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Supreme CourtThe joint session of the Supreme Court and Privy Council heard the appeals in R v Jogee and Ruddock v The Queen (Jamaica) between the 27 and 29 October 2015. The appeals challenged the approach of the prosecution in establishing joint enterprise murder. Mr Jogee argued that foresight of a mere possibility that the primary offender would acquire and use a weapon for murder was insufficient, and that the prosecution ought to have been required to establish that such events were probable to successfully establish joint enterprise. Mr Ruddock argued that his conviction was unsafe because inadmissible evidence was put before the jury and because the judge’s directions to the jury had been defective.

Background

R v Jogee

Mr Jogee and his friend Mr Hirsi visited the house of Miss Reid for the purposes of taking drugs and the evidence, admitted without objection at trial, was that both were intoxicated by alcohol and cocaine. While at the house, Mr Jogee picked up a large knife from the kitchen block and spoke about attacking an individual he had had a disagreement with earlier in the night. Mr Hirsi managed to calm him down and he returned the knife to the block. However, both men continued to act aggressively. Miss Reid asked them to leave as Mr Fyfe, a man she was seeing, would be coming. They departed the house after receiving a text message about cocaine being available elsewhere, but suggested they may return.

Mr Hirsi returned to the premise but left again when Miss Reid phoned Mr Jogee to collect him. However both men returned less than twenty minutes later. Mr Hirsi entered the house, but Mr Jogee stayed by the front door. An angry exchange took place between Mr Hiris and Mr Fyfe. Miss Reid gave evidence that both Mr Hirsi and Mr Jogee were irate, and that Mr Jogee was encouraging Mr Hirsi to harm Mr Fyfe. Mr Hirsi drew the knife he had taken from the kitchen and stabbed Mr Fyfe, who died from his injuries.

The appellant argued before the Court of Appeal that the trial judge had been wrong to reject the submission that there was no case to answer for the jury, given the lack of evidence on which to infer encouragement of joint enterprise murder. The appellant further contended that the direction to the jury that they should convict him as a secondary party if he foresaw that a knife ‘might’ be used was insufficiently precise in this case and asserted that instead the jury should have been only permitted to convict him if he had been aware at the time that there was a real probability that a weapon would be used for fatal purposes. It was essentially argued that the test for establishing joint enterprise by encouragement ought to be different to the test for establishing joint enterprise by participation.

Court of Appeal’s decision in Jogee

The Court of Appeal was of the view that attempts to distinguish between joint enterprise by participation and encouragement would amount to a backwards step for the law, particularly given the permeability of the distinction. The court found that the trial judge had correctly considered the actus reus and mens rea of the encourager, and that directions to the jury had been sufficiently clear. It stated that the mental element of the secondary participant was an appreciation that the primary actor might inflict grievous bodily harm, and a willingness to lend support despite this.

The court held that the trial judge’s rejection of the no case to answer submission and the directions to the jury were consistent with previous authority provided by Rahman [2009] 1 AC 129 and Carpenter [2012] 1 Cr App R 11.

Ruddock v The Queen (Jamaica)

The police found a car belonging to a taxi driver who had been murdered. Mr Hudson was in the driver’s seat, while Mr Ruddock was in the back. Mr Hudson admitted to the murder, but the prosecution alleged that Mr Ruddock was also guilty, alleging that he had engaged in a joint enterprise to steal the car, and had tied up the victim before his throat was cut by Mr Hudson.

Mr Ruddock denied any involvement or knowledge, but two police officers gave evidence that he had admitted involvement in statements made. The appellant denied making these statements and alleged that he was subjected to police brutality while in custody. He was convicted of joint enterprise murder. He contends that his conviction was unsafe because inadmissible evidence was put before the jury and there were defects in the judge’s directions on the law.

The appeals in the Supreme Court/Privy Council

The appeal requires the Supreme Court and the Privy Council to decide whether the appellants’ convictions for joint enterprise murder are safe. Among the issues up for consideration is how foreseeable a primary offender’s actions must be in order to establish joint enterprise murder. The Supreme Court will have to consider, in particular, whether the Mr Jogee’s conviction is safe, given the direction that he could be convicted if the jury found that he was aware that his friend might use a weapon in a manner that intended to cause serious harm. It will have to decide whether such cases of joint enterprise ought to require the prosecution to prove that the secondary offender foresaw the fatal act as probable rather than merely possible.

Just for Kids Law and Joint Enterprise Not Guilty by Association were interveners.