It's my pleasure to welcome Enrique Carvalho here today to give the also seminar. Enrique is assistant professor at the School of Law at Warwick University, where he and his work explores the link between criminal law, punishment, subjectivity and society. He's particularly interested in how criminal law and criminal justice reflect and conditions, socio political identity and organisation.
Last year he published his first monograph called The Preventive Turn in Criminal Law, which some of you in the room, I'm sure have read, and if you haven't, you should. And today he will be presenting on a particular legal case, as I understand, about joint enterprise. So. Thank you very much. Thank you very much for having me here. Thank you very much for coming. I guess I should start with a bit of a disclaimer that this is still very much a work in progress.
It's something I've been perhaps thinking about for some time, but now, only recently, I tried to make a paper out of it. So, uh, probably there are some rough edges around along the way, but this means that I very much appreciate your comments and I'll just add because I'm generally interested in them, but because they'll probably be very helpful in finalising this paper. Has it gone to sleep? So perhaps I maybe can you fix it?
Because otherwise, before I try with my incompetent technological skills, you have to do this normally and then move it down and then it wakes up. I don't know why it's so weird also. Thank you. Right. So I guess the this paper really began two years ago, more almost precisely two years ago, when I was preparing for my lecture on joint enterprise, which was going to happen about a week or a week and a half from that day.
And suddenly the news came up. There is this case called Joji, and this case basically has abolished the the doctrine of the law on joint enterprise and has a the Supreme Court has declared that the law had taken a wrong turn in establishing the doctrine and therefore it should no longer hold.
So I was very annoyed, not just because I had to completely rewrite my lecture in one week, but also because I really enjoyed criticising joint enterprise and and I was like, so this but I guess the decision first time I heard about it was the decision sounded really radical and many people came very quickly to praise it, to say it was a milestone in perhaps some sort of judicial activism, that it was a long time coming, even chamber joint enterprise, not guilty by association.
This campaigning organisation that tries to campaign against what they consider miscarriages of justice around this law was very positive about the judgement. And and so my first impression of all it seems here that something really special has happened in that the law House and the Supreme Court has really come forth and done something significant with the law in this area. And this to some extent annoyed me a lot, and I thought it was great if that had happened.
But my feeling about the area, the area of joint enterprise is that joint enterprise was a very interesting manifestation of what I considered in my work to be a fundamental problem with criminal law. And therefore, I thought was maybe, maybe I was wrong. Maybe these problems were not so ingrained and difficult to deal with because I thought maybe the laws can change and then things can radically change with them.
However, we thought fast forward two years and actually today I looked on Twitter and Gemba. The Twitter chamber just retweeted a tweet which talks about the decision that happened either today or very recently. And the tweet basically said Polestar and Joji. Nothing changed, right? Nothing changed. How can the CPS sleep at night? So I. And this case was about a group of five people that were prosecuted in the, uh. I forgot the name caught on something.
I just read the tweets, like, about an hour ago. So anyway, that there was this conviction that this prosecution, five people were prosecuted, three of them were convicted for murder, one of them for manslaughter. One of them has been acquitted. And in the news, we're very clear that the conviction happened based on joint enterprise, which was supposed to no longer exist.
All right. So this to me shows that there is a very interesting problem around this area of law and especially around this decision of Georgia. How come the law has changed so much and how come it hasn't changed at all? So there is an interesting paradox surrounding this case. And I, I want to discuss a little bit this far. That's the in light of my previous and current work around criminal law and punishment.
And so this paper is, to some extent, a case study of these more general theories that I try to discuss in my work is is in general very theoretical. I mean, I'm trying this is an attempt by me to try and grant some of these theoretical ideas in more specific case studies. But also this is paper is also some kind of a scoping paper for what I hope will become or is already becoming my next project. So I'll talk a little bit about this.
I'll start by talking a little bit about this more theoretical background, especially around these two concepts, the concept of ambivalence and the concept of hostility. And then I'll talk a bit. I'll make the discussion more specific, talking about joint enterprise, both before and after. So in my previous work, especially the work of developing my Ph.D., that eventually became my monograph. I, I do an examination of the especially theoretical and conceptual grounds of the criminal law.
