Supreme Court says joint enterprise law wrongly interpreted for 30 years

[claig]

Good news. I am not a lawyer, but this never seemed like justice to me.

www.theguardian.com/law/2016/feb/18/joint-enterprise-law-wrongly-interpreted-for-30-years-court-rules

Agreed, it's an entirely sensible decision. Not that you would know that from the Mail, which is desperately trying to paint a picture of marauding murderers being let out immediately to wander our streets looking for victims.

Yes, I wouldn't trust the Mail on this one. I never understood how Liberty and all out top liberal legal brains and liberal political class could allow people to be jailed for murder under "joint enterprise". Why did it take so long to be changed? Was it only eventually changed because someone challenged it in court and it went up to the Supreme Court level?

Presumably. It's very hard to get leave to appeal to the Supreme Court and to get funding for it.

Yes, probably about funding.

I never understood how Liberty and all out top liberal legal brains and liberal political class could allow people to be jailed for murder under "joint enterprise"

I'm not sure in what sense Liberty, etc. "allowed" it. They don't have the power to stop it.

After the doctrine of "joint enterprise" (or, to be legally correct, "parasitic accessory liability") was introduced by the Privy Council in a case heard in 1984 most lawyers assumed it would take primary legislation, i.e. an Act of Parliament, to change the law. There has been no great public clamour for change despite an ongoing campaign so politicians have left the law alone. However, on this occasion the Supreme Court has taken the rare step of reversing a ruling on a point of law made by the Privy Council for a number of reasons including:

• They think the Privy Council failed to consider previous judgements adequately and hence made the wrong judgement

• They believe the Privy Council's decision unduly widened the doctrine of secondary liability

• The Privy Council's ruling means it is easier to convict someone who was not the killer of murder than it is to convict the actual killer

'I'm not sure in what sense Liberty, etc. "allowed" it.'

By "allowed" I mean why wasn't this ended years ago under pressure from a high profile campaign. How was it allowed to continue for 30 years?

'There has been no great public clamour for change despite an ongoing campaign'

Justice shouldn't require the public to clamour about it. It should be a matter for the legal profession and legal pressure groups and MPs.

'so politicians have left the law alone'

Precisely. But we are told that "the law took a wrong turn 30 years ago". Whenever, I heard people jailed under this, I couldn't understand why the great and the good allowed this and why MPs and the legal system didn't end it long before the 30 years it has been in operation.

'The Privy Council's ruling means it is easier to convict someone who was not the killer of murder than it is to convict the actual killer'

Was it like that for 30 years or was that a recent Privy Council ruling?

why wasn't this ended years ago under pressure from a high profile campaign

Because the public simply didn't care enough. The campaign did manage to get significant publicity at times but did not catch the public imagination. So there was a campaign but it never managed to sustain a high profile.

It is important to remember that many of those convicted of murder under the old rule will still be convicted of murder under the new rule. Most of those who are found not guilty of murder will instead be convicted of manslaughter which can also carry a life sentence. So the effect on the prison population may be quite minimal. This is probably a significant factor in why it has taken so long to fix this, coupled with the view of most legal professionals that a change needed primary legislation which politicians did not regard as a priority.

Was it like that for 30 years or was that a recent Privy Council ruling?

That was the consequence of the 1984 judgement.

Simplifying hugely, imagine A and B set out to commit a robbery. A knows that B is carrying a knife. During the robbery B pulls out the knife and the victim ends up dead due to knife wounds. Under the Privy Council judgement A can be convicted of murder simply because he knew B was carrying a knife. However, to convict B the prosecution would have to prove that he intended to kill or seriously injure the victim.

I was suprised to hear about this too it does sound like to many errors in system. Surely the courts can tell the difference between a gang where a few are carrying knives and its intention to do harm. And two people that know each other when something happens and a knife is used in unplanned event.

Also said on radio it is applied where the girl friend is convicted of murder even where the bully of boyfriend has gone out and killed someone and she was manipulative later to hid his body. But wasn't away of or in same place at time. Even later she went to police she's in prison for murder.

If we just tell people don't go anywhere or do anything with anyone else Because you are held equally responsible. If I'm in a car and the driver speeds I may object but I'm not at fault. I certainly wouldn't want to get equal points because I was in the car at the time.

Hate to see grieving families on TV saying this means people will get away with murder but it surely can't be if you are with one or more person in an adult you are always all equally charged. Has to be a sensible middle ground.

'Because the public simply didn't care enough. '

Yes, but that is not really good enough in society. The public might not care enough about a small minority's rights because it does not affect the majority, but the law should be principled and just enough to ensure justice for the minority.

'So there was a campaign but it never managed to sustain a high profile.'

I am just surprised because Channel 4 often puts Liberty and very celebrated lawyers on TV to talk about campaigns and injustice etc and I never remember this getting much publicity, so I just wondered why it was not high up the agenda.

'This is probably a significant factor in why it has taken so long to fix this'

Yes I think you are right. I can see that joint enterprise is valid in some cases, but it does seem to have been applied too widely. It is complicated to differentiate between cases, but it is important to do so because it should be fair and just.

