Outspoken Criminal Attorney, Anselm Clouden has called for the commissioning of a review into joint enterprise cases in light of a decision taken by the Privy Council last week to shift away from the parasitic accessory liability law laid down in the Chan Wing Siu case more than 30 years ago.
Joint enterprise or responsibility to a criminal offence means that each accused person shared the intention to commit a particular crime.
Issuing the call in an exclusive interview with THE NEW TODAY last week Friday, Attorney Clouden noted that the joint enterprise law which came into effect as a result of the Chan Wing Siu case of 1984, has been used to convict people of murder, even though they were not actually the killer on the basis that the co-defendants could have foreseen the violent acts by their criminal partners and were therefore equally culpable.
He said that “according to the law laid down in the Chan Wing Sui (case), the court held that if two people set out to commit an offence (Crime A), and during the course of that joint enterprise one of them (D1) commits another offence (Crime B), the second person (D2) is guilty as an accessory to (Crime B) if he had foreseen the possibility that (D1) might act as he did.”
“(Because) of D2’s foresight of that possibility, plus his continuation in the enterprise to commit the crime, the court held it sufficient in law to bring (Crime B) within the scope of the conduct for which he is criminally liable whether or not he intended it”, he said.
“This is what is called parasitic accessory liability. It deals with a secondary party,” Attorney Clouden added, noting that the joint enterprise law has been in place in England and the Common Law jurisdictions, including Jamaica since 1984.
The decision by the Supreme Court and their new direction on how the law should be interpreted came after the five judges considered the case of Ameen Jogee, who had been convicted of murder under the joint enterprise law for the stabbing death of Leicestershire police officer Paul Fyfe in 2011.
The court heard that Jogee had “egged on” his friend Mohammed Hirsi, who killed Fyfe.
Jogee argued he was not inside the house when the incident took place and could not have foreseen what his friend intended to do.
Delivering the judgment, Lord Neuberger said it was wrong to treat “foresight” as a sufficient test to convict someone of murder.
“The court is satisfied, after a much fuller review of the law than in the earlier cases, that the courts took a wrong turn in 1984. And it is the responsibility of this court to put the law right,” he said.
Attorney Clouden said this means that “the case of Chang Wing Siu has been overruled by the Privy Council (and) there is no longer the concept of parasitic accessory liability in the context of a joint enterprise.”
“This case has significantly changed the law with respect to joint enterprise…it has reversed the acceptable principles that were annunciated by the Privy Council (in the case of Chan Wing Siu and the Queen) and the latter case of Al vs Powell and English in the 1999 appeal cases,” Attorney Clouden said.
“It is an exceedingly positive move,” he added.
The seasoned attorney expressed the view, now that it has been determined that “the Chang Wing Siu law is no longer good law,” the local authorities should be compelled to review the cases of joint enterprises to determine that no injustice was done by adhering to the old principles.
“The Privy Council and the House of Lords (have) moved away from Chang Wing Siu…the (new) law is saying that it has been blatantly unfair to saddle a secondary party with parasitic accessory liability without having the intention to commit the offence, (and) certain persons who were convicted under the old principle should have their sentences revoked,” Attorney Clouden, declared.
“We have to petition to the Attorney General to either pass legislation that would give greater certainty and clarity to the (new) law or alternatively, the government would have review those cases that were based on joint enterprise to determine if any injustice was done and if so commute the sentence,” he added.
Clouden pointed out that there have been convictions in Grenada on the basis of joint enterprise in the context of the summing up given to the jury following the Council’s decision in the Chang Wing Siu matter.
“For example one of my clients Nigel Sookram, with whom I went up to the Privy Council…he is entitled to have his sentence commuted,” Attorney Clouden said, noting that he (Sookram) was convicted under the old law of joint enterprise where association, authorisation and foresight of possible consequences would give right to that culpability on the part of the secondary party.”
He said Sookram is currently serving an”18-year sentence because he was an accessory to the crime of murder.
Sookram and his co-defendant, Denzil ‘Pappy’ Charles were charged with the offences of robbery and for the December 20, 2005 murder of John Joseph, who was shot to death during the course of an attempted robbery at the Tivoli Gas Station in St. Andrew’s.
Charles pleaded guilty to both robbery and manslaughter and got a lesser sentence of 10 years.
Sookram went to trial during which Attorney Clouden contended, “he wasn’t the one who pulled the trigger.”
The matter was eventually brought before the Privy Council, which upheld the 18-year sentence imposed on Sookram by the trial judge.
Attorney Clouden is adamant that “it is incumbent on the authorities to review Sookram’s case and other cases of joint enterprises” in light of the new ruling.