The Mistake in the Law
The case of R v Jogee  UKSC 8 corrected a mistake in the law made decades ago in the case of Chan Wing-Siu  AC 168. In summary, in Chan Wing-Siu the courts had wrongly widened the scope of “joint enterprise”, a legal doctrine which makes one person liable for a crime committed by another person.
The classical example of this is a bank robbery. Two robbers walk into a bank, and a getaway driver waits outside. All three of them have agreed to rob the bank, and so all of them are guilty of conspiracy to rob. However, one of the robbers carries a shotgun with him. The other two know about this. When a security guard tries to stop the robbery, the robber with the shotgun shoots and kills the guard. The robber who fired the shot is obviously guilty of murder (unless an unusual defence such as diminished responsibility or insanity applies). But what of the other robbers? Are they also guilty?
Under Chan Wing-Siu, if they had foreseen the possibility of a person being caused serious harm in the course of the robbery, they would have been guilty of murder as well. This would be the case even if they had not agreed to it, and even if they had objected to killing anyone.
Participation in Crime A knowing Crime B was possible meant being guilty of Crime B.
Correcting the Mistake
However, this was corrected by the Supreme Court in Jogee. They agreed that this test was wrong in law, and was not justified as a matter of public policy. The law went back to what it had been before Chan Wing-Siu: for a person to be guilty, they would have to agree to some serious harm being caused, even if this agreement was conditional on something going wrong. For example, if one of the robbers had not agreed to the weapon being used, or even had argued against it being used, they may not be guilty of murder, even if they foresaw that a person might be caused serious harm.
Many hundreds of people have been convicted under joint enterprise principles when they were incorrectly applied. The Supreme Court foresaw that many of them would want to apply to have their convictions overturned. However, they noted that the Court of Appeal may only grant leave to appeal “if substantial injustice be demonstrated”. The Supreme Court did not define “substantial injustice”, so any appeal on those grounds will be specific to an individual’s case.
The first full set of appeals after the case of Jogee were the linked appeals of Johnson and others  EWCA Crim 1613. The court there dealt with the issue of demonstrating substantial injustice. All appellants in that case were either denied leave to appeal or had their appeals dismissed, and all convictions were therefore upheld. It is not easy then, to get these cases overturned.
To persuade the Court of Appeal that a substantial injustice has occurred an applicant will have to persuade them that they would not necessarily have been convicted even if the correct legal test had been applied. The Court of Appeal did make clear that, “If there was a substantial injustice, it is irrelevant whether that injustice occurred a short time or a long time ago. It is and remains an injustice.”
Demonstrating that there was a substantial injustice has proved a difficult hurdle for applicants to overcome, even if the legal direction on joint enterprise was wholly wrong. Only one case has successfully challenged this decision.
In the case of R v Crilly  EWCA Crim 168, the Appellant was convicted of a murder taking place in the course of a burglary. It was agreed by the participants that no weapons were used, and the 71-year-old victim was killed by a forceful blow to the head by Mr Crilly’s co-accused. Mr Crilly understood that the house was empty when he agreed to go with the co-accused to burgle the house and did not intend to cause very serious harm to the victim. The Court of Appeal concluded at para 42 that the evidence against Mr Crilly “was not so strong that we can safely and fairly infer the jury would have found the requisite intent to cause really serious bodily harm”.
Despite all the attention by the Supreme Court and the Court of Appeal, the law of joint enterprise remains as controversial as ever. It may be that a solution lies not through the courts, but through political reform. The community group, JENGbA (Joint Enterprise Not Guilty by Association) have been campaigning hard for new legislation that would limit the number of people who could be prosecuted under the joint enterprise doctrine and would assist those serving long and unjust sentences.
At present, only in the Crilly case has the Court of Appeal found the Appellant’s conviction for joint enterprise murder was unsafe, although there are other cases that merit the Court’s close attention being heard in the coming months. These will test the law further and may clear up some confusion for those thinking of appealing.
This article was updated on 5 September 2018. Thanks go to Sophie Walker for her assistance with the update.
This is an extremely complex and evolving area of law. Before relying on any matter set out in this article, make sure to consult an expert to check that it is still up to date and how it applies to your case.