The Society of Legal Scholars conference in Oxford September 2016 was a lively and stimulating event. Its theme was one to which I was keen to contribute. Even before the decision in R v Jogee  UKSC 8 in February 2016, ‘the role of legislation, common law and the judiciary: policy, ‘principles’ and reform’ have been particular interests of mine. However, this case gave me the opportunity to consider these aspects in more detail. My degrees in History and English and later Law, and my academic life in social justice, criminal law, criminology and jurisprudence have given me an abiding interest in the language of the law, and its political and social contextual relevance. My poster was intended to serve many purposes, – for the conference, to elicit discussion on the topic, make contacts with people similarly interested , and as a future learning aid for my criminal law students on what has been, and may continue to be, a difficult area of law.
I have long been concerned with the ethical questions regarding the concept of accessorial liability as per ‘joint enterprise’, particularly in cases where a death has occurred, and how change could be affected. Despite significant academic, Law Commission and public concern, the concept remained in practice for 30 years. The recent case of Jogee conceded that the previous interpretation of liability had been misconstrued.
My contribution focussed mainly upon how the Supreme Court decision was made accessible to wide and potentially divergent audiences: academic, practitioner and public. Moreover, I focussed upon whether the rhetoric utilised or revealed any particular jurisprudential theories. My conclusion was that the language was deceptively simple in tone, providing specific and persuasive understandings of the decision, of the law, and of the role of the judiciary, for a wide audience. For example, the phrase: ‘The courts took a wrong turn in 1984 … it is the responsibility of this court to put it right’ is utilising a rhetorical technique known as ‘parallelism.’ This is often used to simplify understanding, but especially to make concepts easier to process.
However, of greater interest was the metaphor of ‘paths’ and ‘wrong turns’- thus linking legal ‘norms’ and interpretation with evocative ‘everyday’ examples, commonly understood. This suggestion of an external and concrete existence of ‘the law’ – one that the judiciary are able to discern and apply, to provide the ‘right answer’ is also indicative of the ‘Right Answer Thesis’ of Ronald Dworkin’s early work. Similarly, it suggests the declaratory theory of law, where judges ‘find’ the law, or ‘discover’ it, but do not subjectively create it. It is possible, therefore, to use the language of this decision to consider ‘normativism’, or debate Dworkin’s theory, or indeed, many others: we could equally acknowledge that such rhetoric hides hierarchy, power and subjective judicial decision making.
The suggestion of paths and ‘putting right’ can be interpreted that the Supreme Court was merely clarifying existing legal principles or rules. However, it is also a rhetorical technique that emphasises legality, principle, but also separation from policy. Indeed, within this Supreme Court decision, there is little overt declaration of policy. However, policy influence can be detected in the acknowledgment that the previous interpretation of Powell and English, and Chan Wing-Siu, had been for a specific purpose, albeit one limited by misunderstanding: ‘Based on the need that co-adventurers in crime which result in fatality should not escape conviction, without considering whether the secondary parties would generally be guilty of manslaughter in any event.’ The language here reveals awareness of policy, and some sympathy for this: for Dworkin, legal reasoning is focussed upon principles, not policy considerations.
Regarding accessorial liability, the decision has left many issues unresolved by stating that foresight of another’s intent may be used as evidence of the secondary defendant’s intent, but is not automatically indicative of it, unlike previously. Similarities with Woollin (1999) AC82), and oblique intent are clear. The reassurance that existing convictions could not be appealed unless ‘substantial injustice can be demonstrated …’ is ambiguous, since ‘substantial injustice’ is not defined. Many might argue that a Murder conviction based upon a mistaken interpretationof the law would constitute ‘substantial injustice’.
A constructive manslaughter conviction may now be a likely alternative or indeed preferred route, as per Jogee, and for some potential appeals, and future convictions. This would support policy concerns, and can be discerned within the critique of Powell and English and Chan Wing-Siu, as noted above. Discussion at the SLS conference with a practitioner from Western Australia, suggested, anecdotally, that the objective test and alternative verdict may already have been a preferred option in some jurisdictions.
Dr Kim McGuire.