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Trinity, complicity and the Supreme Court

Trinity Law Fellow Dr Matt Dyson provided academic firepower for the successful appeal against the doctrine of ‘joint enterprise’, or the law of complicity.

On 18 February, the Supreme Court and Judicial Committee of the Privy Council ruled that one part of the law of complicity had been misinterpreted for 32 years. The joint decision of came after appeals by Ameen Jogee and Shirley Ruddock, who were convicted of murder, in England and Jamaica respectively.

Dr Dyson’s contribution was to undertake research on the last 500 years of the law on complicity: what it was, when and why it changed, and what the common threads were.

Ultimately, the court allowed the appeal. The court held that the particular error to be corrected was from a decision of the Privy Council in 1984, called Chan Wing-Siu. That case had held that an accomplice could be liable because he foresaw the principal offender (the principal) might commit a crime. The Supreme Court has now made clear that foreseeing a crime might be committed is only ever evidence of what is required, that is, that the accomplice intended the principal to commit the crime.

The law of complicity can apply to all crimes but its use in recent decades to prosecute for murder, especially in cases involving gangs, has proved contentious, giving rise to many appeals. There was also an important difference between the liability of the principal and the accessory, according to Dr Dyson:

Until last week, an accomplice would be liable for doing much less than the principal perpetrator, such as being one of five people who offered a knife rather than being the one person who used it. So the standard of fault for the accomplice was a lot lower than for the principal. But why should it be easier to be convicted as an accomplice than as a principal?

Lawyers acting for Jogee, Defence Law Ltd, said the law had ‘incorrectly and unfairly developed’:

This over-criminalised secondary parties… The consequence was that people were convicted of serious offences, committed by others, and imprisoned for lengthy periods.

In 2014 Dr Dyson was one of the academics, campaigners, Ministers and prosecutors who provided evidence to the House of Commons Justice Select Committee, which recommended an urgent review of the use of the doctrine of joint enterprise in murder cases.

In its February 2016 ruling, the Supreme Court and Privy Council have corrected the errors of their predecessors. While media reports have suggested hundreds of prisoners could seek appeals as a result of the recent ruling, Dr Dyson cautions against accepting simplifications of the law of complicity.

For instance, it is often thought that ‘joint enterprise’ was how two of those involved in the murder of Stephen Lawrence were brought to justice. But, says Dr Dyson, the judge’s sentencing remarks suggest that intention, not foresight, was the grounds for their conviction.

Foresight as a test of culpability, a test which R v Jogee has removed, does not appear to have been relevant to their convictions. That will be the case with many, though not all prosecutions. A large proportion of prosecutions are brought on the basis that the defendants were all part of a common plan to commit crime, not on the basis of mere foresight of the possibility of a crime.

And that’s the point: where the defendant was only shown to have foreseen that possibility, murder is not an appropriate conviction. Manslaughter might be appropriate, depending on the facts; but it might also be that the defendant is not responsible or culpable for the death at all.

It does our criminal justice system no good to convict people of the most serious crime on the basis of the lowest form of culpability, mere foresight. We must prosecute all parties to criminal conduct but prosecute them for the right crime.

Dr Dyson’s contribution to the case underlines the useful and important role of independent and rigorous research in public debate and policy issues:

As soon as I heard the case had permission to appeal to the Supreme Court, I got in touch with the counsel involved and offered any help I could provide. I cared about the issue and thought it was important to contribute to try to make the law better. Given other academic commitments, we can’t always dive in to cases, but this was a special case. It’s also affected not just what we have to teach our criminal law students, but also how I teach it.

The experienced underlined the benefits of practitioners and academics working together, said Dr Dyson:

There was a great deal to learn from working closely with the appellants’ legal teams, led by Felicity Gerry QC and Julian Knowles QC, as well as from legal argumentation from the respondents and the members of the Court.

More generally, done properly, and perhaps with a little luck, academic work of many kinds can contribute to wider society, including in informing public debate.

Dr Dyson explains in more detail the R v Jogee case in a Law Faculty video.

His other projects include the relationship between criminal law and tort law, the regulation of transplant of sub-optimal organs and how private law regulates risk. For more information about studying law at Trinity:

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