When the law changes there is a presumed inherent shift in its applicability.
However there may exist, as in the case of Jogee, a thin line between the theoretical and practical effect of that change.
Background Joint enterprise is a common law principle which places criminal liability to the participants in a criminal enterprise for all matters which arise. To be convicted of an offence, it needs to be proven that a defendant committed the physical act (Actus Reus) and possessed the mental element, the intention (Mens Rea). The law presumed that there was a common purpose in setting out to accomplish Crime A and therefore sufficient foreseeability of any other offences committed. The unfairness which was sometimes created by this is that Defendant B may have intended only to go along with a plan to steal but never to kill as his friend may go on to do. The practical effect of this old law was the creation of a higher threshold for Defendant B who did not actually commit Crime B as his intention was satisfied from the possibility that his friend would go rogue and commit a second offence.
Present – Supreme Court Decision
The question of law which the Supreme Court corrected was to accurately distinguish foreseeability of an act from the intention to conduct the same. However the two were not completely disassociated as the latter can be inferred from the former to effectively satisfy the mental element of the secondary party.
Although Jogee now leaves open a spectrum for foreseeability to be measured, the change of direction, from Chan, to the jury may still prove similar results. The occurrences where foreseeability would not be found or not demonstrate evidence of intention to perform an unplanned act are quite rare, particularly where a weapon is involved.
The Judgment was specific in listing the facts of the law which did not change which include the availability of murder or manslaughter where the likelihood of harm preceded death. Again, it is noted that situations where there is no likelihood of harm present is rare.
Ultimately it remains with the jury to decide on the measure of foreseeability needed to source the evidence.
It remains unquestionable that there will be a practical effect with the change from Jogee or any decision of the Supreme Court. In this case, however, the extent of the practical effect may be overshadowed by the possibility that its application will fail to result in more alternate judgments; limited to rare circumstances where foreseeability was almost virtually impossible.
Notwithstanding the above, the law is fully reviewed before such change and as such it is welcomed.