Jogee and Ruddock: procedure and precedent

The recent UK Supreme Court and Privy Council (JCPC) decision in Jogee and Ruddock [2016] UKSC 8; [2016] UKPC 7 has generated considerable comment on the substantive issues, most of it (at least cautiously) welcoming. The case concerned criminal liability for a ‘joint enterprise’ – a particular form of accessory liability that has long been viewed as a problematic feature of numerous criminal prosecutions, including in high profile cases such as the 1952 murder conviction of Derek Bentley (who was posthumously pardoned) and the more recent convictions of Gary Dobson and David Norris for the murder of Stephen Lawrence.  The Courts’ decision overturns what appeared to be settled law in England and Jamaica, leading to the prospect of an uncertain number of reviews of prior convictions, and to possible ramifications for other common law jurisdictions. There has, however, been little reference to some interesting features of the case from the more general perspective of ‘legal methods’, which is what I intend to address in this post.

Procedural innovation

Procedurally, this is clearly a landmark case in that it is the first time that the UK Supreme Court and the Judicial Committee of the Privy Council have sat together to hear joined appeals from a UK and a Commonwealth case. Joinder of appeals is, of course, structurally quite feasible, given that the Supreme Court Justices also constitute the backbone of the Privy Council bench, and the courts share a common infrastructure as well. Nonetheless, it is, so far as I can tell, unprecedented – at least in the ‘modern’ era since the jurisdiction of the two courts was settled by the Judicature Acts and the Appellate Jurisdiction Act 1876 (I would be happy to be put right on this if anyone knows differently).

Interestingly, the judgment itself makes no reference to the novelty of the procedure, nor highlights any authority for conjoining appeals across the two courts’ jurisdictions. As there is nothing express in the Rules of either court, or in their respective Practice Directions, I think we must assume that the power resides in the courts’ inherent jurisdiction to determine their own procedure (note r. 9 of both the Supreme Court Rules 2009, and the Judicial Committee (Appellate Jurisdiction) Rules 2009).

Implications for precedent in England and Wales

Over the years a number of cases have arisen where issues have been decided within the jurisdiction of the Privy Council that would, had they been decided by the House of Lords/Supreme Court, have created a binding (rather than persuasive) precedent in English common law. Divergence of this sort has occasionally caused problems for the Court of Appeal and lower courts, who have found themselves confronted by conflicting House of Lords or Court of Appeal and JCPC decisions. The close relationship between the Supreme Court and JCPC has sometimes been used to enable English courts to take a flexible approach to JCPC precedents, blurring the persuasive/binding distinction, as when following Attorney General for Jersey v Holley [2005] UKPC 23 (where an exceptional nine-judge Board of the JCPC was convened specifically to clarify the common law on provocation – see, eg, the discussion in Holland & Webb, Learning Legal Rules, 8th ed, Oxford UP, p.171). The ability to join cases in the manner of Jogee and Ruddock obviously provides a further mechanism for preventing the niceties of stare decisis from getting in the way of a good (common) solution. However, it is, of course, a very limited innovation. It is fairly unlikely that the factual circumstances will often arise to make joined appeals possible. Consequently it probably does little to reduce the need for continuing judicial flexibility a la Holley

Impact in Australia

The decision may shortly have important ramifications in Australia. The history of the doctrine of extended common purpose reflects an interesting interplay of common law principles from a range of jurisdictions. The rulings by the Privy Council in Chan Wing-Siu v The Queen [1985] AC 168  and the House of Lords in R v Powell, R v English [1999] 1 AC 1, both overturned by Jogee and Ruddock, built substantially on decisions of Australia’s High Court in the 1980s. Moreover, in an interesting flow of authorities, the High Court in turn relied on Chan in McAuliffe v R [1995] HCA 37, to reach the same conclusion on extended common purpose as the House of Lords in 1999. Crucially, the High Court is due to hear argument next month in an appeal on ‘joint enterprise’ from the South Australian Supreme Court’s decision in R v Presley, Miller & Smith [2015] SASCFC 53.  It is notable that the doctrine was last considered by the High Court as recently as 2006, when – following argument before the full Court – it refused leave to appeal in Clayton v R [2006] HCA 58 (Kirby J dissenting) . That Presley, Miller and Smith were not similarly rejected may be, in a sense, fortuitous. The case raises issues of intoxication not considered in McAuliffe or Clayton, and it is clear from the transcripts that the High Court was only willing to grant special leave on this ground, and would not re-open the debate about extended common purpose more generally – see eg Presley v Director of Public Prosecutions for the State of South Australia [2016] HCATrans 17 (12 February 2016).