And I suggest that at the core of the criminal law and the core of process of criminalisation, their eyes only thc convenience. And so this ambivalence is first fundamental to criminal law in itself, in that it, in a nutshell, can be seen as torn between two paradoxical dimensions.
On the one hand, and especially formally, the criminal law aims to promote individual autonomy, equality and justice through notions such as individual responsibility, autonomy, etc. But on the other hand, and especially more substantially, it preserves it's a very important instrument for preserving conditions of structural inequality and structural violence in society.
So it does these two things at the same time. And so the criminal law is inherently ambivalent or inherently has to promote aspects of that lead, or that should lead towards notions of human emancipation and preserves conditions that hinder and actually depends upon these very aspirations being or remaining hindered. I also talked about how the criminal law manages this, this ambivalence through what I called after Ackerman, the reassurance function of the criminal law.
So the criminal law tries to reassure citizens, especially the law abiding citizens of society, that the insecurities that exist in society, especially in securities with regards to people's capacity to obey the law, the law, the capacity to protect their freedom, etc., etc., and that these securities should and are not the product of inherent problems in the way the law conceptualise this society, but rather they are problems of deviance.
So in other words, what the law tries to do is that it says that responsibility, individual responsibility, holds despite its problems. And mainly because the limit what can be seen as limitations in the ideas around individual responsibility, rule of law, etc., actually the consequence of individuals or groups that don't respect the law.
All right. So it shifts the burden or the cause of insecurity from what I consider more structural aspects of society towards individuals that the criminal law identifies as dangerous. So in doing so, it reassures an individual's society that society is in fact a civil order. It is civilised. Those values hold.
The aspirations of the law are civil can be achieved, and therefore they should be reassured that if they act in accordance with the law, they are acting in a way that can be seen as right and that can be conditioned to the good society, to the promotion of their own interests. All right. And this reassures works, as I had just suggested, through processes of identification and estrangement. All right.
So the law gives cues that suggests to individuals that if they're law abiding, they identify with the interests of society, with notions of welfare, with the values of the criminal law, etc., and those who don't, those who break the law are estranged from these very values. So effectively, the criminal law suggests that there is a distinction between us and between dangerous others.
So obviously the criminal law does this at the same time as it formally suggests that the criminal law treats everyone equally and that people who come before the criminal law are respected, have their agency respected, have their autonomy respected. The criminal law has procedural safeguards that would theoretically prevent exactly this distinction between us and them. So the result of this is that the criminal law is inherently ambivalent, especially the subject of the criminal law.
The person who is subjected to the criminal law is presented or can be seen as inherently ambivalent, torn between responsibility and dangerousness. So in my book, I try to look at some aspects of criminalisation, especially in relation to preventive criminal laws, to show how this ambivalence is behind some of the problems around preventive criminal offences, in the sense that A and one of the main problems that identify in the book is that there's this ambivalence.
It follows a specific, dynamic, specific dynamics. So on the one hand, the responsibility side of criminal subjectivity, of the subjectivity of the subject of criminal law is there to provide and to promote the image of the responsible legal subject.
So ideas of responsibility in the law, they especially ideas of responsible subjectivity, notions, for instance, embedded in in notions of capacity in the criminal law, demands for for the predominance of offence, rare, the presumption of innocence, etc. It talks about it provides and promotes this image that individuals that are subjected to the law are responsible and they are treated as so. They are respected as so. Right.
And this idea of responsibility grounds the possibility for individual justice and the aspiration of individual justice in in the law. At the same time, the law is also permeated by notions of dangerousness. And this dangerousness occurs precisely to differentiate between legal and criminal subjectivity, subjectivity of those who break the law. Right. And the criminal subjectivity is presented as distant from or precisely falling short of legal subjectivity.
And you see that in many aspects of what criminal law scholars called instances of character responsibility. So those who are deemed, those who can be criminalised, who can be liable for crimes, are precisely those who have failed to act as responsible legal subjects. And. And these two sides, they they occur under criminal law and obviously they occurred dynamically. So you can see that there are aspects of the criminal law that prioritise one or another of these two sides or one of them.
