Pushing at an open door? Julian B. Knowles QC Discusses Joint Enterprise after Jogee and Ruddock
26 Tuesday Apr 2016
The recent judgment of the Supreme Court in R v Jogee; Ruddock v The Queen (Jamaica)  UKSC 8 was remarkable not only in that it overruled more than thirty years of case law, but also in that it concerned a controversial area of criminal law about which there was a great deal of public interest. As Julian Knowles QC remarked in his lecture of 13 April, there can be few legal principles which are given their own BBC 1 drama (the critically-acclaimed Common), but the doctrine of joint enterprise has been the subject of often heated debate in the media for some time.
Mr Knowles’ lecture, hosted by Matrix Chambers and entitled Joint Enterprise after Jogee and Ruddock: What Next?, provided a singular insight into the arguments surrounding this historic judgment. Appearing for Ruddock, Mr Knowles had successfully argued the appeal and was therefore in an authoritative position to provide guidance regarding the new law and its implications.
Mr Knowles began by explaining that the form of joint enterprise in question, Parasitic Accessorial Liability or “PAL”, was a distinct form of liability established by two cases, Chan Wing Siu v The Queen  1 AC 168 and R v Powell and English  1 AC 1. PAL had been highly criticised since its inception, and the question of law at the heart of the appeal in Jogee and Ruddock was whether the common law had taken a wrong turning in these two cases. A summary of the facts in Jogee and Ruddock along with the Court’s findings is available here.
It was submitted on behalf of the appellants in Jogee and Ruddock that the judgments in Chan and Powell and English were based on a flawed reading of earlier authorities and questionable policy arguments. Mr Knowles took the audience through a brief history of the law on secondary liability, explaining that up until Chan it had been underpinned by the requirement of intent on the part of the second defendant. The development of PAL set a lower test for the second defendant, requiring that he simply foresaw the possibility that the principal might commit the crime in question.
Mr Knowles remarked that it had been a centrepiece of the Crown’s arguments in Jogee and Ruddock that, although the law may have been inadequate, change was a matter for parliament and the principle of PAL was too firmly entrenched in the common law. The Court, however, adopted a position of “we created it, we can uncreate it”. He noted that in fact, the impetus to reconsider PAL came from the Supreme Court itself. When the order granting leave to appeal was received, it was accompanied by a letter from the Supreme Court registry indicating there would be a joint hearing of the Supreme Court and the Privy Council, and advising the appellants to reconsider and address those cases from the 1960s onwards leading up to the decision in Chang. “I wouldn’t say we were exactly pushing at an open door” remarked Mr Knowles, but it appeared that the court had been looking for a suitable case to re-examine PAL for some time.
In allowing the appeals, the Court’s key finding was that foresight by a secondary party was not sufficient to establish the secondary party’s guilt, and that it must be proved that the secondary party intended to assist to commit the crime. Foresight was just a rule of evidence, and where Chan and Powell and English had erred was in taking a rule of evidence and turning it into a rule of law. The effect of Jogee and Ruddock was therefore to return the law of secondary liability to its pre-1984 position.
In assessing the implications of the judgment, Mr Knowles turned to consider the position of those who had been convicted of murder in a prosecution case based on PAL and are currently serving life sentences. No accurate statistics are available concerning how many individuals are currently in this position, but Mr Knowles estimated there to be hundreds serving life imprisonment with long minimum terms as a result of PAL. In the aftermath of Jogee and Ruddock, the media generated “a lot of heat but not much light” regarding the potential impact of the judgment, tabloid headlines claiming that, for example, the killers of Steven Lawrence may be set free under the new law. Mr Knowles pointed out that the convictions of Dobson and Norris were not in fact based on PAL, but rather as they were part of a pre-planned attack in which serious harm was intended, their convictions were based on the well-established doctrine of common purpose secondary liability.
Mr Knowles acknowledged that there is, however, an issue concerning what approach the Court of Appeal will take, pointing out that the Supreme Court in Jogee and Ruddock sought to manage the expectations of those who had campaigned for a change in the law. The effect of putting the law right will not be to render invalid all convictions which were arrived at by applying PAL, as the outcome in many cases may have been the same. Despite the historic nature of the judgment, Mr Knowles emphasised that it would not have the effect of “opening the jailhouse doors.” He did, however, emphasise that there were many reasons why leave to appeal may be granted, not least the potential impact on the public conscience of allowing those convicted through the application of PAL to remain imprisoned for many years.