Why did the Supreme Court rule that the issue of foresight had been misinterpreted for the past 30 years with regards to joint enterprise?

Mubarok Juhi, Alex Mullen, James McGauley, Lauren McDonald, Regan Melngalvis

Abstract


Joint enterprise is an area of law that has no statutory definition, instead being developed through the common law. It involves situations where more than one defendant can be convicted of the same crime, even if the co-defendant did not play an active role in the crime and, since it is common law based, many would argue (including Ben Crewe, a scholar) that the laws surrounding it have been created in a ‘hazardous way’. This has ultimately resulted in the Supreme Court ruling in 2016 that the law had been misinterpreted for the past 30 years- and judges had been using the law to wrongfully convict people, with a major factor being the issue of foresight had been misunderstood. In the past the jury had been able to use proof of foresight of a crime as a suitable mens rea for joint enterprise, a lower mens rea threshold than for other convictions of murder and post 2016 this is no longer the case. This essay will therefore explore the leading case where the decision to overturn the law was made, what happened prior to 2016 and any appeal cases and the social context of joint enterprise legislation.

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DOI: http://dx.doi.org/10.19164/sjppar.v1i1.800

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