But my argument in the nutshell is that these two sides are always there. Right. And since the side of dangerousness is so important to the reassurance function of the criminal law, it tends to be emphasised whenever that reassurance function is deemed most necessary. All right.
So the more people are insecure and anxious about specific problems or specific aspects of society problem with regards to specific crimes or events, etc. the more the criminal law needs to discharge its reassurance function. So the more the law appears in its exclusionary aspect rather than in its expressive dimension. So the need for prevention and security was one of the things that I discussed in my book emphasises dangerousness over responsibility.
So this this balance seems to prioritise dangerousness over responsibility. So that's more or less the gist of and I'm being really perhaps simplistic, but I, I guess I hope hopefully I manage to give an idea of, of what I was trying to talk about in relation to that. Then in my sense, it when I was finishing the book, I already started working on another project, a project more directed at analysing punishment or more specifically issues of punitive ness, the urge to punish.
Why do people why do people desire to punish? Why the people adopt punitive attitudes, etc.? And in my collaborative work, which I do with my colleague, Associate Chamberland, we started to develop this idea of hostility. And especially from my perspective, the way I go about it is that the reassurance function of the criminal law, this symbolic function that the criminal law has in reassuring the prevalence of civil order, etc., needs enemies.
It needs individuals and groups to be identified as dangerous criminals who should and who must be punished, spite of the reassurance function of the criminal law, that we believe that there are individuals out there who cannot or who refuse to behave as responsible subjects and who therefore pose a danger to not only to society in the future,
but often social order more broadly. And in my collaborative work, we explore the idea that this this aspect of the reassurance function, this hostility speaks very intimately to an emotional urge that we have in contemporary society, which is an urge to feel a sense of belonging when especially when we feel that their sense of belonging is that this idea of of solidarity is lacking in society,
especially in our social experience. And we develop in a few papers this notion that punishment, through its symbolic role, it provides individuals with a notion of solidarity, a notion that individuals belong to something, to society. They are part of the community that is brought together through punishment. However, we also theorise that this notion of solidarity brought forth by punishment is very problematic. It's problematic because, first of all, it's hostile.
It brings people together only insofar as they are together against, you know, antagonism to others, to somebody else. So the sense of solidarity is from its outset, exclusionary, right. And we develop in this favours as well, this sense that this sense of solidarity is ultimately illusory. All right. So basically, contrary to what Durkheim anticipated, we do not feel punitive because we have strong bonds of solidarity.
There are violated by crime. Rather, nowadays it seems to be the case that we feel. More clarity when we don't have lots of sort of social solidarity, when we feel alienated, when we feel disgruntled, anxious, insecure, and the law, and therefore we pursue punishment as a way to tell ourselves, to pretend or to perhaps to emotionally experience some sense of a solidarity in society. But the problem is that because it's this sense of solidarity, it's not really there.
The moment we stop punishing, we are thrown back into the very sense of alienation that we had before. And therefore we feel that we need to punish more. And so on and so forth. Self-perpetuating. Well, so. So this ties in very nicely with this idea of the reassurance function of the criminal law, and especially this notion of dangerousness.
So this insecurity that perhaps is to some extent in endemic to to societies that perpetuate structural inequality and violence, is then becomes a permanent stimulus for us to indulge in punitive measures to some extent, and which is exacerbated depending on when situations become a especially precarious.
Right. So this insecurity that is generated is then work through and externalised through the image of these uncivilised barbarians at the borders of civil society, of these dangerous individuals that are within society, and yet at the same time, outside of it, because they don't behave in the civilised manner in which they were supposed to behave, it seems the criminal law to some extent needs these images of a dangerousness in order to discharge its reassurance,
function and rituals of criminalisation. And in many ways, and especially in specific cases such as our support of suggest joint enterprise evil. What I'm calling are the construction of dangerous belonging. These ideas of dangerousness are constructed, and they are preserved and perpetuated as part of these symbolic apparatus and of this symbolic process. Okay. So there are those this ambivalence around the criminal law, especially around that subject.
And this ambivalence tends towards dangerousness, especially when there is an emphasis on ideas of insecurity that in turn, lead us to feel that we need to be secure. We need the criminal law to make us feel safe and to make us feel reassured. Right. And in turn, this function ties in to what can be seen as an emotional a how do you say link?
