Apologies for the clickbait title, but anyone taking an exam (BPTC or Recorder) may well be asked about joint enterprise, now that Lord N has agreed that the law has taken a wrong turn. The correction manoeuvre has only taken 31 years, which for the UK is equivalent to Ferrari-like handling.
On the other hand, it’s not so much a wrong turn as a slight diversion. Will it make a lot of difference? I don’t believe so. The reality is that almost every defendant to whom this issue relates has not given evidence (including Mr Jogee himself – see §104). The issue is thus transformed from whether an accused foresaw that a murder might take place to whether an accused had an intention to inflict violence (really serious harm for murder, violence for manslaughter). Knowledge of a weapon and its type (previously used to prove foresight) is now merely evidence of intention. Its sensible. It’s not earth-shaking.
What I think this will do is impose even more pressure on an accused to give evidence. A direction might go like this:
Members of the jury, in considering whether Mr X intended to inflict really serious harm you must consider his case separately from that of Mr Y who is alleged to have stabbed the deceased. What evidence might there be to establish whether he had that intention? Well, first consider whether he knew that Y had a knife. Then the circumstances in which the knife was produced. Then anything Mr X has said about his own knowledge and intention. You will note that he did not give an account to the police or give evidence. You are thus unable to rely upon anything he has said. The prosecution assert that the fact of the knife being taken to the scene, being produced in full sight before it was used, and being commonly spoken about by these accused in text messages and Facebook posts, all provide a basis upon which you can be sure that Mr X knew there was a knife and that it was likely to be used. From that conclusion, say the prosecution, you can be sure that Mr X intended that the knife be used. There is no evidence that he intended merely to scare the deceased. If you are sure the accused went to the house intending violence then it is open to you to conclude that the violence intended was serious.
As against that the defence argue that there is no evidence that Mr X intended anything. Well, of course, to the extent that Mr X has chosen not to respond to the questions put to him, nor to give evidence, that is correct. But it is open to you to draw inferences from the facts as you find them to be. If you are sure that Mr X knew that Mr Y had a knife, that he may – if circumstances required it – use it, then you are entitled to conclude that Mr X himself intended that the person upon whom the knife was used should suffer at least some injury. If so then Mr X is at least guilty of manslaughter. If you are also sure that he intended the injury to be really serious, then the proper verdict is guilty of murder.
It’s a more interesting question as to whether Mr X is guilty of murder if he intends only really serious harm via, say a baseball bat, and then Mr Y pulls out a gun. On the basis of today’s decision Mr X would again be guilty of murder. However, I would have thought (hope) that a decision to kill with a weapon that one accused knew nothing about would mean that an intention to commit gbh would not be enough, even though it is the requisite intention for murder.
What all these factual issues have in common is that, to be acquitted, defendants should give evidence. In gang cases that is usually impossible unless everyone is running a cut-throat defence. What we advise our clients is about to get very interesting…