Following the 2014 screening of the BBC One drama “Common”, which was followed up by the documentary entitled “Guilt by Association”, a wave of public opinion and intrigue rose on the subject of the law surrounding joint enterprise.
I have had the privilege of attending the annual National Miscarriage of Justice events and meeting many families who have been directly affected by the misinterpretation of this law by the Courts for over 30 years.
The roots of the misinterpretation of the law relating to joint enterprise dates back to the 1980’s and a case in Hong Kong’s High Court.
Chan Wing-Siu, Wong Kin-Shing and Tse Wai-Ming stood trial in the Hong Kong’s High Court for the alleged murder of Cheun Man-Kam.
Hong Kong, then being under British rule, based their legal framework on the English common law and as a result the Court applied English law and standards.
The Court heard evidence that the three defendants went to the home of a prostitute, Lam Pui-Yin. Two of the defendants went into the kitchen to confront Lam Pui-Yin’s husband while the third defendant prevented Lam Pui-Yin either entering the kitchen or summoning help. The group had attended the home armed with knives.
The two men in the kitchen stabbed the victim to death after one shouted "stab him down". The three individuals then left the scene, not before slashing the Lam Pui-Yin before they left, shouting "stab her down too".
The jury unanimously found all three defendants guilty of murder, on the direction of the Judge.
During the trial the Judge directed the jury to find the defendant who was in the room guarding the deceased’s wife guilty simply on the basis that he was guilty of the same crime as the '”primary killer” as he could have foreseen the possibility that the primary killer might act as he did.
This case has been followed by the Judiciary in England and Wales when directing juries in joint enterprise cases until yesterday.
This imbalance in the criminal law has led to frequent occasions were innocent individuals have been charged with murder, which carries a mandatory life sentence, taking the life changing decision to plead guilty to the lesser charge of manslaughter rather than risk a life sentence if wrongly convicted of murder.
The law in relation to joint enterprise is an enormously controversial area and no doubt public opinion will be split as to whether this is “fair and just”. It is greatly satisfying to me that finally this tremendously controversial area, which has received widespread condemnation by numerous Criminal Lawyers following monumental miscarriages of justice, has been addressed by the countries highest Court, The Supreme Court.
Yesterday, The Supreme Court ruled that the law concerning joint enterprise, in which co-accused could be convicted of murder even if they do not administer the fatal blow, had taken a “wrong turn” in the 1980s.
This has led to the position where the Crown Prosecution Service could secure a conviction simply by proving that that an individual, or group of individuals, had foresight that the person striking the fatal blow could cause the serious harm that resulted in the death of the deceased.
Following yesterday’s announcement the Crown Prosecution Service will now have to prove that an individual has actively assisted in, or encouraged, the killing to secure a conviction for murder.
It is important to understand that the result of The Supreme Court ruling will not result in hundreds of convicted murderers launching appeals against their convictions, or that those individuals who have truly participated in criminal activity will go unpunished. It will however mean that there is now a fairness in the way in which the Court approaches this area of law to ensure that true justice is achieved.
The intention of the Supreme Court was illustrated by Lord Neuberger who stated: “This does not mean that a person who took part in an unlawful venture.... would go scot-free”.
The analysis of yesterday’s ruling will be taking place for some time to come however, for those defendants finding themselves before the criminal Courts, or who have been convicted in these circumstances, the best advice is to appoint an expert Solicitor and Barrister who has had experience in this complex area of law.