It was as recently as February of this year that the landmark Supreme Court ruling in the case of R v Jogee brought hope to those convicted under the Doctrine of Joint Enterprise (“the Doctrine”) and their families.
However, those hopes appear to have been dashed by the Court of Appeal who recently rejected a tranche of appeals submitted following February’s ruling. So what went wrong and is there a road back for those serving life sentences?
Unanimous in their decision, the Supreme Court ruled that the Doctrine – simply put, all participants in a joint criminal enterprise will be responsible for the harm caused in the commission of that enterprise, no matter who delivers the fatal blow – had been “wrongly interpreted” for the past 30 years. Lord Neuberger explained that the reduced mens rea requirements for guilt, from ‘common criminal purpose’ to mere ‘foresight of serious harm’, was wrong in principle. The threshold had been too low and the Supreme Court was now content to correct this. Unsurprisingly, a flood of appeals from those convicted under the Doctrine followed.
Fast-forward 8 months and in October 2016, 13 of these cases were heard together at the Court of Appeal. Known as R v Johnson and others, the appeal was rejected much to the dismay of the appellants and their families. The Court relied upon paragraphs 100 and 101 of the Supreme Court judgement in Jogee which set out a test for overturning previous convictions where the Doctrine applied. The Supreme Court stated that their finding that the law had been mistakenly interpreted for a number of years would not automatically result in a successful appeal. Only where it could be demonstrated that a ‘substantial injustice’ had occurred would an appeal be likely to succeed.
In dismissing Johnson, the Court of Appeal was scathing in its comments. Not only was there no ‘substantial injustice’ in these convictions, but in fact there was no injustice at all. This was a huge setback for those who had campaigned for the review of the Doctrine for so many years.
What went wrong? Well a number of criticisms of the approach taken to the appeals could be made. Was Jogee, an incident involving only 2 defendants and the murder of a police officer, the right test case to take to the Supreme Court? Was it the right decision to have 13 appeals all heard together as part of Johnson & others when perhaps each case had its own merits that would have been better received by the Court of Appeal individually? Can injustice be anything other than ‘substantial’?
Possibly the most important question is whether Jogee is actually the landmark ruling that it was made out to be? Is proving ‘common criminal purpose’ much more difficult than mere ‘foresight of serious harm’? One could argue that the raising of the mens rea threshold by the Supreme Court is not as significant as first thought.
One possible solution would be for the courts to adopt a similar approach to the system used in America where there are degrees of murder (1st degree, 2nd degree etc), but this would require a more radical reform of the law than seems currently possible. Politically there is little motivation to address the issue and the courts are unlikely to commit to such upheaval without direction from Parliament.
The most practical step for those still languishing in jail having been convicted in accordance with the Doctrine would be to pursue their appeals individually and rely upon the very specific appeal points of their own case. Mr Jogee successfully appealed his murder conviction and was acquitted of murder at his retrial because his legal team where able to focus on the specific merits of his defence rather than setting a precedent that for all others to follow.