0 Joint enterprise in criminal law ~ Jogee and Ruddock cases

By Unknown | At 2:52 PM | Label : | 0 Comments

UPDATE:  Judgment in Jogee and Ruddock cases will be handed down on Thursday 18th February.  See UK Supreme Court and Judicial Committee of the Privy Council.

Original post:

Today the UK Supreme Court and Judicial Committee of the Privy Council (Lord Neuberger, Lady Hale, Lord Hughes, Lord Toulson, Lord Thomas) begin to hear the cases of Jogee and Ruddock - previous post 14th October 2015

A useful video by the Committee for the Reform of Joint Enterprise explains the problems with the use of joint enterprise to secure convictions - Joint enterprise: the case for reform

Convictions under this concept are often for murder but joint enterprise applies generally throughout criminal law.  Where an individual is convicted of murder the mandatory life sentence will apply.

The Independent 24th October has drawn attention to legally inaccurate letters being sent to some individuals warning them of the possibility of conviction under joint enterprise - Police send letters warning people could be sent to prison 'for being present when a serious crime is committed

The proceedings in the UK Supreme Court may be viewed via the Supreme Court website



The government has resisted calls for statutory reform.  In February 2015, following critical reports by the House of Commons Justice Committee, Mr Chris Grayling (then Secretary of State for Justice) rejected calls for reform - Bureau of Investigative Journalism 5th February.   His predecessor Mr Kenneth Clarke was of similar mind citing the need to "tackle gangs" as the reason for refusing to act.

The Justice Committee reported in early 2012 .  In late 2014, the Justice Committee issued a follow up report to their 2012 report and called upon the Law Commission to review the law.

Previous Post - Forthcoming important cases 14th October 2015

0 Concern over amended Ministerial Code

By Unknown | At 6:02 PM | Label : | 0 Comments

Updated 6th November 2015:

In a new Ministerial Code three vital Ministerial duties appear to have been removed - Ministerial Code October 2015.

They are the duties to uphold:

1.  International law

2.  Treaty obligations

3.  The Administration of Justice.

What remains is a duty to comply with the law and to protect the integrity of public life.

It may be that compliance with the law is to be taken to include international law and treaty obligations but the matter is no longer as clear as it was.  Protecting the integrity of public life might include the administration of justice but that is also far from clear.

It is important to note that whatever "duties" the Ministerial Code imposes, they are not necessarily legal duties enforceable in British courts.  The Code is essentially a political code setting out principles to be adhered to by the government.  

International Law binds the State (i.e. the UK).  Treaty obligations
are binding on the UK as a State in international law but, due to the UK's dualist approach, they are not automatically part of English law.  Legislation is necessary to translate those obligations into duties imposed on the government and enforceable in British courts.  If Parliament enacts such legislation then it could impose legal duties on Ministers and make such duties enforceable in our courts.

What would be the position if Parliament has NOT enacted such legislation?   In that situation, a breach of international law by the UK would entail international political / diplomatic consequences for the UK but it seems that there would usually be no legal liability on individual Ministers though they might well have to face political consequences in Parliament.

Turning back to the document, it is hard to believe that these phrases were removed simply to shorten the document.  It was already succinct.  The lawyer naturally examines the wording of legal documents and, where a change such as this has taken place, it inevitably raises the question of what was intended by omitting the words previously there.  Given the stated plans of government regarding human rights protection, it is little wonder that some lawyers are seeing in this a willingness on the part of government to step back from its tradition as an upholder of international law and of the Rule of Law more generally. 

Rule of Law is a phrase that has never truly been defined but perhaps the best attempt is that of the late Lord Bingham - undoubtedly one of the brightest legal minds of his time.  In his eminently readable book - The Rule of Law - (Allen Lane, London, 2010) - he expressed the rule of law in 8 propositions.  

Number 8 was - The Rule of Law in the International Legal Order: The rule of law requires compliance by the state with its obligations in international law as in national law. 

It is to be hoped that this vital obligation remains as strongly as ever.  Philipe Sands QC  (Professor of Law at University College London) has described the change as "shocking" - The Guardian 22nd October   He is not alone in his concern.  It is reported that Rights Watch are commencing a legal challenge to this change.

It is certainly interesting to note that the government passed off the change as a textual amendment and did not put forward any arguments based on whether the new wording more accurately reflected the constitutional position of Ministers.  Various commentators have offered such arguments - see below for a selection.

