Joint Enterprise in the news, but what is it?

    Joint Enterprise in the news, but what is it?

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    Joint enterprise

    The issue of joint enterprise is very complicated. There is disagreement among academics, practitioners, judges and CJS authorities as to how it works, and that’s before we start to consider how it should work. Below, we provide a brief outline of the concept and some of the issues it presents.

    What is it?

    Joint enterprise is a ‘common law doctrine’ which developed over several hundreds of years to deal with some situations in which a crime is committed by more than one party. Joint enterprise is wide-reaching, involving circumstances where the parties are principals or secondary parties.

    A principal in an offence is the individual(s) carried out the substantive offence, e.g. in a murder with a firearm, the individual(s) who pull(s) the trigger to discharge the weapon that fired the bullet that caused the death. It is possible that a group can all be principals, e.g. where three men, each carrying a knife, stab the victim; they would be joint principals in a s.18 wounding.

    A secondary party is an individual who assists or encourages the principal to commit the substantive offence (this used to be known as aid, abet, counsel, or procure).

    It is not necessary that a joint enterprise be pre-planned – it is possible that a common purpose (see below) occurs spontaneously.

    Different types of joint enterprise

    1. A and B commit a robbery in which both enter a bank, threaten staff, and remove money. They are both principals in the offence.
    2. Where A and B commit a robbery where A is driving the getaway vehicle and B enters the bank to actually commit the robbery, A is not a principal. However he has assisted or encouraged the offence.

    3. A and B take part in a street robbery; A assaults the victim and removes his mobile phone from his pocket. B acts as a lookout. A is the principal and B is the secondary party, assisting in the offence. During the course of the robbery, the victim resists and A stabs the victim with a knife, intending to cause really serious harm. A is liable for murder. B is liable for murder if he foresaw that A might commit an act with the intention to kill or cause really serious harm or liable for manslaughter if he foresaw that A might commit a criminal act with intent to cause harm less than really serious harm.

    See – R. v ABCD [2010] EWCA Crim 1622.

    Exceptions

    There are two main exceptions. Firstly, where the secondary party withdraws from the joint enterprise, and secondly where the principals act is fundamentally different from that foreseen by the secondary party, the secondary party will not be liable.

    Why is it contentious?

    As it stands, the law enables the prosecuting authorities to lazily charge individuals on the periphery of an offence with the substantive offence, without having to particularise what they have done to contribute to the offence, simply stating Bs presence, As offence, and Bs foresight of the offence.

    In many cases, the result is that young, (very often) black men are swept up in murder cases in which they have really played no significant part, yet the doctrine of joint enterprise allows them to be held responsible.

    Joint enterprise in the courts

    On 27 October 2015, the Supreme Court began to hear the case of R. v Jogee, with a conjoined appeal of Ruddock v The Queen (Jamaica) heard by the Judicial Committee of the Privy Council.

    The appellant, Jogee, is asking the court to return to the essence of joint enterprise by requiring that A has a connection to the offence, knowledge of the essential ingredients as to what B is doing and authorising acts demonstrating an intention to participate in the offence.

    The judgment is expected shortly after christmas 2015.

    Further reading

    CPS Guidance

    Smith and Hogans Criminal Law

    Blog by Felicity Gerry QC and Catarina Sjolin

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    Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

    8 COMMENTS

    1. If I understand correctly it is the law of joint enterprise under which two of the gang who attacked Stephen Lawrence – neither of whom actually wielded the knife – are now long-term guests of the taxpayer: and let’s all remember that.

      • If I understand correctly it is the law of joint enterprise under which two of the gang who attacked Stephen Lawrence

        I’d be interested to hear what Dan and Lyndon thought about the trial of Norris and Dobson. I doubt that anyone is sorry to see them behind bars, but I have an uneasy feeling that few babies have been thrown out with bathwater in order to get them there.

        • I didn’t mean the words I quoted to come out in quite such a strident font! The blockquote tag seems to work differently on this site to the way it does on others.

        • It’s a difficult case as you say. On the one hand there is no sympathy for either of them, on the other, the use of DNA and Joint Enterprise, as well as the overwhelming press coverage in the years between the murder and trial, are troubling.

        • The most significant baby thrown out with the bathwater is of course double jeopardy. One of them was acquitted at that ill-advised private prosecution and the other was not even committed for trial – he of course was not entitled to the protection of double jeopardy which is bizarre.

          The gap in the fence is small but it will get bigger – last year a Conservative MP introduced a Bill to allow for appeals whenever there is an acquittal. Frankly, theprice paid is too high.

    2. It was also used to convict Derek Bentley.

      All laws will, at times, catch really bad people and, at other times, catch people widely thought to be deserving of sympathy. Neither situation is a good model for deciding what the law should be; I’d rather the Supreme Court worked that out based on principles.

      • I disagree. If the law is drafted/applied/interpreted so that is encompasses behaviour that ought not to be criminal, the drafting/interpretation etc. is poor.

    3. On the facts as the jury believed them Bentley was guilty; it was the fact that the sentence was carried out when the real gunman could not hang which was so shocking.

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