On ‘joint enterprise’

The recent decision of the U.K. Supreme Court in the cases of Jogee and Ruddock, decided together only days ago, is sending ripples through the legal fraternity and the community as a whole. For about 30 years, the courts in the U.K. have applied the doctrine of joint enterprise which, even then, was not entirely new in the Commonwealth. Though the doctrine applies to all offenses, it receives more conspicuous attention in murder cases. In that application, basically it says that if a person commits murder, any other person who participated in the planned killing is as guilty as the person who pulled the trigger. For this purpose, participation includes enabling, aiding, abetting, counseling or procuring. This principle is enacted in section 18 of the Cayman Penal Code.

Historically controversial cases arise where something that was not in the specific plans happens. For example, two offenders decide to rob a bank and that each will carry a loaded gun. However, due to the exigencies of the situation, one of the offenders shoots and kills someone. Before now, it was generally held that in such a case the possibility of shooting was foreseeable and therefore the further offense (murder in this case) must also be automatically ascribed to the other gunman. All that the prosecutor needs to show is – the obvious in this particular case – the foreseeability of killing someone in the course of the robbery.

The U.K. Supreme Court, in the Middlesex Guildhall in London, is the final court of appeal for civil cases in the U.K., and for criminal cases in England, Wales and Northern Ireland. - Photo: U.K. Supreme Court
The U.K. Supreme Court, in the Middlesex Guildhall in London, is the final court of appeal for civil cases in the U.K., and for criminal cases in England, Wales and Northern Ireland. – Photo: U.K. Supreme Court

In the first of the two cases, Jogee and Hirsi went to the flat where the deceased lived and there was an altercation. At one point, the deceased was in the hallway. Hirsi was inside the front door, armed with a knife he had gotten from the kitchen. Jogee was outside, striking a car with a bottle and shouting encouragement to Hirsi to do something to the deceased. At some stage Jogee came to the doorway, with the bottle raised, and leaned forward past Hirsi towards the deceased, saying that he wanted to smash it over the deceased’s head, but he was too far away. The altercation ended when Hirsi finally stabbed the deceased, killing him. Hirsi pleaded guilty to murder. The issue was whether Jogee was also guilty of murder. Jogee, who knew that Hirsi had a knife and might cause really serious bodily harm, was also convicted of the murder, this on the basis of the joint enterprise principle.

In considering the appeal, the court accepted the relevance of foresight but said that what is illegitimate is to treat foresight as “an inevitable yardstick of common purpose.” In other words, the fact that shooting and possibly killing someone was foreseeable does not automatically make the second gunman guilty of murder. A court has to go further to examine the extent to which that foresight is relevant to the incidental offense.

The court explained that the choice of disposal of the case was whether to quash Jogee’s conviction for murder and order a re-trial or whether to quash his conviction for murder and substitute a conviction for manslaughter. The court then quashed the conviction and invited the parties to make written submissions on that question. A decision on this will come later.

In the second case, originating in Jamaica, basically Ruddock and Hudson robbed the deceased of his car. He was later found dead. Hudson pleaded guilty to the murder. Ruddock essentially denied the murder but admitted participating in tying up the deceased, an act consistent with robbery but not necessarily murder. The trial judge failed to tell the jury that if they were sure that Ruddock was a party to carrying out the robbery, it did not automatically follow that he was also party to the murder of the deceased. However, again on the basis of the principle, Ruddock was convicted of murder.

The effect of these cases is that prosecutors will have a heavier burden to prove the incidental offense in relation to the secondary participant. They must not only advance the foreseeability argument, but go further to show how foresight played into the incidental offense. However, 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 offense, in this case manslaughter. 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 effect of the ruling on past convictions is already being debated. However, it is unlikely that many past convictions will be reopened. This is mainly because the court reaffirmed the principle that where a conviction has been arrived at by faithfully applying the case law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal out of time. It further observed that an appeal court has power to grant such leave, and may do so if there is substantial injustice, but it will not do so simply because the law applied has now been declared to have been mistaken.

In other words, the mere fact that previous misconceptions about the meaning of a statute have been put right does not afford a proper ground for allowing an extension of time in which to appeal against conviction. To put it simply, applications for leave to appeal out of time on the basis of the new ruling are likely to be granted only in particularly harsh applications of the old principle. The length of time that has passed since the conviction is likely to be a factor. Further, the fact that since the coming into force of the Conditional Release Law in Cayman, even those sentenced to life imprisonment for murder will all return to court to be given finite sentences is likely to influence the courts’ decisions on extension of time.

Finally, the ruling also illustrates how sometimes principles that are largely sound can be  challenged by exotic facts, resulting in the refinement of a long-standing principle.

Bilika H. Simamba, Consultant Legislative Counsel