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'Joint enterprise' rejection confirms bizarre understanding by Supreme Court

Responding to the news that judges have today refused to overturn guilty verdicts in a "joint enterprise" challenge by men convicted of group attack murders, Dr Henrique Carvalho, of University of Warwick's School of Law says:

"The Supreme Court decision in R v Jogee, judged in February of this year, was hailed as a much-needed intervention on one of the most controversial areas of criminal law, that of joint enterprise. The Supreme Court acknowledged that the law in this area had been misinterpreted for over 30 years, in which defendants were convicted of very serious crimes, often murder, on the basis that they had foreseen the possibility of serious violence occurring out of their joint criminal activities. According to the judgment in Jogee, the reliance on foresight was a misinterpretation, and the law actually was that defendants could only be held liable if it could be established that they intended to assist or encourage the violent acts of their associates.

"However, in that same decision, the Supreme Court also indicated that the recognition of this misinterpretation did not threaten previous decisions based on the incorrect legal understanding. In fact, in April, the Supreme Court accepted an appeal of their decision and ordered Ameen Jogee to be retried. The retrial happened in September, and resulted in Jogee’s conviction. The decision made today to reject the ‘joint enterprise’ challenge to previous guilty verdicts only confirms the rather bizarre understanding put forward by the Supreme Court in Jogee, that previous convictions based on joint enterprise remain generally safe, despite the direct acknowledgement that they were based on an incorrect and admittedly unfair interpretation of the law.

"One idea that can explain the understanding put forward in Jogee, which is supported by many previous decisions in this area, is that involvement in group violence is particularly blameworthy, especially due to the dangerousness surrounding these activities. In this sense, there seems to be a presumption that, if one voluntarily gets involved in joint criminal enterprises, it is generally understood that they are to some extent invested in potential additional harm that might arise from them. In other words, individuals who involve themselves in dangerous activities are likely to be dangerous themselves. The problem—or danger—with this reasoning, however, is that these cases deal with additional criminal liability, for serious offences such as murder, which require a very high level of fault.

"The Supreme Court in Jogee tackled one of the most problematic areas of the criminal law, and did well in highlighting the problems and difficulties surrounding joint enterprise. However, until this decision is translated into effective recognition of the failures of the previous law in individual cases, its merits will remain bittersweet."

31 October 2016


Tom Frew - Senior Press and Media Relations Manager:

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