Joint Enterprise: Can you be guilty of murder by merely being present at the scene?

This month the Supreme Court has finally remedied the dangerous principles that underpin the Joint Enterprise Doctrine in relation to murder cases.

In Criminal Law under the doctrine of Joint Enterprise a person can be convicted of a crime they did not necessarily physically commit. The 300 year old doctrine has been applied to those who were associated with the crime, or present at the scene. It has been widely used against individuals for serious offences; such as murder, even though they were not the principal offender.

The purpose of the doctrine is to convict those who knowingly assisted or encouraged the principal offender of the same crime. However, this is only the case if by assisting and encouraging they intended the crime to take place, knew that it was going to take place or foresaw that it might take place. It is here where the lines of liability become blurred and individuals who were physically nowhere near the murder scene have been convicted of murder.

Problems

The Joint Enterprise net is cast far and wide when applying the issue of foreseeability. This is signified as “parasitic accessorial liability” and can be demonstrated where two or more agree to commit one crime acting for a common purpose and one deviates from the original crime, committing a second crime. An individual must foresee that the second crime could have been committed by the principal offender, even if he/she did not want or intend it to happen. This person therefore becomes a subject of secondary liability; deemed responsible for the second crime also. The principle is founded in Chan Wing-Siu v R [1985] A.C. which created the foresight test and has been applied thereafter.

Cases surrounding this principle are confusing and contradictory; they fail to clarify if an individual need only foresee that a death could occur or if the principal offender would cause the death. There is also a very low threshold in establishing foreseeability and is satisfied by thinking the principal offender has a weapon or is an individual with a certain personality who would have the propensity to commit such an act. It requires a great deal of speculation to exist and almost assumes an individual is a mind reader. The application of the foreseeability test has led to many being convicted of a serious crime they did not know was taking place.

The Change

The Supreme Court in the case of R v Jogee has now clarified the principle of foreseeability. The decision has hit the headlines, promoting further awareness of Joint Enterprise, and has fundamentally helped restore faith in the Criminal Justice System.

Jogee was convicted of Murder under Joint Enterprise. Jogee and his co-defendant attended an address to commit a crime, which resulted in his co-defendant taking a knife from the kitchen of the house and stabbing the victim to death. Jogee was outside the property shouting and encouraging the co-defendant to do something to the victim. The jury were directed under Joint Enterprise that if Jogee could foresee that by encouraging the co-defendant he might use the knife to kill the deceased, then he should be found guilty of the murder.

The recent Supreme Court judgment found that foresight of the second crime was not an “automatic authorisation of it” and that the doctrine had been wrongly applied for decades.

“The long-standing pre Chan Wing-Siu practice of inferring intent to assist from a common criminal purpose which includes the further crime, if the occasion for it were to arise, was always a legitimate one; what was illegitimate was to treat foresight as an inevitable yardstick of common purpose”

The judgement highlighted the common law approach in relation to intention which is also consistent with parliament’s provision under s44 The Serious Crime Act 2007:

“…. a person is not to be taken to have had that intention merely because of foreseeability”

The Supreme Court has ruled that there must be proof that an offender intended for the crime to take place and that foresight alone does not show intention. As a result, the principle in Chan Wing-Siu is now reversed and will no longer apply.

Future

Joint Enterprise has proved to be a formidable tool in tackling gang related violence but it is the most vulnerable who are caught up in its misapplication. Youths in society are increasingly becoming involved in gang crime and many are serving life sentences as a result of Joint Enterprise. The new ruling will offer greater protection and prevent unjustified and highly disproportionate sentences handed to young offenders, whose lack of maturity and age allow them to be caught up in gang crime.

Although this decision is a step forward for Criminal Justice, it will not remedy all the unjust convictions already passed under this controversial doctrine. The Supreme Court made it clear that Appeals out of time will only be granted in exceptional circumstances and previous convictions are not automatically deemed void.

The use of Joint Enterprise in criminal proceedings has ruined many innocent lives, but support is available for those who have been affected. Organisations exist which aim to support family and friends of those convicted. Having attended one organisation meeting myself, it is apparent that the doctrine has created a ripple effect of devastation through the lives of those connected, but their tireless campaigning and passion for restoring justice is inspiring. It is the commitment of such organisations that has bought about this fundamental change to our legal system.