Ministerial Code October 2015

Lord Bingham of Cornhill's eight principles of the rule of law

1.  The Accessibility of the Law: The law must be accessible and so far as possible intelligible, clear and predictable. 2.  Law not Discretion: Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion. 3.  Equality before the Law: The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation. 4.  The Exercise of Power: Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably. 5.  Human Rights: The law must afford adequate protection of fundamental human rights. 6.  Dispute Resolution: Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve. 7.  A Fair Trial: Adjudicative procedures provided by the state should be fair. 8.  The Rule of Law in the International Legal Order: The rule of law requires compliance by the state with its obligations in international law as in national law.

Source: Tom Bingham, The Rule of Law (Allen Lane, London, 2010)

This topic has produced a considerable amount of debate on the various blogs.

For a view favouring the alterations to the Code see Spinning Hugo  and, on the same blog, Should international law be followed?

Judicial Power Project - Professor John Finnis - Ministers, international law and the rule of law
where it is said that - "The best explanation of the constitutionally mistaken 1997/2010 formula is that it was a confusingly compressed reminder to Ministers of the standing, morally grounded UK policy of complying with its treaty obligations, of encouraging other states to do likewise, and of supporting the due extension of customary international law and appropriate international institutions."

Public Law for Everyone - The Ministerial Code and International Law - where Professor Elliot states - " ..... in a constitutional democracy founded upon the rule of law, it is appropriate that constitutional actors with the capacity to place the State in breach of international law should be expected — and, as far as possible, required — to conduct themselves so as to avoid such breaches."

UK Constitutional Law blog - The Ministerial Code and the Rule of Law - arguing that the alteration to the Code is a more accurate reflection of the correct constitutional position.

0 A case of begging ~ Criminal Court Charge ~ Speech by Lady Hale

By Unknown | At 12:16 AM | Label : | 0 Comments

Steffan Rowland Thomas - aged 19 - was seen by a PCSO sitting in the doorway of an empty shop in Swansea.  He was asking passers-by for money.  The matter came before Swansea Magistrates' Court where Thomas entered a guilty plea.  The court imposed a conditional discharge for 12 months but also imposed the Criminal Courts Charge (£150), a "victims surcharge" (£15) but declined to impose prosecution costs given Thomas' absence of means.  Read the report in the South Wales Evening Post. 

He was represented in court and, no doubt, his guilty plea was entered after appropriate advice. It was said that Thomas had no fixed address and had acted out of desperation.  Upon arrest, Thomas had said that he did not know that what he did was an offence.  It is reported that Thomas now lives with his grandfather.  



When begging comes before the courts it is usually brought under the Vagrancy Act 1824 s.3
Given its antiquated wording, here is an enactment that ought to be repealed and replaced by some up-to-date provision.

There is no doubt that begging is a social problem just as it was in the years following the Napoleonic Wars when the Vagrancy Act 1824 was enacted.  In recent times, there has been a noticeable increase in prosecutions - see The Guardian 30th November 2014 (Begging prosecutions increase across England and Wales).  One may wonder whether it was truly in the public interest to prosecute Mr Thomas but we only have a press report to go on.

The court imposed a conditional discharge.  Discharges may be imposed when the Powers of Criminal Courts (Sentencing) Act 2000 section 12 applies.

Where a court by or before which a person is convicted of an offence ....... is of the opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment, the court may make an order either—

(a) discharging him absolutely; or

(b) if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding three years from the date of the order, as may be specified in the order.

If Mr Thomas were to be convicted of an offence during the 12 month period of his conditional discharge then he may also be sentenced for the offence for which he received the discharge (section 13).

Section 14 is important in that a conviction of an offence for which an order is made under section 12 above discharging the offender absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under section 13 above.  On this section see R v Patel [2006] EWCA Crim 2689.

The Criminal Courts Charge (previous post of 30th July for details) was imposed as required by law.  If a defendant exercises his right to have the case tried and is then found guilty the charge is significantly higher.  This is seen as placing an incentive on individuals to plead guilty.  The charge has also resulted in some Magistrates resigning.  See The Independent 8th September.  The House of Lords passed a Regret Motion passed condemning the charge (previous post 15th October).


