The U.K. Supreme Court has ruled that the law on “joint enterprise” – which allows someone to be convicted of murder even if they did not strike the fatal blow – has been wrongly interpreted for more than three decades.
The historic legal judgment changes the way the courts in all jurisdictions which use U.K. Common Law, including the Cayman Islands, handle some crimes involving multiple defendants.
It is expected to pave the way for a number of high-profile cases in the U.K. and the Cayman Islands to be re-examined, but lawyers here say it will not “open the floodgates” for a series of appeals.
The joint enterprise law has been a feature of multiple cases in the Cayman Islands, from bank robberies to abduction and murder.
Joint enterprise is used to convict multiple defendants who play different roles in the same crime. In a bank robbery, for example, the getaway driver and the gunmen are held equally culpable. The U.K. ruling does not change this aspect of the law, which has never been controversial.
According to Bilika Simamba, consultant legislative counsel, the change centers on crimes that escalate beyond the original intent, for example, where a robbery goes wrong and one of the group shoots and kills someone. Previously, all of those involved could have been convicted of murder.
Following the Supreme Court judgment, prosecutors now must show intent to assist or encourage the killing on behalf of the accomplices in order to secure murder convictions. Mr. Simamba believes they are now much more likely to be charged with manslaughter in such circumstances, unless it is shown that they played a significant role in the killing.
Changing 30 years of legal tradition stemming from a precedent-setting judgment in a Hong Kong murder appeal, the Supreme Court decided it was not enough to show that a defendant had “foresight” that the second crime was a possible consequence of the first.
“The error was to treat foresight … as automatic authorisation [of the crime] … whereas the correct rule is that foresight is simply evidence of intent to assist or encourage,” the Supreme Court said in its legal summary.
“It is a question for the jury in every case whether the intention to assist or encourage is shown.”
The ruling came after a panel of judges considered two separate joint enterprise murder cases, one from the U.K. and one from Jamaica.
The court heard that Ameen Jogee had carried a broken bottle and shouted encouragement to his friend Mohammed Hirsi when he stabbed former police officer Paul Fyfe in the heart at a home in Leicestershire, England. Jogee, who was convicted of murder, argued he was not inside the house when the stabbing took place and, though he may have anticipated that violence was likely, could not have foreseen that his friend intended to kill the victim.
Shirley Ruddock admitted in police interviews to taking part in a robbery in Jamaica where the victim was tied up, but claimed to have no part in the murder of the victim, who was killed by his accomplice in the robbery.
Both men were granted leave to appeal after the Supreme Court gave its decision last week.
Prathna Bodden, attorney with Samson and McGrath in Grand Cayman, described the decision last week as a “big day in the legal world.”
She said there would be some cases in Cayman that would be open to review.
“It will perhaps open grounds of appeal in cases where people have been convicted on foresight alone, but it won’t open the floodgates for appeals,” she said.
Another Cayman Islands defense lawyer, Amelia Fosuhene, said the decision would certainly lead to appeals against murder convictions in the U.K. and possibly in Cayman as well.
“The fact is there are a number of cases which I am aware of in the U.K. which will naturally result in convictions for murder being quashed.
“Jogee basically says the court, police, lawyers have got this doctrine wrong for the last 30 years. So every case where joint enterprise was a foundation for conviction is open to review. That is a huge amount of work for both the courts and lawyers.”
She said she was not immediately aware of any specific case in Cayman that would warrant an appeal as a result of the Supreme Court’s decision. She suggested all joint enterprise cases should be reviewed. However, she warned that even those who had been jailed as a result of the misinterpretation of the law may not get chance to appeal.
The Supreme Court noted in its decision that the fact that the law had been misinterpreted was not in itself grounds for appeal in all cases.
The judges said lawyers would have to show a substantial risk of injustice for appeals to be heard.
Mr. Simamba said going forward, the application of the joint enterprise principal could actually result in more convictions for manslaughter.
He said criminals who played a secondary role in a murder could still be convicted of murder if the evidence were strong enough, but were more likely to be charged with and convicted of manslaughter.
“Whereas in the past the choice was to get a conviction on the same offense as the principal offender or face an acquittal, now they can seek, as an alternative, a conviction for a lesser offence, in this case manslaughter,” he said. “The result is likely to be that some offenders who might have been acquitted altogether may now be convicted, not of murder but manslaughter. It is also possible that since now judges also have the option to convict for manslaughter, some offenders who might have been convicted of murder may now be convicted only of manslaughter.”
The Supreme Court judgment states, “In a line of cases the courts recognized that even where there was a joint intent to use weapons to overcome resistance or avoid arrest, the participants might not share an intent to cause death or really serious harm. If the principal had that intent and caused the death of another he would be guilty of murder. Another party who lacked that intent, but who took part in an attack which resulted in an unlawful death, would be not guilty of murder but would be guilty of manslaughter.”