On 9 June 2011, Jogee and his co-defendant, Hirsi, spent the evening taking drugs and drinking alcohol causing their behaviour to become increasingly aggressive. Twice during the night the pair visited the house of Naomi Reid who was in a relationship with Paul Fyfe. After the second visit Reid sent Jogee a text asking him not to bring Hirsi back to her house in Rowlatts Hill but the men returned for a third time only minutes later. By this time Fyfe had returned to the house and an angry exchange ensued between him and the two defendants. At 2:30am on 10 June 2011, Jogee was outside shouting encouragement to Hirsi who stabbed and killed Fyfe.
Judgment
Crown Court
In a trial at Nottingham Crown Court the judge, Dobbs J, directed the jury as follows: "the appellant guilty of murder if he participated in the attack on the deceased, by encouraging Hirsi, and realised when doing so that Hirsi might use the kitchen knife to stab the deceased with intent to cause him really serious harm". This direction accorded with the standard interpretation of the law regarding joint enterprise in the light of Chan Wing-Siu v The Queen AC 168. On this basis the appellant was found guilty of murder and was sentenced to 20 years in prison.
The Court of Appeal approved the reasoning of the trial judge and the law as stated in Chan Wing-Siu. Laws LJ stated that "The mental element, the mens rea, of the secondary party's crime is an appreciation that the primary actor might inflict grievous bodily harm and a willingness to lend his support notwithstanding." Jogee's sentence was, however, reduced from 20 years to 18 years.
The Supreme Court unanimously held that the law had taken a wrong turning since the decision in Chan Wing-Siu. In a joint lead judgment by Lords Hughes and Toulson, they concluded that a conviction under the principle of joint enterprise should require that the secondary party intended the primary party to commit the crime, rather than merely foresaw the possibility that they might do so. The ratio mirrors what Professor Baker argued the law ought to be in the 2015 edition of Dennis J. Baker, Glanville Williams Textbook of Criminal Law under the heading “The Mental Element in Common Purpose Complicity: Inferring Fault” at pp. 626-628. Baker argued the ancient law required direct intention, while counsel in R v Jogee limited their case to a knowledge test which would have still allowed recklessness in as the fault element. Under this ruling, there are two questions that must be asked in order to ascertain the guilt of a defendant on the basis of joint enterprise:
Did the defendant assist or encourage the commission of the crime?
In this assistance or encouragement, did the defendant act with the requisite mental element of that offence?
To elaborate on this point their Lordships gave an example: a defendant encourages the principal to take another person's bicycle and then return it after use but the principal in fact keeps the bicycle. In this scenario the principal will be guilty of theft but the defendant will only be guilty of the lesser offence of unauthorised taking because he has not encouraged the principal to act with the intent to permanently deprive.
Significance
The judgment has been described as "a call for prosecutors, judges and juries to return to the close consideration of the evidence before them without the crutch of a blunt principle". In a similar vein the judges in the case noted that there should not be an over-reliance on the weapon that is being carried by the principal. The weapon involved is a relevant piece of evidence but should be viewed as part of the wider context of the case. Lord Neuberger explained that the judgement was unlikely to lead to large numbers of appeals against old convictions:
Reaction
Charlotte Henry's brother was convicted under the Chan Wing-Siu interpretation of joint enterprise. She reacted to the judgment by saying "When the judgment was delivered I heard everyone catch their breath. My mother fell into uncontrollable sobs of relief. Finally we are hopeful that my brother will come home and we will be a family again." The wife of the deceased in the case said that she was "shocked and devastated" by the decision.
Subsequent events
On 8 April 2016, the Supreme Court ordered that Jogee was to be retried on the charge of murder, "with the included alternative of manslaughter". Jogee was cleared of murder at his retrial at the Nottingham Crown Court, but was convicted of manslaughter. As a result, on 12 September 2016, his previous term of life imprisonment with a minimum term of 20 years was replaced by a fixed-term sentence of 12 years, to include time already served as a result of his original conviction for murder. Jogee was released from prison in June 2017. He was later convicted of conspiracy to supply Class A drugs in November 2019 and sentenced to two years and four months in prison.