'Under the Privy Council judgement A can be convicted of murder simply because he knew B was carrying a knife'

Yes, I think this is an example of where it is not just.

Derek Bentley was hung on the basis of joint enterprise, I think, so it is not as if the issue was not high profile for years.

But in the examples I have read there is 'egging on' described. So incitement. Therefore accessory to the crime. Therefore manslaughter minimum?

But wasn't the whole Derek Bentley injustice based purely on the interpretation of Let him have it? Huge difference between that and phone calls to bring knives or stab someone....

' Therefore accessory to the crime'

Yes, but not full murder

good points, Akire. I agree with you on those examples.

Also if a group of teenagers go out to do a robbery and one is carrying a knife and the rest know about it, that doesn't mean they definitely know the person with the knife will use it. If he does, does that mean that the rest are part of joint enterprise?

There was a drama about this on BBC 1 some time ago Susan Lynch was in it but i cant remember what it was called.

This was it ......Common.

Politicians have an incredibly poor record when it comes to listening to lawyers on those areas of law that most affect the vulnerable. In this case, the issue has had publicity from time to time - including when the drama Helena refers to was shown, and with campaigns such as the one around Jordan Cunliffe - but the Ministry of Justice and MPs generally don't seem to have had any interest in pursuing it.

Derek Bentley was hung on the basis of joint enterprise

The Derek Bentley case goes back to 1953, well before the Privy Council decision. His guilt or otherwise are not affected by the Supreme Court decision. He was ultimately pardoned due to serious defects in the judge's summing up at the original trial coupled with forensic linguistics evidence showing that his alleged confession was actually concocted by the police. However, that doesn't mean the courts decided he was not guilty. If he had still been alive the case would probably have been sent for retrial.

Also if a group of teenagers go out to do a robbery and one is carrying a knife and the rest know about it, that doesn't mean they definitely know the person with the knife will use it. If he does, does that mean that the rest are part of joint enterprise?

That is the fundamental question. The Privy Council said the answer was conclusively yes, if you know someone uses a knife you are automatically guilty of any crime they commit using the knife. The Supreme Court has disagreed. They say that if you know someone is carrying a knife that is evidence of intent but not conclusive proof. So under the Privy Council ruling the teenagers are all automatically guilty of murder if the knife carrier kills someone. Under the Supreme Court ruling the teenagers may be guilty of murder but could equally be guilty of manslaughter with a remote possibility that they might not be guilty of anything.

Yes, I wouldn't trust the Mail on this one.

Which implies there are some things you would trust the Mail with .

To be fair, it is absorbent ...

Could somebody do me an idiots guide please? Channel 4 had a feature last night but I struggled to grasp the fundamentals.

They had a studio debate between a girl whose brother was jailed for 19 years because a stranger knifed somebody he had punched (i think) and a lady who's son had been murdered but who didn't really articulate her objections.

I'm not sure I'm any the wiser.

This seems quite helpful.

The bit I find upsetting is the law is always about the persoin who comits a crime. Laywers go on about the human rights of the criminal... No one mentions the human rights of the victim.

Criminal law is about determining whether or not the prosecution has proved its case against the accused. The focus is therefore on the strength or otherwise of the prosecution's case. The victim may or may not have a part to play in that depending on whether or not they can give relevant evidence. If the accused is convicted the victim also has a chance to make a personal statement describing how the crime has affected them. This is taken into account by the judge in determining the sentence.

The criminal law protects the human rights of victims by criminalising actions that infringe their human rights, convicting people who commit crimes and sentencing them appropriately.

Ensuring that those accused of crimes receive a fair trial (which is what this case is about) does not damage the human rights of victims.

Ensuring that those convicted of crimes are punished fairly does not damage the human rights of victims.

Taking measures which may appear to pander to criminals but actually reduce the chances of them reoffending does not damage the human rights of victims.

Releasing those who have been wrongly convicted does not damage the human rights of victims.

It is not a zero-sum game where protecting the human rights of those accused of crimes damages the human rights of victims. Those convicted inevitably lose some rights but again, ensuring their punishment is fair and proportionate does not damage the human rights of victims.

Yes, the courts sometimes get it wrong in both directions. People are convicted of crimes they did not convict. Sometimes people are convicted of crimes that did not even happen. People who did commit crimes are found not guilty. Some of those convicted are given unduly lenient sentences. Some of those convicted are given unduly harsh sentences (but of course the press never tell you about those).

I don't know about the last poster but I frequently hear people talking about the human rights of victims who believe that we should weaken the presumption of innocence. I cannot agree. The presumption of innocence protects all of us. It is and always should be for the prosecution to prove its case, not for the defence to prove the accused's innocence.

Agree with prh47, we need tougher sentencing but it must always be just otherwise society begins to lose trust in the law and that is no good for society.

This "wrong turn in the law for 30 years" does not seem just and that is why it is about time it has been changed.