Acting to stop harm: the FCA and Appointed Representatives
We should all be very interested in the outcome of R v Jogee currently being heard in the Supreme Court on 27/10/15. The intervention by Just for Kids Law and Joint Enterprise: Not Guilty by Association (JENGbA) reflects the importance of the case for criminal lawyers working with young people.
The Prosecution has demonstrated its willingness to use the doctrine of joint enterprise in a variety of areas such as protesters, Fixing Benchmarks and other fraud cases where it is easier to demonstrate participation and encouragement than the common purpose required for a conspiracy.
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 "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. There is only one sentence available for murder.
What is joint enterprise?
Joint enterprise, as a doctrine, has existed in English law for the last 300 years and allows several people to be prosecuted for an offence they did not actually commit themselves 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. The doctrine results in the occasional triumph such as the conviction of Stephen Lawrence’s killers but these are far outweighed by its disproportionate application to groups such as young people, particularly black young men.
So what is the issue in R v Jogee?
The question certified for the court is 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
Think about it. Jogee is outside. He cannot see that Hirsi has armed himself with a knife or what Fyfe is doing. It is arguable that Jogee can foresee some type of harm but there is in my opinion no basis on which it can be fairly argued that he should have anticipated that Hirsi would stab the victim at all let alone inflict a fatal wound.
It is tempting to argue that joint enterprise is a redundant principle. I do not think I can sustain that argument. But the application of the principle to the most serious of offences such as murder and GBH requires boundaries and careful application if it is to avoid unjust outcomes. I look forward to seeing how the Supreme Court balances the competing issues raised by this case.
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