The judgment of the Supreme Court in R v Jogee [2016] UKSC 8 is out. The Court held that for a secondary party to be guilty of an offence, he or she must intend to assist or encourage the principal. It will no longer be enough, as had been previously held, for the secondary party merely to foresee that the principal might commit the offence. The correct rule is that, whilst foresight might be evidence of an intention to assist or encourage in the commission of the offence (and indeed it may be important evidence), it is not decisive.

In other words, the law has been wrongly applied for 30 years.

So what of previous cases that proceeded under the wrong interpretation of the law? The Supreme Court addressed the issue at §100:

“100. The effect of putting the law right is not to render invalid all convictions which were arrived at over many years by faithfully applying the law as laid down in Chan Wing-Siu and in Powell and English. The error identified, of equating foresight with intent to assist rather than treating the first as evidence of the second, is important as a matter of legal principle, but it does not follow that it will have been important on the facts to the outcome of the trial or to the safety of the conviction. Moreover, where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That court has power to grant such leave, and may do so if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken. This principle has been consistently applied for many years…”

This approach, which puts the importance of finality in criminal cases ahead of the need for the criminal law to be fair, sounds a strong note of caution to those unjustly affected by the “old” law and their families. To succeed, an appellant must be able to show that a “substantial injustice” has occurred. That is a nebulous, and perhaps deliberately vague concept, which affords the Court of Appeal a very broad discretion. Nevertheless, some steer is given as to where the line may be drawn by the observation that in many cases the application of the “old” law will not have been important to the facts of the case (in other words, the offender would have been convicted regardless). On the other side of the coin, where it can be shown that the application of the “old” approach was important on the facts, such that a correct application of the law might have produced a different result, then the conviction could be quashed. The challenge for appeals lawyers is to meet that threshold.

Postscript: Since I posted this piece, my chambers colleague Mark George QC has written an excellent piece questioning whether the Supreme Court’s approach is correct. Mark notes that the cases cited by the Court all relate to the interpretation of the meaning of various Acts of Parliament (“change in the law cases”), as opposed to cases involving a misinterpretation of the common law. Mark further notes that the Supreme Court placed substantial reliance on the case of Fletcher [2007] 1 WLR 3262, in which the Court of Appeal distinguished change in the law cases from cases such as Bentley [2001] 1 Cr. App. R.

In Fletcher, the Court suggested that the conviction in the infamous Bentley case was quashed only because the summing up had been unfair. The decision did not depend on a legal view of the principles governing joint enterprise. As regards the outcome in Derek Bentley’s case, that is correct. The ratio of Bentley was that the summing up was unfair. The Court held that the direction on joint enterprise was, if anything, favourable to Mr Bentley. Nevertheless, in setting out the applicable principles, Lord Bingham said (§4):