An emotion I want dependence is too strong, but an emotional tendency that we have that we, we people in contemporary societies might have towards seeking a feeling of a sense of solidarity through hostility. So moving on to joint enterprise then, huh? So first thing to I guess to talk about is that joint enterprise has been widely recognised as a broad, imprecise term. So there are many different meanings that are given to this idea of joint enterprise.
And mostly it's used perhaps in the broader meaning of joint enterprise is up to people who are who engage together in criminal activity, either as joint principles or its principles and accessories. The idea is that there is a common purpose. I guess what? That's what the notion of joint enterprise suggests.
But the criminal law, a criminal law doctrine, joint enterprise also acquired a more specific meaning which relates to this now old doctrine or parasitic accessory of liability or power for friends to make it a bit cuter. So what is follow about? So basically this idea of parasitic accessory liability covers instances in which or at least was supposed to cover instances in which people are together,
people engaged together in criminal activity. Let's say from whatever a burglary is or a big fight, something like that. And in the middle of that criminal activity, one of them, one of these individuals goes on to commit a more serious crime. So and very the most common example is, yes, there is a fight between two groups. Let's say in the middle of the fight, one of the people kill one of the people from the other group. All right.
So the question that arises is, can the other people can the remainder of the group also be held liable for that killing, especially for that murder? Right. And the idea of the old doctrine of parasitic accessory liability is that, yes, the they could be held liable for that more serious crime of the different crime that arose from a joint enterprise. As long as they could be said to have realised that in the course of the joint enterprise, the primary party might commit a more serious crime.
For instance, might kill with intent to do so, or with the intent to cause grievous bodily harm. That's part of the. So I don't know if everybody's familiar here with this aspect of criminal law, but in the mens rea, the, the the elements of murder include unlawful killing with either the intent to kill or with the intent to cause grievous bodily harm or serious harm. So if the defendant has either one of these two mental states, they can be held liable for murder.
And so if this murder happens in the middle of a joint enterprise, then everybody else was involved in. The joint enterprise, according to the doctrine, say that they can also be held liable for murder for the same crime. As long as it can be said that they have realised that the crime was likely to happen. All right. And this is a very complex aspect of legislation.
There are many different elements to it, this notions of conditional intent that become very complicated but very important in this area. Because, for instance, if A knew that he was carrying a knife and that he might use this knife to commit to seriously harm somebody in the middle of the joint enterprise, even if this intent, so to speak, was only conditional when they might use a knife. If necessary, it is sufficient to grant a liability if that murder then goes on to occur.
So this is a very broad aspect of liability. The possibility of liability coming from this doctrine is very broad, has been severely criticised not only among all the things, because by saying that someone can be held liable by merely foreseeing that murder might occur, means that someone can be held liable for murder as an accessory with a mental element that's much lower than or much less specific than the mental element required for the principle.
So it's much harder to commit murder as a principle, in other words, than to commit murder as an accessory due to this group. Right. So if we look at some of the previous cases, the rationale for this doctrine has been very clear. Right. So even when it's rationalised in terms of principle and we can see that it is strongly grounded on the idea of association. All right. So by participating in the joint enterprise, the defendant has associated themselves with here foreseen murder.
Right. Obviously, the I imagine that the idea of a foreseen murder and that someone associating themselves with the foreseen murder is may sound a bit bizarre and may sound a bit non-specific, but some other decisions, such as this decision in Poland, Daniels has made it very clear that, well, it's okay because these rules are not necessarily based solely on logic.
This is not really about logic. This is about an important law that is necessary to deal with an important problem, to give effective protection to the public against criminals operating in guns. All right. So the idea behind this doctrine that behind this often there was always this very strong notion that there is a there's an important policy element here. Right. Is this law is there to keep us safe, safe from these dangerous guns?
However, besides former problems, the law of joint enterprise had many substantive issues as well. So several reports were recently made around joint enterprise and showed just how problematic this area of the law has been. So this 2014 report by the Bureau of Investigative Journalism, in which I participated with that minor role, it was found that around 44 of all homicide prosecutions between 2015 and 2013 were for homicides where two or more defendants were involved.
