Large numbers of those found guilty of murder under ‘joint enterprise’ rules may appeal to have their convictions overturned after the UK’s highest court ruled that the law had been wrongly interpreted for 30 years.

The supreme court declared on Thursday that a key test imposed by judges in assessing guilt in joint enterprise cases – where the accused acts in conjunction with the killer but does not strike the blow that causes death – had been incorrectly applied.

The judges’ unanimous decision is likely to trigger a rush of applications to the court of appeal by those convicted under a specific category of evidential rules, where defendants have “foresight” of what would happen before the murder was committed.

The five supreme court justices said that, for decades, courts had been in “error” in treating the fact that a secondary, co-accused had foresight that the principal attacker might carry out a killing as sufficient proof of guilt in assisting or encouraging them.

“The correct position is that … foresight of what the principal might do is evidence from which the jury may infer that he intended to assist or encourage to do so,” Lord Neuberger, the president of the supreme court said, “but it is for the jury to decide on the whole evidence of whether he had the necessary intent.”

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The judgment was described by Deborah Madden, from the Jengba (Joint Enterprise Not Guilty by Association) campaign, as a major turning point in British justice.

“The joint enterprise rule has been used to get mass convictions without evidence. It has caused devastation for families. We know of 650 people who we think will be affected by the ruling - and we don’t know everyone,” she said.



The judgment on Thursday came in relation to two joint enterprise cases, one in Leicester the other in Jamaica, where men were convicted of murder. Both murder convictions have now been set aside.

The British case involved Ameen Hassan Jogee, who is serving a life sentence. Jogee was convicted of murder even though it was his friend, Mohammed Adnam Hirsi, who killed their victim, Paul Fyfe, with a knife taken from the kitchen. Jogee was outside the house when the killing took place.

Jogee will remain in prison following the supreme court decision and his lawyers will have to make submissions about whether there should be a full retrial or whether his murder conviction should be replaced with one of manslaughter.



Changes to jury directions may result in fewer murder convictions involving gang fights, the supreme court acknowledged. “In cases where there is a more or less spontaneous outbreak of multihanded violence, the evidence may be too nebulous for the jury to find that there was some form of agreement, express or tacit.”

It could also lead to the Crown Prosecution Service revising its policy on charging suspects. A CPS spokesperson said: “We are carefully reviewing the judgment handed down today to determine its impact and our subsequent approach to such prosecutions.”

In a highly critical report last year, the Commons justice select committee suggested that many people convicted of murder under joint enterprise rules should have been charged with manslaughter or lesser crimes and that the threshold for establishing culpability should be raised.

The long-established principle of joint enterprise allows defendants to be found guilty of offences committed by another person if they have agreed to act together for a common purpose. Problems arise around what are said to be reasonably foreseeable consequences of any agreement.

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Almost 500 people are thought to have been convicted of murder between 2005 and 2013 as secondary parties in joint-enterprise cases. Many were recorded as gang-related attacks.

The court of appeal is now expecting those who believe they have been wrongly convicted under the old foresight rules to apply for their cases to be reviewed. Recalibration of the evidential rules will not require parliament to re-examine any legislation; joint enterprise has developed through the common law.

The supreme court judgment traces the error to a 1984 judgment by the judicial committee of the privy council.

The new decision, the supreme court says, brings “the mental element required of a secondary party back into line with that which is required of the principal and to bring the law back to the principles which had been established before the law took a wrong turn”.

In the Leicester case, Jogee and his friend Hirsi visited the house of Naomi Reid on the night of 9 June 2011 supposedly for the purpose of consuming drugs. Reid asked them to leave before Paul Fyfe, with whom she was having a sexual relationship, returned. They left. Hirsi returned but was taken away by Jogee an hour later. Both returned again together. Hirsi went inside the house. Jogee stayed outside close to the front door, allegedly damaging Fyfe’s car.

