A year in the life

I have been asked by Solicitors Journal to reflect on my past year, during which I became Legal Personality of the Year at the inaugural Solicitors Journal Awards, a wonderful event which was the highlight of my career so far.

As many readers of Solicitors Journal know, I divide my time between Australia and England, working on cases in both jurisdictions and teaching and running research projects at Charles Darwin University. The combination of legal practice and academic research is a valuable one and has been significant in my ability to assist in death row cases in Indonesia and a project on women in prison for

Lexis Nexis.

It has been an amazing year which included assisting in a temporary reprieve for Mary Jane Veloso, who still faces death row in Indonesia for drugs trafficking, and publishing a book chapter with the Advocate's Gateway on vulnerability in justice systems, but perhaps the most spectacular moment was when, in October 2015, I appeared to argue the case of Ameen Jogee in the UK Supreme Court.

I had only been in silk a year and this was probably the most important case in English criminal law for at least three decades.

Although on day one we struggled, partly because the acoustics were such that I couldn't hear Lord Toulson, by day three I think we had it nailed: we had an answer to every question that had been asked by every judge and found time to relax sufficiently to remind the court that they had a leaflet on display for visitors which asked for a solution to a question relating to joint offenders '“ they got to answer their own question.

I had an amazing team of juniors and academics who had researched every possible angle and we were confident we were correct. The case involved 500 years of law on complicity and a miscarriage of justice known as 'joint enterprise'. As is well known, the Supreme Court, sitting for the first time at the same time with the Judicial Committee of the Privy Council, took the brave decision to admit that the law had taken a wrong turn in 1984 and the reduction of mens rea from intention to foresight was contrary to the common law.

Ameen Jogee's conviction for murder was quashed. He was subsequently acquitted of murder at a retrial. The conviction of young men like Ameen Jogee using joint enterprise is an international disgrace, and those who are trying to appeal face continuing barriers in having their cases heard.

It is right to say that not every conviction using joint enterprise will be unsafe. The law on common purpose survives the Supreme Court decision. In allegations against accessories to murder, trial judges can choose to direct juries to consider individual intention to assist or encourage or whether the evidence demonstrates an intention to participate in a common purpose to kill or cause really serious harm. Returning to the correct foundations of the common law allows juries to properly consider manslaughter as an alternative. Where the evidence indicates an intention to assist or encourage an attack which would involve some harm but not serious harm or death, accessories will be at risk of conviction for manslaughter.

Mr Jogee was convicted at retrial of manslaughter on this basis and sentenced to 12 years' imprisonment. He will serve half. He had served five years and three months of a life sentence, which will be deducted, and he will therefore be released next year and remain on licence for another six years. Importantly, he will not be on life licence and will no longer be wrongly labelled a murderer. He was found to be an accessory to manslaughter.

Where accused persons did not intend to assist or encourage a violent attack, they ought to be acquitted altogether. It is not hard to direct juries on intention. Judges do it every day. Joint enterprise was unnecessary and facilitated easy prosecutions, catching those who had no intention to participate. Now prosecutors must be more precise and judges can sum up reflecting the actual evidence, not assumptions.

I am extraordinarily proud to have taken part in this defining case. It is still much misunderstood, notably by the High Court of Australia in the recent decision of Miller v The Queen and others. I have a follow-on appeal there in which I hope to correct that decision. I also have a similar appeal in Hong Kong. Mary Jane Veloso has been in the news recently as she is still under threat of execution if her evidence in the trial of her recruiters is not accepted, so more needs to be done to help the authorities to understand the complicated intersection between drug trafficking, human trafficking, and the death penalty. As I start the next phase in my career at Carmelite Chambers, I am sure it will be another busy year.

Felicity Gerry QC is a barrister at Carmelite Chambers, London, and William Forster Chambers, Darwin, and a senior lecturer at Charles Darwin University

@felicitygerry

www.felicitygerry.com