R v Jogee: retrial in 'joint enterprise' case

7 April 2016, amended 8 April 2016

Further to the Supreme Court's judgment of 18 February 2016, the Court has now received and considered submissions from the parties on the disposal of the appeal in the case of R v Jogee.

The Supreme Court has today issued an order directing that Jogee will be re-tried on the charge of murder (with the included alternative of manslaughter), at a re-trial to take place at a Crown Court determined by a Presiding Judge of the South Eastern Circuit.

Jogee will be remanded in custody pending his re-trial and any application for bail be made to the court of trial, or (if before that is known) to the Court of Appeal (Criminal Division).

Media representatives and those publishing material on social media channels should note that pursuant to section 4(2) of the Contempt of Court Act 1981, no further publication of the facts or circumstances surrounding the death of Mr Fyfe should be made before the re-trial; and no further publication concerning the first trial of the Appellant and subsequent appeal shall be permitted until the conclusion of the re-trial.

This does not prevent reporting of this order itself, the re-trial itself (any restrictions on the reporting of that trial will be a matter for the trial judge), or academic discussion or law reporting of the Supreme Court´s judgment.

It is of course of the utmost importance to all involved that the re-trial can proceed without complaint that publicity has made a fair trial impossible. While the existence of today's order is a matter of record, the Court asks that any reporting is careful to avoid repeating any details which could jeopardise the re-trial process.

The Supreme Court's reasons, made available to the parties today alongside the order, are reproduced in full here:

  1. The court is satisfied that there was and remains a prima facie case to answer of murder or alternatively manslaughter.
  2. The conviction for murder must be quashed because the direction as to the mental element of a secondary party followed the law as laid down in Chan Wing-Siu v The Queen, now overruled by this court and, as a result of that direction, the jury may not have considered whether the defendant intended to encourage Hirsi in causing death or at least grievous bodily harm to Mr Fyfe.
  3. It is in the public interest that the guilt or innocence of Jogee on the charge of murder alternatively manslaughter should be determined by a fresh jury approaching the case anew and correctly directed upon the law as it is now known to be.
  4. Neither the findings of the first jury nor any observations of this court as to the interpretation of those findings will, unless they somehow become admissible in the re-trial, be of any relevance to the jury in that re-trial.
  5. On the material provided to this court the publicity given to its decision does not appear to be such as to prevent a fair re-trial of Jogee. To the extent that it has concerned the general state of the law relating to alleged secondary offenders it is mixed. To the extent that it has recorded the strong feelings of the family of Mr Fyfe, this court is not persuaded that a jury properly directed will be unable to put those out of consideration in deciding the re-trial on the evidence.