Lady Hale - Justice of the Supreme Court - spoke at Gray's Inn and referred to the Criminal Courts Charge - Magna Carta: Did she die in vain?   She said:  

"The importance of affording a fair trial to persons accused of crime is not always obvious. All

too often, our trial processes seem to the great British public to result in the acquittal of the

guilty. We do, of course, have an obligation to make such processes fair to the alleged victims as well as to the alleged perpetrators. But, as it seems to me, a large part of the importance of a fair criminal process is to reassure the law abiding: if we obey the law, we shall not be punished. If there is a risk of arbitrary and unjust punishment, what incentive is there to obey the law? In this connection, therefore, it is important to scrutinise any incentive to persons accused of crime to admit their guilt to police officers, or to plead guilty in court, in order to ensure that they do not place improper or unfair pressure on the innocent. An example is the recently introduced criminal court charge, levied on those who are convicted after having pleaded not guilty. I make no comment on whether this is, or is not, improper or unfair. My point is only that such pressures to plead guilty have always been

rightly treated with suspicion in our common law world."

 

0 Poor doors and Rich doors - an interesting case!

By Unknown | At 5:06 PM | Label : | 0 Comments

Update: Lisa Mckenzie was acquitted and see The Guardian 21st October - Class war protester cleared of criminal damage at 'poor door' demonstration.

Yesterday, via Twitter, I came across a post on the "Now That's What I call History" blog of Dr Lucy Robinson - Persons Unknown.  The blog highlights the forthcoming appearance, at Stratford Magistrates' Court, of Lisa Mckenzie.  Dr Robinson wrote:

Lisa Mckenzie, whose book Getting By, is compulsory reading on our first year History course and whose methodology has inspired much of my recent work, has been summoned to Stratford Magistrates Court to defend herself against three charges relating to the Poor Door Protests in April 2015.  She was arrested on 1 account of criminal damage and later charged with 2 counts of public order offences.  Since then the Crown has been unable to gather evidence directly linking her to these offences.  They have instead shifted to a charge of ‘Joint Enterprise with Persons Unknown’.  In Lisa’s words ‘this means that I can be charged and held responsible for any actions that persons unknown have engaged in…The Police plan to issue me with a Criminal behaviour order on conviction which will limit my freedom of speech and movement for 5 years.’

Lisa Mckenzie works as a research fellow at London School of Economics (LSE).  Her webpage states:

" ..... my current research interests especially relate to the precarious nature of particular groups in our society and the vulnerability they experience through insecure housing, work, social benefits, health care, and education."

Mckenzie stood as a Parliamentary candidate for Chingford and Woodford Green in the 2015 General Election.  She fought the election campaign as a "Class War" candidate and achieved just 53 votes.  Iain Duncan Smith was returned as MP with 20,999 votes and he is now Secretary of State for Work and Pensions.  This blog is not the place to analyse his policies but it suffices to say that they are politically controversial and considered by many to be particularly detrimental to already vulnerable individuals.  McKenzie's LSE webpage describes her role and goes on to say - "In addition to my academic work at the LSE I am a political and social activist engaging with local community protests, and campaigns ....."  McKenzie also has a page on The Guardian website.

Beyond the information in the Lucy Robinson blog, we have no details of the charges against Mckenzie.  Dr Robinson's post points to two topics of legal interest - (a) Criminal Behaviour Orders and (b) Joint Enterprise.

a) Criminal Behaviour Orders (CBO)

These came into force from 20th October 2014 and are the replacement for the former Anti-social Behaviour Orders (ASBO).  The relevant legislation is the Anti-social Behaviour, Crime and Policing Act 2014 Part 2.

Section 22 commences:

(1) This section applies where a person (“the offender”) is convicted of an offence.

(2) The court may make a criminal behaviour order against the offender if two conditions are met.

(3) The first condition is that the court is satisfied, beyond reasonable doubt, that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person.

(4) The second condition is that the court considers that making the order will help in preventing the offender from engaging in such behaviour.

Hence, conviction for a criminal offence is a pre-requisite to the making of a CBO and the clear aim of an order is to prevent the individual causing further harassment, alarm or distress to any person.

It is the COURT that decides whether to impose an order but may only do so on the application of the prosecution.  (The Police may request a prosecutor to apply but the prosecutor ought to exercise his own judgment).   A CBO may only be imposed in addition to a sentence imposed for the offence, or, an order discharging the offender conditionally.

In deciding whether to make a CBO, the court may consider evidence led by the prosecution and evidence led by the offender.  It does not matter whether the evidence would have been admissible in the proceedings in which the offender was convicted.  (See section 23).

