Criminal lawyers who’ve had to grapple with the “wrong turn” taken by five senior judges in London when they decided a murder appeal from Hong Kong in 1984 will be mightily relieved to hear that the UK supreme court has now put the law right.
What the privy council judges decided more than 30 years ago was that if two people set out to commit an offence (crime A) – and in the course of it one of them commits a different crime (crime B) – the second person is guilty as an accessory to crime B if he foresaw it as a possibility but did not necessarily intend it.
The judges’ error in 1984 was to equate foresight with intent to assist. The correct approach, according to the supreme court, is to treat foresight as evidence of intent.
So there may be some cases in future where gang members will no longer be convicted of murder under long-standing principles of joint enterprise. As the supreme court said: “In cases where there is a more or less spontaneous outbreak of multihanded violence, the evidence may be too nebulous for the jury to find that there was some form of agreement, express or tacit.”
But there will be other cases where gangs will be convicted as before. If the jury is satisfied that there was an agreed common purpose to commit crime A – and if it is satisfied that a gang member must have foreseen that, in the course of committing crime A, the gang leader might well commit crime B, the jury may be justified in drawing the conclusion that the gang member had the necessary conditional intent that crime B should be committed.
So last year’s submission by counsel for Ameen Jogee that he should not have been convicted of either murder or manslaughter was “hopeless”, the supreme court said. He was guilty of manslaughter at the very least. Prosecutors would have to decide whether to seek a retrial for murder or accept a guilty plea to manslaughter if one was offered.
It’s important to understand that the case has no bearing on the first two types of joint enterprise summarised by the Crown Prosecution Service: where two or more people join in committing a single crime, and where a defendant assists or encourages the principal offender to commit a single crime.
It’s also important to understand that we are not going to see large numbers of people walking out of prison as a result of this ruling. As the supreme court said, “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 the 1984 case.
An appeal might be allowed if substantial injustice was demonstrated, but a convicted person would not be cleared simply because the law that was applied at the time of the conviction was subsequently found to have been mistaken.
As Lord Neuberger, president of the supreme court, said in his summary of the unanimous judgment, the effect of the ruling “is to bring the mental element required of a secondary party back into line with that which is required of the principal – and to bring the law back to the principles which had been established before the law took a wrong turn”.
In the UK, at least, this “wrong turn” has not led to the gallows.
It is to the credit of the supreme court judges – assisted by the lord chief justice, Lord Thomas of Cwmgiedd, who was invited to sit with them – that they grasped the nettle rather than batting the case across the road to parliament. When the courts get things wrong, they try to put them right.