And one fifth of all homicide prosecutions in this period involved four or more defendants. So there is perhaps strong indication that many, at least if not all of these instances, involved some notion of joint enterprise in the prosecution. But obviously, there's another substantive problem in that although joint enterprise can apply to any crime, it has been substantively significantly used in case of homicide. And obviously murder carries a special problem in that.
Besides all that, the English law saying that principals and accessories are charged with the same crime. You're not charged with a different crime of assisting or encouraging. You're charged with the same crime as an accessory to murder. Makes things even more complicated, because if someone is convicted of murder, there is a mandatory sentence of life imprisonment. So the principal and accessory cannot be really differentiated in the sentences stage either.
They can be in relation to the minimum term of imprisonment, but that's in many cases, arguably that's a minor and a possibility for mitigation, especially when in terms of murder being an accessory that the role, the one place in the murder in the home is. Sorry is not presenting the guidelines as a possible aspect of mitigation. Killing in a group, though, is an aggravating factor.
So those little hope in a substantial way that the fact that someone played a minor role in a murder might actually lead to a much lower sentence. And in this report was estimated that at the time, at least 500 people were currently serving life sentences for convictions under the joint enterprise.
The problems become even worse when, for instance, if we look at the dangers associations report, it shown that there is a disproportionate criminalisation of young black, Asian and minority ethnic men, especially men or women also, but predominantly men. And that this criminalisation there is disproportionate criminalisation of especially black young men is made through use of the symbolism of the idea of gang culture in prosecutions that is used to produce evidence of association and force.
So for instance, in this case that I just mentioned, a thought on this. Yes. Certainly is the case where these five young men were prosecuted and four of them were convicted in Torkham Heath. In order to to conduct this prosecution. The prosecutors brought evidence, such as music videos that are very common, actually a tool of evidence in these cases to prove that they that the defendants involved were members of a gang.
There are all these they used specific forms as long they in the videos, they talk about possible use of violence, etc., and there were also Facebook messages, etc., etc. But the problem with this idea of gang culture is that through this image that the individuals involved are part of, a gang association can be very broadly constructed.
Right. And this is exemplified by the fact that in many joint enterprise cases, defendants are convicted of murder when they weren't even present at the time of the of the offence. And actually, in this particular case that happened very recently, one of the people convicted was, oh, I'm trying to remember his name. But again, I apologise. I just looked at this today, but I think his name was Adam. Um, Ben, Ben Harvey, something like that.
But anyway, one of the defendants, he had to be physically restrained and removed from the dock after the sentencing, and he kept yelling as if he was being removed. I wasn't even there. Right. So this is a very exemplary of some of the main issues that are identified with the law of joint enterprise.
So this black and Asian and minority ethnic individuals who are disproportionately criminalised by the law were also found in this report to be usually younger, to have longer sentences and to have more co-defendants during trial. And these findings were confirmed to some extent by the London Review that stated that up to half of those convicted under the doctrine of joint enterprise were from VME backgrounds, as were nine out of ten of the names on the Met Police's database of convicts.
So the the the issue the fact that prosecutors use this gang, the symbol of the gun, as a very important prosecutorial tool in this case, it leads is one of the main issues that perhaps lead to the overcriminalization of black and other minority ethnic individuals. And the idea I just mentioned at the moment, you mentioned the idea of a gung ho singular images come to mind.
Right. Especially since the riots, the 2011 riots managed to once again reinforce a specific moral panic around the idea of gun violence, even though evidence studies around the riots show that most of the violence there was not gang related. But anyway, so how does this trace back into the issues that I mentioned before around ambivalence, hostility, etc.? So ambivalence that the doctrine of joint enterprise as it was definitely has a lot of ambivalence in it.
So on the one hand, it is justified as a doctrine of us seem to be and Joji will confirm that until 2016 it was good law. So it had the semblance of an approach, a principled or at least an approach that for over 30 years was considered principle in relation to criminal responsibility. And at the same time, the focus on the dangerousness of gun violence, group violence, etc., clearly off balances and predominates over the try no aspects in this area.
