The Supreme Court concedes the law of joint enterprise was wrongly interpreted for thirty years. Just for Kids Law intervened in the case, represented pro bono by barristers from Doughty Street and Garden Court: Francis FitzGibbon QC, Caoilfhionn Gallagher, Joanne Cecil and Daniella Waddoup.
This decision marks a sea-change in a highly controversial area of law. It corrects a historic mistake in the law of joint enterprise, which until now had exposed people to being found guilty of the most serious offences on the weakest legal basis. The effect of the Supreme Court’s decision is that a member of a group cannot be found guilty of an offence unless there is proof that he positively intended that it should be committed. Mere foresight of what some one else might do is not enough. This will have a huge impact on the young and vulnerable clients that JfKL represents, who can find themselves unwittingly drawn into dangerous situations, and will now get better protection from the law. The judgment given by Lord Hughes and Lord Toulson makes the following points:
- That the common law took a wrong turn in the privy council decision of Chan Wing-Siu  AC 168 which allowed secondary parties to be convicted on the basis of mere foresight of an offence. If two people set out to commit an offence, and in the course of doing so one committed a different offence, they would both be guilty if the second person foresaw the possibility that his accomplice might commit that different offence. Notwithstanding that he may not have assisted or intended that his accomplice commit that different offence.
- This statement of principle that has been followed by the courts over the intervening years is now reversed.
- The error came about partly because the courts have previously conflated foresight and authorisation. Whilst foresight may be evidence of an intent to assist in the commission of a crime, it is not conclusive of such an intent.
- There is no reason why ordinary principles of secondary liability should not be used in all cases.
- Ordinary principles of secondary liability include “conditional intent”, for example a member of the group who robs a bank may know that his accomplice has a gun and may intend that his accomplice shoot anyone who resists them (but only if someone resists) . He is still guilty of murder if his accomplice does meet with resistance and uses the gun to kill.
- In cases of spontaneous violence a participant who joins in during the violence may still be guilty of murder if he intended to assist the deliberate infliction of serious injury. However where a person joins in a violent attack without an intent to assist in the causing of death or really serious bodily harm, but which results in death, he will be guilty of manslaughter, not murder.
- Putting the law right does not render invalid all old convictions arrived at using these principles. The court of appeal will only allow an appeal out of time where there has been a serious injustice, and the fact that a misstatement of law has been corrected does not necessarily provide a good reason for an out of time appeal.