The timing of Jogee and Ruddock thus proves interesting, to say the least. The Supreme Court/Privy Council were clear in their unanimous view that, on a proper reading, the earlier Australian jurisprudence (in Johns [1980] HCA 3 and Miller (1980) 55 ALJR 23) did not justify the wrong turn taken by the JCPC in Chan (see para 67). In this light, will the High Court of Australia stick to its McAuliffe guns? The Court has been quite robust in carving-out a distinctive Australian ‘common law’, so it may not be fazed by the prospect of maintaing its own settled jurisprudence, despite continuing controversy over the operation of joint enterprise laws. At the same time, it by no means ignores the decisions of the UK Supreme Court/Privy Council. For the present we must wait and see.

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Giving good judgment

I’ve recently finished revising my bits of writing for the ninth edition of Learning Legal Rules (co-authored with my recently emeritus collaborator and erstwhile colleague, James Holland), which will be published by Oxford UP next year. After eight editions it’s tempting just to update without tweaking and changing too much, but we like to try and keep it fresh as well, so are always looking for new (or even less new) material that will serve that purpose. This time around one of the pieces I came across was a piece in the Guardian by the novelist Ian McEwan (whose work I’ve always admired). Though we didn’t use it in the end, I want to share it here. It is on the rather well-worn trope of legal judgment as literature, but I like the way in which McEwan brings his novelist’s eye to the description:

It was the prose that struck me first. Clean, precise, delicious. Serious, of course, compassionate at points, but lurking within its intelligence was something like humour, or wit, derived perhaps from its godly distance, which in turn reminded me of a novelist’s omniscience. I continued to note the parallels between our professions, for these judgments were like short stories, or novellas; the background to some dispute or dilemma crisply summarised, characters drawn with quick strokes, the story distributed across several points of view and, towards its end, some sympathy extended towards those whom, ultimately, the narrative would not favour….

Here, in my lap, were realistically conceived characters moving through plausible, riveting situations, raising complex ethical questions. If these judgments had been fiction, they would have belonged in the tradition of moral exploration that includes Jane Austen, Leo Tolstoy, George Eliot, Henry James, Joseph Conrad.

I love this description, and while not all judicial authors can be praised for prose that is ‘clean, precise, delicious’ the best undoubtedly can. It’s also probably not a bad reminder either to  us or our students that it is the writing that leaves its impression first, and probably longest. Prose doesn’t have to be turgid and dull just because its ‘legal’ or (even worse!) ‘academic’. For me it was also another prompt to consider what our students lose when we do them the (dis)service of packaging their law for them in ready-to-digest, bite-size, nuggets in lectures and textbooks(!). Those judgments that involve hard moral problems really do allow us to see into the crucible of ethical decision-making in a way that commentary often does not.

It is perhaps no surprise that the primary target of McEwan’s admiration was Sir Alan Ward, the Court of Appeal (England and Wales) judge who retired last year. Sir Alan was always one of my favourite judges for both the clarity of his prose and his ability to wear both his judicial authority and his learning very lightly. I’m pleased to say he gets two honourable mentions in the new edition. The first refers to his most famous and probably most difficult judgment in the conjoined twins case (Re A (Conjoined Twins) [2001] Fam 147). The other? Well fellow Ward devotees may have guessed… I couldn’t let his one-liner about ‘warring bankers’ get away.

Implementing the LETR

I was sorry to miss the latest Westminster Legal Policy Forum (WLPF) event in London on 5 November, but unfortunately I was otherwise occupied in the southern hemisphere. The event was timely, given that the SRA has recently published its consultation on its draft competences and the BSB have also just given us some further detail of their training strategy (though still not a lot – HT here to Steven Vaughan’s recent guest blog on Richard Moorhead’s Lawyer Watch).

The WLPF summarised the event as follows:

Sessions brought together key stakeholders working across the current legal education and training framework – including colleges, universities, careers advisory services, vocational training providers and regulators – alongside law firms, chambers and wider legal employers. Delegates had particular opportunity to consider the prospects for developing new qualification pathways and access routes to legal professions, as well as possible changes to competency frameworks and Continuing Professional Development. Sessions also focused on current proposals to streamline regulatory involvement in education and training processes, and the challenges ahead for a revised framework in supporting both innovation and standards.

The work of the LETR research team is, of course, long-finished, but it was good to see that my colleague on the team Professor Avrom Sherr was invited to open the event and did so, in his own words, by going provocatively “off message”, not least on the challenge to the representative bodies to maintain their relevance after the Legal Services Act; on the tendency of the LETR to be about “regulation, regulation, regulation” rather than “education, education, education”, and on the potential boringness of the SRA’s competence statement. This all bodes rather well for our joint Upjohn Lecture in January 2015!

I have storified all the tweets I could track from the WLPF event here (in reverse chronology):

Hemmings, super injunctions and super lies?