 

Whether we are seeing here the use of the CBO as a method of preventing an individual from engaging in active protest remains to be seen.

If the court decides to issue a CBO it would have to be for a minimum of 2 years in the case of an adult offender.  The maximum is 5 years.

Further information at Crown Prosecution Service - Criminal Behaviour Orders and at Home Office Statutory Guidance July 2014

b) Joint enterprise:

Dr Robinson's blog states that McKenzie is charged on the basis of joint enterprise with "persons unknown."  As Robinson's blog indicates:

"There has been considerable public concern about the use of Joint Enterprise in cases of assault and homicide.  In 2011 the House of Commons Justice Select committee called for immediate and urgent ‘guidance on the use of the doctrine when charging. In particular, we would welcome guidance on the relationship between association and complicity’. 

We are awaiting - but not holding breath - for Parliament to act on that Select Committee report.  However, important cases are to be heard in the near future by the UK Supreme Court and the Judicial Committee of the Privy Council - see previous post of 14th October.  This may clarify some aspects of "joint enterprise."

Joint enterprise liability can apply to any offence but the more controversial convictions have arisen in murder cases.  In an article for Criminal Law and Justice Weekly (Joint Enterprise Murder - 12th March 2015), Felicity Gerry QC wrote:


"Broadly speaking, the law on joint enterprise arises in 3 distinct situations:

(i) Two people at the same time about to commit the same crime as the same moment, so, for example, two people intend to kill the same person, and they both have weapons which they use against the victim at the same time. That victim dies from both of those wounds. In that case they are both murderers and therefore principal offenders. They have both committed to the victim’s death and with an intention to do so. They have acted on a joint enterprise. Here, the concept of joint enterprise is uncontroversial.

(ii) The second situation would be when one person commits murder as a principal offender but someone else either assists that murder intending to assist or encourage the murder. For example, if one person supplies a gun to the principal. This can be more complicated if the assister is far away from the crime but, subject to relevant evidence, again, assisting in this context is relatively uncontroversial.

(iii) It is the third situation where controversy lies: Say, for example; two people intend to commit a burglary, during the burglary one of them pulls out a knife and stabs the victim (who is also the occupant of the house) and the victim dies. The person who stabbed the victim will be the principal and will be charged as a murderer. That is not controversial.

However, the current state of English law says that the other person, who didn’t kill the deceased, will be convicted of murder, even though he didn’t in fact assist or encourage the murder, provided they foresaw the murder being committed . This means that, if an individual thinks the person he is going along with has a knife or a weapon or they might have a weapon or they might have a personality that might resort in violence and they do commit murder, then as long as at least one of those is foreseen as a possibility then the secondary party will be convicted of murder as well. In all of these cases, if conviction follows, then the sentence will be a mandatory life sentence."

The Crown Prosecution Service have this to say in relation to this third form of joint enterprise liability:

"Where P and D participate together in one crime (crime A) and in the course of it P commits a second crime (crime B) which D had foreseen he might commit.   

In this scenario, D may act as a principal or an accessory to crime A. D is also liable for crime B, as an accessory. It is not necessary that D wants or intends this further offence to be committed, although D must have foreseen that P would or might carry out the conduct element of offence B with the necessary fault element of offence B.  This type of secondary liability is sometimes referred to as “parasitic liability” or “parasitic accessory liability”. Most of the case law in this area involves cases of murder and manslaughter, although the principles are applicable to other offences." (My emphasis in Blue).

A difficult with this concept is establishing, by admissible evidence, the degree of foresight necessary.   The phrase "persons unknown" must, in this context, be particularly problematic.  It is hard enough to ascertain the foresight of the defendant (D) in cases where the principal offender is known to D.  How can foresight of what "persons unknown" might do be ascertained and attributed to the defendant?  Is there a danger that the prosecution view of the general ethos of a particular protest group will be attributed to the defendant?  On what basis would such a generalised view be formed?  If so, that could be a major step away from needing to prove the foresight of the individual defendant.

For more information on this vexed topic see Crown Prosecution Service - Joint Enterprise Charging Decisions - December 2012

Footnote:

Although details are lacking, Dr Robinson has highlighted what may prove to be an interesting case legally.  It will touch upon the ability to protest about government policy (or its consequences); the proper use of criminal behaviour orders and joint enterprise.  One to watch carefully .....!

A further joint enterprise case is that of Timi Spahiu reported in The Guardian 25th September 2012.