Monday, May 16, 2016

Ruddock v R

R v Jogee [2016] UKSC 8
Ruddock v R [2016] UKPC 7
That Julian Knowles QC of the UK is a brilliant barrister there can be no doubt.  He regularly appears in death penalty cases in the Courts of Appeal of the West Indies, and is well-known to the barristers and judges of the region.  His arguments usually prevail.  I don’t know Felicity Gerry QC, but she and the other senior British barristers in these appeals are probably just as brilliant.
They persuaded the Privy Council to reverse itself on a long-held principle of law.  That is what they did in this case, a murder appeal from Jamaica:   The video of Lord Hughes’ delivery of the judgment is here:   It is even more spectacular that the decision in this Privy Council case has been delivered jointly with an English decision in the Supreme Court of the United Kingdom.
Ever since as a first-year law student in 1968 I attended Lord Kenny’s Criminal Law lectures in the Great Hall at Lincoln’s Inn, I have known that it is a fundamental principle of the criminal law that an accessory is as guilty as the principal to the commission of the offence.
That principle of the common law was later extended, in what has been called the rule in Chan Wing-Siu v R [1985] AC 168, or the doctrine of parasitic accessory liability.  This reads that:
if two people set out to commit an offence (crime A), and in the course of that joint enterprise one of them (D1) commits another offence (crime B), the second person (D2) is guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as he did. D2’s foresight of that possibility plus his continuation in the enterprise to commit crime A were held sufficient in law to bring crime B within the scope of the conduct for which he is criminally liable, whether or not he intended it.
In both the English case of Jogee and the Jamaican case of Ruddock, the appellants were convicted of murder after directions on parasitic accessory liability to the above effect. 
In Jogee’s case, he and a friend named Hirsi spent the evening of 9 June 2011 taking drink and cocaine, becoming increasingly intoxicated and aggressive.  They got into a violent argument with the deceased at his girlfriend’s residence.  Jogee was brandishing a bottle, striking a car in the road with it, and shouting encouragement to Hirsi.  It was Hirsi who stabbed and killed the deceased with a knife he picked up at the premises.  The jury convicted Jogee after a standard Chang Wing-Siu direction on the liability of an accessory.
In the Ruddock appeal, his co-defendant, Hudson, pleaded guilty to the murder of a deceased taxi-driver on the beach at White House in St James in Jamaica on 30 June 2007 in the course of robbing him of his Toyota station wagon.  Ruddock admitted to the police that he had helped tie the deceased’s feet in the course of the robbery.  He denied that he had participated in Hudson’s later murder of the deceased by slitting his throat with a ratchet knife.
The trial judge directed the jury that the prosecution had to prove that each of Hudson and Ruddock shared a common intention to commit “the offence”.  That common intention included a situation in which “the defendant, whose case you are considering, knew that there was a real possibility that the other defendant might have a particular intention and with that knowledge, nevertheless, went on to take part in it.”   He did not tell the jury that if they were sure that Ruddock was a party to carrying out the robbery, it did not automatically follow that he was also party to the murder of the deceased.  That question required separate and further consideration.  Instead, the jury accepted the standard parasitic accessory direction given by the judge, and convicted Ruddock of the murder as an accessory.
The Crown argued that even if the Chan Wing-Siu principle was wrong, it should be a matter for the legislatures to decide whether to make any change in the law.  The principle was in place in England and Wales, and in other common law jurisdictions such as Jamaica, for 30 years. 
After a detailed analysis of the law on accessories, Lord Hughes, with whom the other judges agreed, starting at paragraph [79], decided that the principle was wrong and that the Board must reverse it.  He asserted at paragraph [85] that the doctrine was a common law one and it was proper for the courts to correct any error in it.
Before the Supreme Court/Privy Council, counsel for the Crown accepted on behalf of the prosecution that if the court concluded that the Chan Wing-Siu principle was wrong, the appeals must be allowed.  The court had no difficulty in the Jogee appeal in deciding that the appeal must be dismissed.  In the Ruddock case, they invited the parties’ written submissions as to the advice which they should humbly tender to Her Majesty regarding the disposal of the appeal.  The judgment in the Ruddock appeal is thus an interlocutory one in the sense that it is a preliminary one to the final delivery of the advice which the Board will tender to the Queen.
At paragraph [3] of the judgment, Lord Hughes nonchalantly notes that “The two appeals, Jogee in the Supreme Court and Ruddock in the Judicial Committee of the Privy Council, were heard together.”
Having read the scholarly and detailed analysis contained in the joint judgment, no one can take any issue with the law there set out, nor with the conclusions of law arrived at.  My problem is with the forum, or the court itself.  I have difficulty seeing how the UK Supreme Court comes to be delivering a final English judgment jointly with a Privy Council judgment, interlocutory though it might be.
In this case, one bench of judges heard argument on two appeals, one to the Supreme Court from the English Court of Appeal and the other to the Privy Council from the Jamaican Court of Appeal.  They then delivered one judgment.  The only concession offered by Lord Hughes to the constitutional requirements occurs when in dealing with the Ruddock facts and argument he switches his language in the judgment to refer to himself and the panel he was part of as the Board of the Privy Council.
I never saw or heard of such a thing before.  The West Indies do not share the Supreme Court with the United Kingdom.  The Supreme Court is a UK court, while the Privy Council is a Jamaican court.  Amazingly, there has not been a stutter of protest at what in my view is an extraordinary act of constitutional impropriety from the Bar anywhere in the Caribbean that I have read of.
The only explanation there can be is that everyone here is as stunned at this development as I am.
10 May 2016
Don Mitchell CBE QC
Article originally written for the publication ‘West Indian Lawyers’