Bereavement damages: an award or an insult?
Today (18 February) the Supreme Court has handed down its landmark decision in R v Jogee (Appellant). Judgment was delivered following a hearing 27 – 29 October 2015. This was the first time that the highly contentious common law doctrine of joint enterprise has been looked at by the Supreme Court. Sandra Paul examines the issues involved.
What is R v Jogee (Appellant) about?
On the night of 9 June 2011, at around midnight, Jogee and his friend Hirsi visited the house of Naomi Reed where all three consumed drugs. During this visit, Jogee picked up a large knife from the kitchen block saying that they should go and stab another man they knew. He was talked out of this and returned the knife. Miss Reid asked them to leave before Paul Fyfe, her lover, returned. Hirsi returned shortly afterwards but was taken away by Jogee, they both returned again later. Hirsi went inside the house whilst Jogee stayed outside, 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, and Hirsi used this opportunity to enter the kitchen and take the knife. There were then further heated exchanges. According to Miss Reid, from outside, Jogee threatened to hit Mr Fyfe over the head with the brandy bottle in his hand. Jogee was also said to be "egging" Hirsi on to harm Mr Fyfe. Hirsi then stabbed Mr Fyfe with the kitchen knife resulting in Mr Fyfe's death.
Jogee was subsequently found guilty of murder under the doctrine of joint enterprise. The only sentence available for murder is life imprisonment.
What is joint enterprise?
Joint enterprise, as a doctrine, has existed in English common law for the last 300 years and allows several people to be prosecuted for an offence they did not actually commit themselves but where their presence lends encouragement or where it is otherwise determined that they should have foreseen the possibility of the harm that was eventually caused. It fails to differentiate the roles and culpability of the participants. As a result an individual can be found guilty of a crime they did not themselves commit, as Mr Jogee was.
In particular the court was concerned with the application of the principle in cases of participants being involved in a crime together when one of the participants then commits a second crime which the other participants ‘could reasonably have foreseen’ occurring. For example, whilst carrying out a burglary the participants are disturbed by the householder and he is killed by one of the participants who either intended to kill him or at least cause him serious harm.
If the other participants could ‘reasonably foresee’ that one of their numbers might commit a criminal act with intent to kill, or do really serious harm, then they too will be liable for the death. The participant (Defendant 1) who causes the death of the householder is guilty of murder. However the principle of joint enterprise as applied before today’s judgement meant it was not necessary for the other participants (Defendant 2) to have the same intention, or for them to do anything at all to actively assist the ‘killer’ for them also to be guilty of murder. In this case Hirsi is Defendant 1 (D1) and Jogee is Defendant 2 (D2).
What was the problem with joint enterprise?
The vox pop expectation is that D2 cannot be found equally guilty of an offence that someone else commits unless you know the essential facts of what is going to happen i.e. the type of offence or level of harm that might be caused and nevertheless continues to assist or encourage it.
The previous application of the principle of joint enterprise allowed a conviction under circumstances where you simply foresee a possibility that of harm – it does not even need to be the same type of harm that was actually caused.
Our criminal law usually attributes guilt on the basis of what you know and what you do. Joint enterprise relied simply on what you foresaw as a possibility. A lazy prosecutor did not need to particularise what D2 did, just simply show that he was present and invite a jury to infer that he must have thought that some harm was possible.
For instance the metal element usually required for murder is an intention to kill or cause serious harm. If Joint enterprise was applied, all that was required is for D2 to foresee the possibility that D1 might cause some harm.
The doctrine previously resulted in the occasional triumph, such as the conviction of Stephen Lawrence's killers (though of course it was employed in that case precisely because of the absence of other admissible evidence that ideally should have been before the court) but these occasional wins were far outweighed by its disproportionate application to groups such as young people, particularly black young men.'
What was the issue for the Supreme Court?
The question therefore for the Supreme Court was whether the prosecution must prove that a secondary offender, who encouraged the primary offender to commit some harm, foresaw the primary offender’s acquisition and use of a weapon for murder “probable” rather than “possible” in order to establish joint enterprise.
The unanimous conclusion of the Court was that the principle as it had been applied since 1984 was wrong. Plain and simple. The court clearly stated that the culpability of the secondary participant is to be decided by a jury having taken into account all the facts of the case.
The court explained that D2’s foresight of what D1 might do is simply evidence from which a jury can infer whether or not he intended to assist or encourage D1 in the harm that resulted; it is not by itself evidence of intention or guilt.
What about the victims?
Our sense of justice in large part is satisfied not by retribution but by having the sense that the person who has offended us (as individual victims or as a society) has been properly punished in a way that is commensurate with what they have done i.e. that they received their just desserts. Joint enterprise as previously applied denied us that sense of justice as it made no distinction between the person who actively committed the offence and others who were deliberately or inadvertently on the periphery of the offending behaviour. People sentenced in that way often do not get “what they deserve” and so they lose, the victims lose and society loses.
Those who are proven to actively participate in offending will still be punished. However now they will be punished for what they have done based on the evidence. It may be the same offence, it may be a different or lesser offence but it will be based on the standards of evidence and justice that we expect from our criminal justice system rather than guilt by association.
The clarification of the law is welcome and just. I applaud the judges of the Supreme Court for stating the law so unequivocally. The ripples from today's decision will transform the fairness of future trials and potentially the whole lives of those who would otherwise have been caught in the Joint enterprise trap.
It is important that investigators and prosecutors consider the judgement carefully and engage the full range of people affected by this law to publish sensible guidelines that properly convict the guilty and acquit the innocent.
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