a defendant be convicted on the basis of what is sometimes referred to as "parasitic accessorial liability." It is commonly referred to as "joint enterprise" though there are other forms of joint enterprise liability.
The present law:
The modern law dates from the decision of the Judicial Committee of the Privy Council in Chan Wing-Siu (1984) and this was adopted by the House of Lords in R. v Powell and English (1997).
In A,B,C,D v The Queen Hughes LJ described this form of liability in this way:
"D2 may be guilty of an offence (crime B) that he did not want or intend D1 to commit, providing that he foresaw that D1 might commit it in the course of their common enterprise in crime A."
For example, D1 and D2 embark on robbery (crime A) at a garage but D1 pulls a gun and shoots the cashier (crime B).
Criticism of the law:
The problem is that the judiciary has struggled to define exactly the conduct required on the part of D2 and also the mental element (mens rea) required on D2's part. Exactly what must D2 have foreseen and what degree of foresight is required. This has led to numerous appeals but certainly not to greater clarity. A further criticism is that the law looks at a degree of foresight rather than intent: the two concepts are not the same thing because a person may foresee something but not intend it to happen.
This form of liability is a common law concept that at times results in individuals being sentenced to life imprisonment for murder. The lack of clarity is unacceptable.
The present state of the law was described to the court by Felicity Gerry QC (counsel for Jogee) as "a dog's breakfast." Miss Gerry invited the court to re-express the law in terms of requiring knowledge of the essential elements of the offence committed by the principal (or the type of offence) together with acts that demonstrate an intent to assist or encourage that offence (or type of offence).
There is no doubt at all that there are cases where the application of the present law is seen as harsh and unfair. See the article at BBC 30th January 2015 - The complex case of joint enterprise.
Jogee - the facts:
On the night of 9 June 2011, at around midnight, the appellant (Jogee) and his friend Hirsi visited the house of Naomi Reid ostensibly for the purpose of consuming drugs. During this visit, the appellant picked up a large knife from the kitchen block saying that they should go and stab another man they knew. He was talked down from this and returned the knife. Miss Reid asked them to leave before Paul Fyfe, with whom she was having a sexual relationship, returned. They left. Hirsi returned shortly but was taken away by the appellant an hour later. Both returned together at Miss Reid's home at 2.23am. Hirsi went inside the house. The appellant stayed outside at all stages, close to the front door, purportedly damaging Mr Fyfe's car. There were angry exchanges between Mr Fyfe and Hirsi. Mr Fyfe went upstairs to put some clothes on, whereupon Hirsi went to the kitchen and took the knife. There were further heated exchanges. According to Miss Reid, although Mr Fyfe told them to leave, from outside the appellant threatened to hit Mr Fyfe over the head with the brandy bottle in his hand. The appellant was also "egging" Hirsi on to harm Mr Fyfe. Hirsi then stabbed Mr Fyfe with the kitchen knife resulting in Mr Fyfe's death. The appellant and Hirsi were both subsequently found guilty of murder and sentenced to life imprisonment. The appellant appealed, amongst other grounds, on the basis that, in these circumstances, foresight of a mere possibility that Hirsi would use the kitchen knife with the intention of causing at least serious bodily harm to Mr Fyfe was not enough to found a conviction of murder as against him. The Court of Appeal dismissed this ground of the appeal - see the judgment.
Ruddock - the facts:
A taxi driver was murdered and his car was stolen. The police found the car; a man named Oneil Hudson was in the driver's seat and the appellant was sitting in the back. Mr Hudson later confessed to the murder. The prosecution alleged that the appellant (Ruddock) joined with Mr Hudson in a common design to steal the car, and that during the course of the joint enterprise he tied up the victim before Mr Hudson cut his throat. The appellant's defence was that he got into Mr Hudson's car after working with him as a trader that day. He did not know how Mr Hudson came by the car or that the owner had been murdered. At trial, the prosecution relied on evidence from two police officers that the appellant had made statements admitting his involvement. The appellant denied making these statements and alleged that he was subjected to police brutality while in custody. He was convicted of joint enterprise murder. He contends that his conviction was unsafe because inadmissible evidence was put before the jury and there were defects in the judge's directions on the law.
Watching the case:
The court hearings may be viewed via the UKSC website
Although there has been Justice Committee concern about the state of the law, there has been no Ministerial appetite to bring forward any reform. Ministerial concern arises from their view that strong law is needed to tackle gang violence. This Ministerial concern was raised during the hearing (very late on) by counsel in the Ruddock case. (An example of "common enterprise" and gang violence may be seen in R v Aziz and others  EWCA Crim 2368).
The Justice Committee reported in early 2012 . In late 2014, the Justice Committee issued a follow up report to their 2012 report and called upon the Law Commission to review the law.
The Supreme Court is able to depart from the House of Lords decision in Powell and English. Interestingly, unlike the House of Lords, the Judicial Committee never regarded itself as bound by its previous decisions.
In Jogee, the Supreme Court sat with a panel of five. The Supreme Court's own Panel Numbers Criteria say this:
Criteria to be used when considering whether more than five Justices should sit on a panel.
- If the Court is being asked to depart, or may decide to depart from a previous decision.
- A case of high constitutional importance.
- A case of great public importance.
- A case where a conflict between decisions in the House of Lords, Judicial Committee of the Privy Council and/or the Supreme Court has to be reconciled.
- A case raising an important point in relation to the European Convention on Human Rights.
In 1966 the House of Lords declared itself able to depart from its own previous decisions but it was clear that the power would be used sparingly. This was the subject of a quite recent lecture by James Lee at Inner Temple. The 1966 Practice Direction referred to the "especial need for certainty as to the criminal law."
What if the law is changed?
If the UK Supreme Court alters the common law relating to liability of accessories then it may be that some existing convictions might be the subject of application to the Court of Appeal (Criminal Division) to have the convictions quashed. Unless that is done, the convictions would stand. Whether this is possible in any particular individual case would depend on the how the Supreme Court chose to state the law and also on all the relevant facts of the particular case. Anyone seeking such an appeal will need to obtain expert legal advice.