R. v Jogee in the Supreme Court 27th October – 29th October 2015
Earlier this year in March I received a phone call from the brilliant Human Rights Solicitor Simon Natas who has been helping JENGbA from our early days, pro bono. He is an overworked and most of the time pretty exhausted solicitor but in this call he was positively giddy! He had just found out that the Supreme Court were looking at a case which was based on joint enterprise, something so important that he told us JENGbA should request that we ‘intervene’ as an interested party. Somewhere along the line of campaigning someone in the press described me as a solicitor and I need to clarify I have no legal qualifications whatsoever except what I have learnt in the course of JENGbA’s journey for justice. So hearing the word intervention meant diddly to me and as ever Simon patiently explained its importance so I could go on to explain it to the rest of the campaigners. What he urged was that we find out what the question posed by the appellant’s QC Felicity Gerry was to the Supreme Court. We found the question, it was as follows:
Certified that a point of law of general public importance was involved in the decision to dismiss that appeal against conviction namely:-
“(i) In a case such as this where ‘encouragement’ to joint enterprise is concerned, a jury should be directed not to convict unless they are sure that the defendant knew there was a weapon or use of a fatal weapon was a ‘real probability’. The language of risk and possibility disregards the standard of proof. (In this case, the direction should have been ‘realised Hirsi would’ use a weapon not ‘realised Hirsi might’.)
(ii) The current state of the law on joint enterprise over-criminalises secondary parties.
The second part of question was exactly what JENGbA have been shouting from the roof tops for five years now; though some of the prisoners we are supporting are not even secondary parties as they played no role whatsoever! And so Simon, along with Doughty Street’s QC Tim Maloney and barrister Jude Bunting clarified why JENGbA were in such a strong position to intervene, meaning that our evidence would be beneficial to the help the Supreme Court Judges decide the outcome of the case. This request alone cost the campaign £800 (helped by a grant from Trust for London) but once we were granted permission we knew it was too important a development to expect the lawyers to work pro bono. Jon Robbins of The Justice Gap was writing an article around collective punishment and contacted us, during that conversation he mentioned that he had interviewed a woman called Julia Salasky who had set up a recent crowd funding site called CrowdJustice. After two meetings with Julia, JENGbA had a site to crowd fund £10,000 for the Intervention, she did everything, she was and is amazing and without her input and guidance we would never have reached our target, which we did with a week to spare (the money must be raised in 4 weeks otherwise all the pledges are returned) and it was put directly into a JENGbA client account with ITN solicitors.
And so the build up to the hearing was one of tense anticipation. Could this really be the breakthrough we have grafted so long and hard for to get justice for our loved ones? Simon warned us not to get our hopes up as the floodgates won’t magically open but our campaign is solely one of hope so as expected lots of our families came from around the country to support Rachel, Ameen Jogee’s mum and listen to the proceedings. We had learnt the Privy Council had attached a second joint enterprise case on to Jogee’s from Jamaica R. v Ruddock.
One of the things I love about JENGbA campaigners is that they like me had no legal background before they got involved in our campaign but we can all understand nuanced areas of law that lawyers constantly described as complicated. Our twitter feed was in overdrive! Here are some examples:
“The Crown in Ruddock’s case argued contemplation of a crime coupled with continued presence at the scene amounts to tacit authorisation.”
“Parasitic accessorily liability has been over stretched and now come off the rails so that it is on a monorail” Felicity Gerry.
“This court must rule if the common law principle based on the Wing Su Chan need reform. Crown argued that test for JE is robust even if there is a complete lack of mens rea.” Felicity Gerry
Lady Hale “one person’s common sense could be another’s hopeless idiocy.” When informed by the CPS that the jury are also minded to use their common sense.
“Judges asked how the test worked in spontaneous cases so the Crown argued that the foresight element was sufficient if the Crime A lead to Crime B.”
“Long discussion on poaching. Presence at Scene is encouragement”
“Privy Council for Ruddick – Jamaica has death penalty and some would say that in ‘some’ cases the mandatory Life sentence is harsh.”
“Took CPS a full day to explain it to 5 senior judges – how are juries going to understand it.”
One of our campaigners attending wrote this in a letter to the guys in prison he is supporting and sent it to us. It is so apt it has to be included in this blog.
"On Wednesday I attended the Supreme Court to observe the handling of the cases enclosed with this letter. Talk about arguing about how many angels can fit on the head of a pin! The whole proceedings consisted of the lawyers discussing the minutiae of terms and assumptions about intent. Terms such as ‘parasitic accessory liability’, ‘shared objective’, ‘presumed intention’ (understood without intention), ‘common purpose relying on agreement, tacit or otherwise’, ‘intention to assist’, ‘reluctant agreement’, ‘likelihood to commit’, ‘contemplation of the commission of the crime’, ‘contemplation or foresight of the crime’, and then there were the discussions of the distinctions between ‘common purpose and common intention’, ‘joint venture and joint enterprise’, joint plan and joint intent’, and the CPS use of the terms ‘possibility’ and ‘inference could be drawn’ really made a joke of the trial. The most useful phrase used by the defence appeared to me to be ‘criminal liability lies in participation’. Through the whole session, I wanted to stand up and shout, “For god’s sake, skip the jargon and cut through to the unfairness of the law on joint enterprise and deal with the stupidity of convicting people who did not commit the crime!” Lee Pascal
Lee nailed it, a lot of jargon that presumes that ordinary people can’t understand they are talking rubbish about an outdated doctrine that they spend nearly half a day saving was relevant via principles involved in poaching! How is poaching relevant to the 21st Century. A 17 year old lad who attended whose mum is in prison serving life, said he could follow the proceedings even though the arguments didn’t make much sense! It has taken a while to write this blog because as always we JENGbA volunteers are inundated with emails, new cases, requests to do talks at Universities and other functions, such as the Being A Man Festival at the Southbank recently, but also it is such an important development for the campaign that we are all terrified the Judges will say it is a matter for Parliament. Considering they are the most brilliant legal minds in the country we can’t see how a load of punitive MP’s who always want to be seen as ‘tough’ on crime can solve this mess. We have written to Michael Gove to ask what he intends to do regarding the Justice Select Committee last report recommending ‘urgent reform’ he has replied that MOJ are looking into it. They are waiting to see what the Supreme Court do is what they are looking into. If the CPS are allowed to continue charging innocent bystanders or people not even at the scene they have not only lost their moral compass they are smearing the image of the UK Justice System being one of the finest in the world to one that is worse than North Korea. But as I said JENGbA’s campaign is one of hope and we truly hope the Judges recognise joint enterprise is not fit for purpose in the 21st Century when a simple phone call can give someone a life sentence.
Click HERE to see JENGbA's intervention submitted to the UK Supreme Court