[Ammi]

A key test imposed by judges in assessing guilt in so-called joint enterprise killings has been wrongly interpreted for the past 30 years, the supreme court has ruled.

The unanimous decision by the UK’s highest court is likely to trigger a rush of applications to the court of appeal by those convicted under a specific category of evidential rules about defendants having foresight of what would happen before murder was committed.

The five supreme court justices said that for decades courts had been in “error” in treating the fact that a secondary, co-accused had foresight that the principal attacker might carry out a killing as sufficient proof of guilt in assisting or encouraging them.

“The correct position is that … foresight of what the principal might do is evidence from which the jury may infer that he intended to assist or encourage to do so,” Lord Neuberger, the president of the supreme court said, “but it is for the jury to decide on the whole evidence of whether he had the necessary intent”.

The judgment on Thursday came in relation to two joint enterprise cases - one in Nottingham, the other in Jamaica - where men were convicted of murder. Both murder convictions have now been overturned.

The British case involved Ameen Hassan Jogee, who is serving a sentence of life imprisonment. Jogee was convicted of murder even though it was his friend, Mohammed Adnam Hirsi, who killed their victim, Paul Fyfe, with a knife taken from the kitchen. Jogee was outside the house when the killing took place.

Jogee will remain in prison following the supreme court decision and his lawyers will have to make submissions about whether there should be a full retrial or whether his murder conviction should be replaced with one of manslaughter.

In a highly critical report last year, the Commons justice select committee suggested that many people convicted of murder under joint enterprise rules should have been charged with manslaughter or lesser crimes, and that the threshold for establishing culpability should be raised.

The long-established principle of joint enterprise allows defendants to be found guilty of offences committed by another person if they have agreed to act together for a common purpose. Problems arise around what are said to be reasonably foreseeable consequences of any agreement.

Almost 500 people are thought to have been convicted of murder between 2005 and 2013 as secondary parties in joint-enterprise cases. Many were recorded as gang-related attacks.

The court of appeal is now expecting those who believe they have been wrongly convicted of murder under the old foresight rules under joint enterprise to apply for their cases to be reviewed. Recalibration of the evidential rules will not require parliament to re-examine any legislation; joint enterprise has developed through the common law.

The supreme court judgment traces the error in law to a 1984 judgment by the judicial committee of the privy council.

The new decision, the supreme court says, brings “the mental element required of a secondary party back into line with that which is required of the principal and to bring the law back to the principles which had been established before the law took a wrong turn”.

In the Nottingham case, Jogee and his friend Hirsi visited the house of Naomi Reid on the night of 9 June 2011 supposedly for the purpose of consuming drugs.

Reid asked them to leave before Paul Fyfe, with whom she was having a sexual relationship, returned. They left. Hirsi returned but was taken away by Jogee an hour later. Both returned together at Reid’s home at 2.23am. Hirsi went inside the house. Jogee stayed outside close to the front door, allegedly damaging Fyfe’s car.

There were furious exchanges between Fyfe and Hirsi. Fyfe went upstairs to put some clothes on, whereupon Hirsi went to the kitchen and took the knife. Jogee, still outside the house, threatened to hit Fyfe over the head with the brandy bottle in his hand.

Jogee was said to have been “egging” Hirsi on to harm Fyfe. Hirsi then stabbed Fyfe with the kitchen knife, killing him. Jogee and Hirsi were both subsequently found guilty of murder and sentenced to life imprisonment.

Jogee appealed partially on the basis that, in these circumstances, foresight of a mere possibility that Hirsi would use the kitchen knife with the intention of causing at least serious bodily harm to Fyfe was not enough to prove a conviction of murder as against him.


http://www.msn.com/en-gb/news/uknews...cid=spartandhp