So it is clearly an area of criminalisation in which these issues of dangerousness can be seen very close to the surface. And because this area of the law has a heightened sense of ambivalence, it's an area that has been identified as exposing a very important tension.
And this tension has been addressed and towards the doctrine, or even though this tension could be seen, for instance, this doctrine has been defended very staunchly throughout its existence as a very important tool of prosecutorial tool in a very important, perhaps instrument of security. And something that perhaps corroborate this idea is that the doctrine of joint enterprise is just one of many different instruments that have been developed along this period to deal with the gun problem.
At the same time as it was decried as unprincipled and unjust by others, and you can say and you can perhaps see that this ambivalence has been increasingly heightened throughout the existence of this doctrine.
And then recently we see a huge reinforcement of criticism around the doctrine coming from many different directions, from the justice community, from all of these reports, etc., etc., so that the legitimacy of the doctrine was increasingly seen to be questioned due to its predominantly preventive and punitive conduct.
So I also suggest that there is a very clear element of hostility being expressed for the law of joint enterprise in that the dangerousness around this area is used as a very interesting tool to overcriminalization, to criminalise over criminalise specific populations especially, and to do so in a very hostile manner.
For instance, the symbolism of gang related violence in joint enterprise is clearly used as a marker of dangerous belonging, which ends up essentially as individuals and increasing criminalisation, you know, instead of limiting it.
It is very interesting. If you look at studies around gangs and especially sociological studies around gangs in the US, we see that gangs, the idea of a gang can be constructed in a very restricted manner as a specific subgroup belonging to a subculture in which people have bonds of solidarity towards each other, that they have specific forms of identification, etc., etc. And although if you look at the definition of a gang with some legal instruments, we see that, for instance,
the need for some form of identification to be established in order for us to be able to talk about the gang is there. And especially in joint enterprise prosecutions, we see that the idea that the individual was related to gang culture, related to gun violence in some way is used to broaden the scope of criminalisation so that individuals end up being criminalised if they were, you know, if they had any kind of association with gang members.
I think people seeing seem to be too frequently on someone's Facebook and texting each other a lot and maybe appearing in music videos, etc. They can be easily constructed as participants of a gun. That gang immediately gangs this idea of this image of a group that pursues and perpetuates violence, etc., etc. and this leads to these individuals being prosecuted.
Right. And I think this is well, very well put in the dangerous associations report problematic application of the gang discourse as a prosecution strategy. So reliant on this common sense, racialized and stereotypical discourse that links black, Asian and minority ethnic men with an involvement with guns, with drugs and with violence.
Right. So especially if you look at the socioeconomic aspects of this criminalisation, we can suggest that this construction of dangerous belonging around gang related violence translates structural problems into a problem of dangerousness. Why these people are not together, because I don't know of their their social conditions, of cultural aspects, etc. No, they were together because they were planning to do something wrong.
They were planning to engage in violence. And therefore this helps to channel hostility through otherness and estrangement. These people are estranged from society. They are in being labelled as gang related. They are estranged from law abiding society, and it's civil order.
So and an interesting aspect which has been discussed here and others like, but an interesting aspect of this problem that I'm not going to talk about in detail here is that the focus of the criticism of the doctrine, the idea that the what if if we if we do not see this broader, deeper aspects of the problems around to enterprise and instead focus criticism on its doctrinal aspects, a problem of joint enterprise as being a problem of law and a problem of principle.
We can lose sight of these larger problems around penal hostility and instead emphasise this idea of reform as a solution which we suggest is itself very problematic. And there is a paper that's coming out now in which we talk about the problems of the idea of reform around prisons and the prison crisis. But I think the same could be, say, about legal reform. Okay. I think we're coming towards the end of the presentation. So finally, just talk about Georgie. All right.
So when Georgie came, as I mentioned, right, he was it initially appeared to be a very strong decision in terms of its criticism of joint enterprise. So the Supreme Court also acting as the private counsel, and that decision said that there is no doubt that the principle that they identified as giving birth to the doctrine of parasitic accessory or liability was a new principle.
