Joint enterprise: A failure of the UK legal system?


Rhiannon Graves For Avadis & Co. Solicitors


In a landmark judgement, the Supreme Court ruled this week that the controversial ‘joint enterprise’ law has been misinterpreted since its use in the Privy Council judgement on Chan Wing-Sui  v R [1985][1].

The law, which is part of common law rather than legislation, has become a contentious issue over recent years because of the large number of gang-related killings in which it has been used [2]. Joint enterprise, or ‘parasitic accessorial liability’ (PAL) cases involve more than one participant, and the rules can be used to convict an accomplice who was not directly involved in the murder [3]. In the case of Ameen Jogee, PAL was used to convict Jogee of the murder of Naomi Reed. On the 9th November 2011, Jogee visited Reed with his friend Mohammed Hirsi, intending to take drugs together. During the night, Hirsi stabbed Paul Fyfe (who was in a relationship with Reed), and was apparently encouraged to do so by Jogee. The pair were convicted of murder and given life sentences, despite the fact that Jogee had no physical part in the stabbing [4].

Jogee’s appeal claimed that his foresight of the possibility that Hirsi would stab Reed does not prove his own intention to commit the crime [5]. The PAL principle used to convict him states that if two or more people set out to commit a crime and one participant foresees the possibility that the other may commit another crime (here, the murder of Reed by Hirsi), then both participants can be tried jointly for the second crime. The problem with this is that it greatly increases the scope for murder convictions; an accomplice in one crime can be tried for a murder which they had no intention to commit.

That notion of criminal intention forms the basis of the recent judgement on the case (R v Jogee [2016]). The Supreme Court’s judgement points out the error of the 1984 decision to equate foresight of a crime with its authorisation, and clarifies that foresight is merely evidence of intent, and not proof of guilt. It still remains to decide whether the conviction will be converted to manslaughter or if Jogee will be given a re-trial, but the ruling could have wider repercussions across the UK criminal justice system [6].

Critics of the joint enterprise law have long argued that its use has led to widespread miscarriages of justice, particularly in ethnic communities. A recent report carried out by the Centre for Crime and Justice Studies found that over half the joint enterprise convicts surveyed were from black and minority ethnic (BAME) backgrounds, a much larger proportion than both the general population and the overall prison population. BAME prisoners convicted under joint enterprise also tended to be younger, and to be served longer sentences than their non-BAME counterparts [7].

Deborah Madden, from the Jengba (Joint Enterprise Not Guilty by Association) campaign, welcomes this week’s ruling as a major turning point for UK justice, claiming that over 650 people may be affected by the decision [4]. However, the judgement may not lead to mass releases of prisoners, according to Mr Barraclough, of Liverpool’s Chavasse Court Chambers [8].  The joint enterprise principle also applies when multiple people commit one crime, and this usage is not affected by the new ruling. Lord Neuberger also pointed out in the Supreme

Court judgement that the verdict would not “render invalid all convictions which were arrived at … by faithfully applying the law” as laid down in the 1984 case [9]. An individual convicted under the PLA principle could appeal, but would by no means be automatically cleared; the onus would be on the individual to demonstrate a significant injustice caused by their conviction.

Many of those convicted under joint enterprise are expected to seek legal advice on their appeal options following this week’s ruling [10]. Whether any of these appeals will lead to overturned convictions remains to be seen, but it is clear that the decision will have a dramatic effect on the future of criminal law in the UK.