A post-R v Jogee; Ruddock v The Queen [1] application of the common law of joint enterprise liability [2] is yesterday’s decision of the Privy Council in Bastian v The King (The Bahamas) [2024] UKPC 14.
The common law of The Bahamas had apparently not taken the wrong turning that was corrected in the Jogee and Ruddock appeals [21]-[24], so this was not a case where the law had to be changed. The trial judge had erred in several respects on the requirement for intention [29], with the result that the convictions were unsafe [36], [43]. The proviso could not be applied [56], and no retrial was ordered on the charge of murder because the evidence of intention was too tenuous [61]. In The Bahamas murder requires an intention to kill [13], but the appellant might have been liable for manslaughter so the question of retrial for manslaughter was remitted [3] to the Court of Appeal of the Commonwealth of The Bahamas.
Of procedural significance is the Board’s observation on written assistance that should be given to juries where there are complicated issues of law and fact [57]. Whether this procedure should be followed in The Bahamas was for its Court of Appeal to consider.
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[1] See my note here, 2 April 2016.
[2] I like to call this “extended” secondary liability but sometimes I call it “common purpose” liability because of its slightly different statutory form in s 66(2) of the Crimes Act 1961 [NZ]. Essentially, it is liability for an offence that the defendant has neither personally committed nor aided, abetted, incited counselled or procured.
[3] Obviously it would be more correct to say that the Board humbly advised His Majesty that … (etc).