And that this principle, the Supreme Court has concluded, cannot be supported and cannot be supported because it was based on an incomplete and in some respects erroneous reading of previous case law, which was and that's, I guess is an interesting aspect for critics of joint enterprise coupled with generalised and questionable policy argument. So the Supreme Court was very clear in Georgia that the law took a wrong turn in establishing the doctrine, so to speak, of joint enterprise.
And therefore, it stated in this decision that power should no longer be good law. All right. And that from from now on, uh, sorry. My my laptop went to sleep now. And the cases which would previously fall into this idea of joint enterprise should now follow general rules of accomplice liability. So joint enterprise should be no more or any particular in terms of doctrine. This decision said that intention is not only foresight should it would be necessary for the military in this case.
So that main doctrine of criticism of parasitic accessory liability was directly addressed and said someone cannot be held liable for murder in those cases anymore, only for having foreseen that the murder might occur now, then they will need to be proved that they intended to assist or encourage the commission of that murder. Right. So in the answer it sounds that's pretty good, right? So why didn't it work? Basically, why? Why two years on? People can say that nothing has changed, but.
Well, like I identified in relation to issues around the criminal law, more generally, there is a symmetry here in attention and ambivalence in relation to the form and the substance of the judgement. So we can say that formally the judgement is saying no more joint enterprise. Now we only have accomplice liability and this is good. This is better. All right. However, if we dig a bit deeper, there are several problems with that case.
Right. First is that although it said foresight is no longer sufficient to ground them in Syria for a murder in those cases. This idea of foresight still remains at the heart of the mainstream cases of joint enterprise. Right. So Supreme Court was very clear that the error there was to equate foresight with intent to assist as a matter of law. The correct approach is to treat it as evidence of intent.
Right. However, in the case, if we read the case in more detail, we see that the idea, the foresight, what would be in those cases, the main evidence of intent is very clear. So still, the idea is that although there is a formal difference there, which we the jury needs to be satisfied, that the defendant intent is to encourage the way in which this intention is constructed in the case will still be through the same route.
Right. And this was made even clearer when the Supreme Court was going to went on to discuss the effect of its decision on previous convictions. So the Supreme Court was seemed very confident in their decision that this doesn't mean that previous convictions are in any way insecure or they led to any form of injustice. All right. And is this part of the decision was really interesting.
So the error identified of equating foresight with intent is important as a matter of principle, but it does not follow that to have been invoked into the facts of the outcome. So at the same time, as I said, there's something really wrong here and there's a lot. 35 years, they said. But this doesn't mean that previous cases were wrong.
Right. And this has been translated in the aftermath of the decision so far in which all appeals but one have been dismissed because virtually the Court of Appeals is adopting this principle, which is a well-established principle, that changes in the law should not necessarily lead to appeals unless substantial injustice can be established.
Right. But the fact that this law has been so severely criticised, considered unjust by so many people and to some extent also by the Supreme Court in this decision, and that at the same time, none but one so far cases could actually challenge the previous law is curious. And this one case was very recent like a couple of weeks ago, and a retrial was overturned. So we can still see what will actually be the outcome of this retrial.
So, I mean, formally speaking, we can say, well, there are many reasons why there is such a protection on past convictions here. All right. If we allowed all these appeals, you know, chaos would ensue, the floodgates, etc. And also it would be very onerous. Right. So there are these these, of course, a pragmatic aspect to this element of the decision.
But I suggest that this element of the decision is also an expression of the inherent ambivalence around this area of the law in which the Supreme Court itself, in many ways seemed to say that, that although the principle, the form of the law had to be protected, the message of of around the responsibility and individual justice in the law needed to be protected and reform substantially more.
So we could be safe. We could be assured that most of these cases, these previous cases manage to identify dangerous individuals who could have been fairly convicted of murder or. And so we can identify this ambivalence and we can also identify an element of hostility in the decision, in the sense that the decision, although it was very clear that we wanted to to reform this this formal aspect of the law, it still did a lot.
There was a lot of work in the decision to protect the efficacy of the law, in preventing gun violence, preventing group violence. Just like the old doctrine was doing. Right. And we can see that in many aspects of the decision. For instance, this new mens rea and we you say intention is still required, is interestingly left really open to the idea that the courts need to prove intention. Jury needs to be satisfied that the defendant intended to assist the most serious crime.
