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.
Gloria Morrison
Click HERE to see JENGbA's intervention submitted to the UK Supreme Court
