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
- A and B commit a robbery in which both enter a bank, threaten staff, and remove money. They are both principals in the offence.
- 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.
- 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’.
There are two main exceptions. Firstly, where the secondary party withdraws from the joint enterprise, and secondly where the principal’s 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 B’s presence, A’s offence, and B’s 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.
Smith and Hogan’s Criminal Law