There were furious exchanges between Fyfe and Hirsi. Fyfe went upstairs to put some clothes on, whereupon Hirsi went to the kitchen and took the knife. Jogee, still outside the house, threatened to hit Fyfe over the head with the brandy bottle in his hand. Jogee was said to have been “egging” Hirsi on to harm Fyfe. Hirsi then stabbed Fyfe with the kitchen knife, killing him. Jogee and Hirsi were both subsequently found guilty of murder and sentenced to life in prison.

Jogee appealed partially on the basis that, in these circumstances, foresight of a mere possibility that Hirsi would use the knife with the intention of causing at least serious bodily harm to Fyfe was not enough to prove a conviction of murder as against him.



Cases involving joint enterprise killings where there is clear evidence of someone encouraging murder to be committed are unlikely to be affected by the supreme court ruling. Appeals are likely to come from cases where evidence is less clear that the secondary defendants was aware of the consequences of what would happen.

The supreme court’s judgment was welcomed by many lawyers and organisations who have campaigned to change the law. Francis FitzGibbon QC, of Doughty Street Chambers, said: “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.

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“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 or she positively intended that it should be committed. Mere foresight of what someone else might do is not enough.”

Shauneen Lambe, director of Just for Kids Law, said: “In the last 10 years, [we have] seen a rapid increase in children being charged and convicted of the gravest of offences, including murder, under the controversial extended principle of joint enterprise, which means that they did not even have to intend an offence to happen to be found guilty of it. This has led to numerous miscarriages of justice – with vulnerable and learning-disabled children locked up for crimes that they did not intend to happen nor were they directly involved in.”

Sophie Walker, director of the not-for-profit Centre for Criminal Appeals, said: “We very much welcome today’s judgment to the extent that it offers new lifelines to the innocent people serving time in prison as a result of this disproportionate and ill-used doctrine.”



Vera Baird QC, the former solicitor general, said: “This will be extremely unsettling for the families of murder victims who are likely to have their suffering re-opened as cases are re-considered. It has been described rightly as a ‘lazy law’ and its exit will force more detailed care in the approach to dealing with defendants and their states of mind.

“Guilt by mere association has never existed in UK law but this ruling presents an obligation to reconsider better fairness for those who get caught up in crimes they did not intend and it will clearly protect young people who could have been convicted on an assumption of what was in fact their immature lack of foresight.”

A statement from Jogee’s solicitor said: “The law had incorrectly and unfairly developed to convict secondary parties on the basis of mere ‘foresight or contemplation’ of what someone else might do.



This over-criminalised secondary parties, particularly young people like Ameen Jogee. The consequence was that people were convicted of serious offences, committed by others, and imprisoned for lengthy periods.”

Sandra Paul, a criminal solicitor at the law firm Kingsley Napley, said: “The ripples from today’s decision will transform the fairness of future trials and potentially the whole lives of those who would otherwise have been caught in the joint enterprise trap. Guilt by association fails to provide justice for those accused or victims of crime.”

Juliet Lyon, director of the Prison Reform Trust, said: “This judgement brings useful clarity to a complex area of law which has been the subject of increasing concern from the cross-party justice committee, criminal justice professionals, policy-makers, penal reformers and others. In some instances sentencing under joint enterprise has acted as a dragnet. For families, victims and offenders, this judgement should prompt more precise and proportionate decisions at each stage in the criminal justice process.”

Sean Caulfield, criminal partner, at the law firm Hodge Jones and Allen, said: “The test since 1984 was whether this second person had foreseen the possibility that the knife man would commit a serious assault. If this second person foresaw this, he was as guilty as the perpetrator.



“Yet today the Supreme Court ruled that in 1984 the law took a wrong turn and has imposed a new equally simple test: to convict a secondary party it now must be proved beyond all reasonable doubt that they ‘had an intention to assist or encourage the main party or offender’. Any foresight of the consequences of what might happen would be evidence of an intention of the second person, but would not on its own be sufficient.”