But no real substance is given as to what degree of foresight this this this intention really requires.
And this is interesting because this contrasts with, for instance, the discussions around oblique intent that relate to the law of murder, in which the current law suggests that in order to find intention to kill or intention to cause grievous bodily harm, the courts need to be satisfied when looking at the misery of the principle that the principle, if the intention was not the principles primary aim in the sense of their purpose.
Nevertheless, the principle can still be said to have intended to cure, to seriously harm the victim. If they could have been said to have foreseen that the result death or serious harm, was a virtual certainty of the arising from their conduct. So discussions around intention and liability as as a principle seem to really try to protect these oblique form of establishing intent.
And in this decision here, it's almost as if the opposite was attempted in which the Supreme Court was very clear that although intent is not necessary, intent can be construed as constructed through foresight. So although there is this formal difference, substantially nothing suggests that things need to change that much in this area. And perhaps for that reason, liability for joint enterprise both strategy continues to rely on the same prosecutorial strategies.
And this approach has been condoned by the Court of Appeal, which suggests that in in this decision that it's difficult to foresee circumstances in which there might have been a case to answer for joint enterprise before Joji and then might no longer be after Georgie. All right, so singing for us is the same evidential strategies. The same prosecutorial strategies can be used before and after the new case. What changes is mainly the articulation of the mens rea.
Right. And another interesting aspect of the this expansion of the law of manslaughter or this this hostility around joint enterprise, which I only briefly mention, though, because I need to wrap up, is that interestingly, this decision in Georgia could be said to have expanded the law of manslaughter.
And this is a technical point in the sense that before in the old doctrine of joint enterprise, although it was said, it was clearly said that someone could be held liable for murder, for merely foreseeing that that murder might take place by someone, could use cause to try to relieve themselves of liability by using this idea of fundamental departure that the crime, the murder was a fundamental departure from the common purpose of the joint enterprise.
And one of the practical ways in which it was proven is that the defendant could sufficiently establish that they did not know that the principal was carrying a knife. Let's say the if they did not know the principal had the lethal weapon, then they could be said to not have foreseen that crime, because the crime was a fundamental departure from the joint enterprise.
And interestingly, in those cases, the old law seemed to suggest that these defendants should be should not be held liable for the death. So it was murder or no liability. If there was fundamental departure and the Supreme Court in Georgia was very clear that, well, one problem with tort law is that we seem to have forgotten that if for some reason a defendant in this case cannot be held liable for murder, they can still be held liable for manslaughter. Right.
So even though the Supreme Court said fundamental departure is off, we no longer have this rule. After Georgia, we have something as overwhelming super meaning incident. So that just wanted to make the idea more complicated to make sure that this fundamental department is to be a really fundamental departure. Right. So but even so, they so even with this real fundamental departure, it's fine because such defendants will still be held liable for manslaughter.
That's fine. So not only this decision did very little to reduce the scope of criminalisation for murder. It has also increased the scope of criminalisation for manslaughter. So potentially, people who in the old law might not have been held liable for anything will now be held liable for a very serious criminal offence, which carries a potential penalty of life imprisonment. All right. So I would suggest that it's clear hostility exemplified through this decision as well.
So to conclude, just some broad reflections tried to argue that the law is constrained, the condition, but its fundamental ambivalence. And this ambivalence can be seen as expressed through the subject of joint enterprise, and especially after Georgia. We can see that there is an effort to make it responsible reform, to make the criminalisation as upheld by principles of autonomy and responsibility, however dangerous in substance, still fundamentally dangerous in substance.
The fact that joint enterprise is only one example of this construction of dangerous belonging also reinforces to me this idea that we should place little hope that this kind of judicial reform can, in fact, in any significant way change these problems around the criminal law. Because as long as the law continues to preserve structurally violent conditions, it will remain permeated and driven by hostility.
So as long as the law, especially the criminal law, inhabits this very problematic space, it will still need its barbarians. It cannot do away with its forbearance because its forbearance are, unfortunately, some kind of a solution to these issues. Thank you.