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UK supreme court ruling could fuel regional appeals
Published on February 20, 2016 Email To Friend    Print Version

Justices of the Supreme Court in London

GEORGE TOWN, Cayman Islands (CNS) -- Defence attorneys in the Cayman Islands believe that a very important ruling in the UK this week regarding the misinterpretation by the courts for the last 30 years over crimes involving joint enterprise will impact a number of serving prisoners and future cases in the region.

The law, which has allowed people to be convicted of murder even if they did not inflict the fatal blow, has been wrongly interpreted since 1984, the Supreme Court has ruled.

The law has been used in courts across England, Wales, Northern Ireland and most UK overseas common law territories and has been used to convict people of murder, especially in gang-related cases, 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.

But now, five Supreme Court judges have ruled that the courts were wrong to treat “foresight” as a sufficient test to find someone guilty of murder and, as the law has taken a wrong turn, it needs to be put right.

Local defence lawyers in Cayman told CNS that there are several convictions there that this ruling will apply to and cases are being reviewed with an eye on the appeal court. Attorneys also said it is likely to apply to current cases before the courts and future prosecutions.

One legal expert told CNS that the law had worked as a “blank cheque” for prosecutors in some cases, making it easy for them to get serious convictions against people involved in a criminal scheme, even when accomplices were not the primary perpetrator.

Peter Polack, one of Cayman’s most outspoken criminal attorneys, said that he believed the onus was now of the authorities here to examine local cases and ensure that any miscarriages of justice are addressed.

“In view of this development, the chief officer of the relevant portfolio, Jacqui Wilson, the solicitor general, will surely conduct a prompt review of any affected cases and advise the public of the outcome,” he added.

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 judgement, 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.

Read the Supreme Court summary of the case and the full judgment

Republished with permission of Cayman News Service
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Herbert Volney:

Well, I have to say it all over again, there they go again! This very concept of joint enterprise and constructive malice has been set and reset by these law lords in London over and over again. Once set our judges have faithfully followed the specimen directions issued to lower court judges.

I am now impelled to ask myself in view of some questionable rulings lately - see Ferguson and Edoo v AG of Trinidad and Tobago, whether the Board as now constituted with Lord Neurenberger in particular is not abusing its final appellate status to impose its "European" print upon the former colonies so as to keep our independent status in their contextual line.

I was appalled to decipher how this very Privy Council was so easily able to cut down on human and fundamental rights gains of the Diplock era in the Ferguson case thereby sacrificing bold judicial precedent at the altar of expediency in a sad reversal of principle for pragmatism.

This want to impose new and odd interpretations of the law from distant London in flexing final appellate power is a clear affront to our independence as emerging nations and signals the need for us to unceremoniously discard a body that itself can't seem to get it right an initio.


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