On Thursday 18th February 2016 the Supreme Court declared that the joint enterprise test imposed by judges has been incorrectly applied.
This unanimous decision is thought to be likely to trigger a number of applications to the Court of Appeal by those convicted of murder, where it is said that the defendant had ‘foresight’ as to what would happen prior to the murder being committed.
A test that the Court’s had previously been following was laid down by the Privy Council in the case of Chan Wing-Siu v The Queen  AC 168. This test said that if two people plan to commit a criminal act and during the course of this offending one of the two commits another offence, then the person who doesn’t commit this second offence is also guilty as an accessory. The key issue here is that this second person must have foreseen the possibility that the offender would act as he did to be found guilty on a joint enterprise basis.
The five Supreme Court judges in the appeal of R v. Jogee last week, said that the courts had been wrongly interpreting the law on joint enterprise – specifically when treating the fact that a co-accused had foresight that the principle offender might carry out an offence as being sufficient proof of guilt.
The Supreme Court clarified the correct position. They said that the jury must now decide whether the defendant intended to assist the principle offender or encourage them to commit the offence. Any foresight by the second person about what might happen is evidence of an intention, but would not on its own be sufficient to convict.
The judgment in relation to the case of R v. Jogee resulted in this individual’s murder conviction being set aside, although it remains to be seen if there will be a re-trial, or whether his conviction will be replaced by one of manslaughter.
In cases of joint enterprise murder convictions, where there has been clear evidence of encouragement or agreement to commit the offence; then these are unlikely to be affected by this judgment. What this judgment really affects is those cases where such evidence is less clear that the secondary defendant foresaw, or was aware of, what would happen.
What does this judgment mean?
This judgment resulted in a change in the interpretation of the law on Joint Enterprise and this will undoubtedly raise concerns for some who believe they have been wrongly convicted.
This ultimately means that if someone was convicted on a joint enterprise basis and it was said that this defendant could foresee but did not encourage or assist the primary offender, then there is a possibility the conviction could be set aside.
Should you require any legal advice on this matter then you can contact our General & Serious Crime Team by e-mail at firstname.lastname@example.org, or if you require urgent Court or Police Station assistance outside office hours, you can contact a member of our criminal department by calling our emergency number – 07876 687587.