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'Thousands to seek legal advice' over joint criminal enterprise ruling

Published 18/02/2016

Supreme Court justices are preparing to give their views on a legal issue highlighted in Ian McEwan's novel about a judge
Supreme Court justices are preparing to give their views on a legal issue highlighted in Ian McEwan's novel about a judge

Thousands of prisoners will seek legal advice after the Supreme Court ruled that trial judges had been wrongly interpreting a law relating to joint criminal enterprise for 30 years, lawyers predict.

But solicitors say it is impossible to know how many cases might reach the Court of Appeal or how many convictions might be overturned.

A panel of Supreme Court justices said on Thursday that prosecutors, judges and jurors had to take a different approach when dealing with defendants accused of being involved in some kinds of joint criminal enterprises.

Justices said the interpretation of part of the law relating to joint enterprise - which can result in people being convicted of assault or murder even if they did not strike the blow - had taken a "new turn" in the mid-1980s.

Senior judges had decided in 1984 that a "secondary party" would be guilty of murder if he or she "foresaw" the possibility that the "principal" might act with intent to cause death or serious harm

The Supreme Court said that development was wrong.

Justices said it was not right that someone should be guilty merely because they foresaw that a co-accused might commit a crime.

They said jurors should view "foresight" only as evidence to be taken into account, not as proof.

Five Supreme Court justices had analysed the issue at a hearing in London when considering an appeal by a man who was convicted of murder after egging on a friend to stab a solicitor.

Ameen Jogee and Mohammed Hirsi, both in their 20s, were given life sentences at Nottingham Crown Court in March 2012 after being convicted of Paul Fyfe's murder.

Jurors heard that Hirsi stabbed Mr Fyfe - a former policeman - at a house in Leicester in June 2011 while being egged on by Jogee.

A judge imposed a minimum 22-year term on Hirsi, who lived in Leicester, and a minimum of 20 years on Jogee, who was of no fixed address.

Jogee's minimum term was cut to 18 years by the Court of Appeal.

The Supreme Court allowed Jogee's appeal against conviction.

Justices said he would stay in prison pending a decision on whether he should be re-tried for murder or re-sentenced on the basis that he was guilty of manslaughter.

Mr Fyfe's widow, Tracey, 53, from Melton Mowbray, Leicestershire, said the ruling had left her "absolutely gutted".

She said she wanted Jogee re-tried on a murder charge.

Lord Neuberger, the President of the Supreme Court, had headed the panel which analysed the joint enterprise issue.

He said trial judges could not be criticised for following a "principle" established by senior members of the judiciary three decades ago.

Lord Neuberger said the Supreme Court decision would not affect all joint enterprise cases.

And he said it did not "follow as night follows day" that people convicted under the "erroneous rule" would "not otherwise have been convicted".

Solicitors predicted many calls from prisoners.

"I think lawyers can expect many calls. Probably running into the thousands," said Maria Theodoulou, a partner at Stokoe Partnership Solicitors.

"This ruling will reverberate with those who have been convicted of joint enterprise offences but this does not automatically mean that can can appeal their convictions."

She said it was an "outrage" that a "fundamental error" had gone uncorrected for 30 years.

Sean Caulfield, a partner at law firm Hodge Jones & Allen, said he also expected calls to lawyers to run into the thousands.

He added: "This judgment does not overturn previous convictions automatically. However the Court of Appeal are likely to receive a series of appeals based on today's decision."

Sandra Paul, who works for law firm Kingsley Napley, went on: "A lot of people will want to know if they are affected. I expect lawyers will get a lot of calls. How many of those calls result in a significant change is hard to say."

She said the ruling related to a specific facet of the law on joint enterprise.

And she said the public should not assume that every case they had read of involving joint enterprise would be affected or result in appeals.

"It relates to cases where people start out doing one thing and then someone does something else. It relates to people foreseeing what someone else will do. There are other kinds of joint enterprise cases which this will not affect. The Lawrence case, for example. From what I know of that, this ruling will not affect it. It may be that a lawyer will be asked for advice. But I don't think this ruling would affect it."

The Prison Reform Trust said the ruling had brought "useful clarity to a complex area of law".

Director Juliet Lyon added: "The court's ruling that the law 'took a wrong turning' will undoubtedly bring back to court cases where the original outcome was unjust. It is impossible to say how many cases this will affect."

A spokesman said he expected the trust to receive many calls for advice from prisoners.

Campaign group Jengba (Joint Enterprise Not Guilty by Association) hailed the ruling.

"This is a major turning point in British justice," said Jengba campaigner Deborah Madden.

"The joint enterprise rule has been used to get mass convictions without evidence. It has caused devastation for families."

She added: "We know of 650 people who we think will be affected by the ruling - and we don't know everyone."

Jogee's solicitor, Sandeep Kaushal, said he also thought that around 600 cases could be affected.

Mrs Fyfe vowed to fight on to ensure those found responsible for her husband's death remained in prison.

"We just know it will either go to a retrial or change to manslaughter," she said.

"It's not ideal, but I would prefer a retrial, because this was a murder - it's not manslaughter."

Mrs Fyfe said Mr Fyfe had represented both Jogee and Hirsi at police stations.

She added: "The law seems to be on the side of the criminal and the victims just get forgotten."

Mr Fyfe's youngest daughter, Jess, 20, said the family faced the possibility of seeing Jogee out on the street.

"He needs to accept the consequences and serve his time," she said.

"If it was me and I had got myself in that situation I'd serve my time. I couldn't live with myself, so it baffles me that other people try to get out of prison, it really does."

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