Having resisted commenting on the whole super injunction ferrago so far, the latest twist is hard to ignore. It will be recalled that MP John Hemmings used his position in Parliament to publicise information about cases in which the media, the parties and anyone else had been gagged using so-called ‘super injunctons’ – that is, interim orders which. Not all of these cases were about the very rich seeking to keep their bedroom antics off of the front page. One involved serious claims of sexual abuse made by a 7 year old child and her mother against the child’s father. Moreover, if the mother’s claims were true the case involved not only sexual abuse but rank incompetence and mendacity by social services and the legal profession. No wonder Mr Hemmings considered it in the public interest to highlight the attempt by Doncaster social services to use injunctive relief to keep their own failings under wraps. Except that Vicky Haigh’s quite extraordinary claims about her daughter’s abuse have now been judged by the High Court, for the third time, to be a complete fabrication – Re X (A Child) (2011). The full judgment has yet to be released, but in a press release from the Judicial and Tribunals media office, the President of the Family Division has stated that:

“The first judge found that allegations of sexual abuse made against the father of a young child were not just untrue but manufactured by the child’s mother, who then caused her daughter to repeat them. Because the mother was wholly incapable of fostering a relationship between her daughter and the child’s father, refused to accept the judge’s findings and continued to assert that the father was a paedophile, a second judge found that her mother had caused the child significant harm. The child’s mother is wholly unable to accept the court’s verdict and, with the misguided assistance of Elizabeth Watson [a private investigator and campaigner working with Vicky Haigh, who was gaoled by the court for contempt] has unlawfully and in breach of court orders put into the public domain via e-mail and the internet a series of unwarranted and scandalous allegations about the father and others. She has repeated the untruth that the father is a paedophile and – without a scintilla of evidence – has attacked the good faith of all the professionals who had had any contact with the case”.

Exceptionally the President decided that it was also in the interests of justice to disclose the names of the parents, though the name of the child was not disclosed:

“I have come to the conclusion that … I should … give a public judgment in which I explain, having read all the papers in the case, that I have reached the same conclusion as the two previous judges. These proceedings have had a serious effect on the life of the father and have threatened the stability of the child. Her mother’s actions are wholly contrary to her interests. The father is entitled to tell the world, and the world is entitled to know, that he is not a paedophile, that he has not sexually abused his daughter and that the allegations made against him are false.”

The Haigh case was widely taken up across the print and online media. A large number of websites, including victims united supported the mother’s cause, with (with a few honourable exceptions) all the fervour of a Mississippi lynch mob. A number of those disclosed the name of the mother. Others deliberately disclosed the father’s name. The impact of this whole sorry episode on father and daughter is hard to imagine, and the whole process will have done little for Vicky Haigh’s credibility, let alone her long term relationship with her daughter.

It is important that injunctions are no wider than the merits of the case demand and widespread use of so-called super injunctions would be deplorable (though as a number of commentators have observed, their use has been both less extensive than often portrayed – as the Neuberger Committee noted in its May 2011 report, partly because of the media confusion between genuine super injunctions and more limited anonymised injunctions – and has declined as clearer guidelines have been developed as regards their use and duration. But it is important to remember that the whole point of an injunction may be, as in this case, to protect the interests of the vulnerable, and to ensure that no one is subjected to trial by media rather than by due process of law – values that one would hope our legislators might respect. (And indeed Parliament’s own sub judice rules exist to enable Parliament to limit the scope of debate to avoid the appearance of political interference with the administration of justice). The case is a sobering reminder of our capacity to lose objectivity in the face of highly emotive claims of child abuse, and, one hopes, an equally sobering reminder to Mr Hemmings that with power comes responsibility.

Beyond our Ken?

Another post, another Ken. The furore over Ken Clarke’s rape comments is still spreading across the blogosphere. By any standards it was not a good performance – see the full text of the interview at http://www.bbc.co.uk/news/uk-politics-13444770.

One of the aspects less commented on has been his confusion between rape and what used to be called unlawful sexual intercourse – now the offence of sexual activity with a child. As any law undergrad should know these are separate offences. The tariffs overlap, for sure, and data suggest convictions for the latter tend to attract a lesser sentence, nevertheless, to conflate them to explain the average sentence for rape looks like a poor smokescreen or ignorance. Not great either way.

The question of seriousness is, as our Ken discovered, a minefield. Yes, in one sense we know what he was trying to say – technically, there may be degrees of “seriousness” in terms of the commission of the offence: the degree of violence used, etc, does make a difference to the sentence imposed. But that in itself is controversial and difficult, and it doesn’t make any rape per se any the less a serious sexual assualt. I think Clarke understands that, but it did not come across. His broad reference to date rape as another factor explaining lower sentences does little to dispell the bad impression being created. Result: hush puppy squarely in mouth on a very sensitive criminal justice issue.

First sitting of the UK Supreme Court

Two posts in one day, must be a record! But appropriate to mark the first day that the new Supreme Court has actually sat as the final court of appeal in the UK. I recently came across the following YouTube video, with Lord Mance, one of the ten former Law Lords now sitting as a Justice of the Supreme Court. Its not a bad discussion of some of the issues, and it also captures nicely, I thought, some the obviously quite mixed emotions for those involved in the change. Could be a neat resource for GCSE/A level or even first year LLB?