Joint Enterprise | Where are we now?


Despite the common law doctrine of ‘Joint Enterprise’ being a well-established principle of English Law, there has been a relatively quiet but progressive movement seeking to challenge what many see as an unfair and unjust doctrine that has led to hundreds of wrongful convictions.

Steven Micklewright of Kangs Solicitors examines the origins of joint enterprise and considers whether in light of a number of recent decisions, the doctrine is simply on a path of reform or whether the recent authorities signal the beginning of the end.

What is Joint Enterprise? | Murder Cases | Kangs Solicitors

Joint Enterprise is where an offender knowingly assists or encourages the criminal act with another and they agree to act together for a common purpose.

Joint enterprise is a common feature throughout the land in every day practice and its application covers the full breadth of the criminal law. The principle has, however, become highly controversial in its application in murder cases.

In the recent combined appeals of R v Jogee and Ruddock v R [2016] UKSC 8 the Court of Appeal has concluded that the principle has been wrongly interpreted and applied  throughout the last 30 years.

The Origins of the Doctrine of Joint Enterprise | Kangs Solicitors

The doctrine can be traced back to the early 19th century where it was a fundamental principle of English Law that a person who intentionally assists or encourages a crime can be tried as the primary participant.

The Accessories and Abettors Act 1861, section 8 provides that:

‘whosoever shall aid, abet, counsel or procure the commission of any indictable offence…shall be liable to be tried, indicted and punished as a principal offender’

Section 8 merely cemented what was already an established principle of English Law.

What changed? | Joint Enterprise Solicitors

In 1985 the Privy Council ruled on the case of Chan Wing-Siu v R [1985] AC 168.

The case centred around three appellants who all, armed with a knife, attended a flat. The Crown’s case was that the three intended to rob the husband of the female occupant.

The male was stabbed to death and the female was slashed across the head. All three appellants were convicted of murder.

The trial judge directed the jury that an accused was guilty of murder if proved to have in contemplation that a knife might be used by a co-defendant.

The Privy Council upheld the appellants’ convictions for murder concluding:

‘The case must depend…on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend’

This is where the law took a wrong turn by incorrectly broadening the principle of joint enterprise and which has since been applied for the last 30 years.

This broader principle became known as Parasitic Accessory Liability.

In effect, the principle states that where a secondary participant jointly acts with the primary participant in committing a crime and in doing so ‘foresees’ the possibility that the primary participant may commit a completely different crime, the secondary participant can be tried jointly as a principal to that crime.

The Result | Murder and Manslaughter Cases | Kangs Solicitors

The effect was that post Chan Wing-Sui, a secondary participant, could be convicted of murder even if it could be shown on the evidence that he did not intend to support the primary participant in committing the act that led to the victim’s death.

The consequence was to effectively reclassify conduct as murder which would otherwise have been classified as manslaughter.

This broadening of the established law was arguably borne out of a desire to meet public policy issues. Sir Robin Cooke stated:

‘What public policy requires…is…where a man lends himself to a criminal enterprise knowing that potentially murderous weapons are to be carried and in the event they in fact are used by his partner with an intent sufficient for murder, he should not escape the consequences’ [p177]

This broadening of the principle led to a number of anomalies in the doctrine of joint enterprise.

The most striking was that as a result of Chan Wing-Sui, secondary participants were being convicted on a lower threshold of mental culpability than that required of the primary participant.

Where are we now? | Serious Crime Solicitors | Kangs Solicitors

The Supreme Court in the recent combined appeals of R v Jogee and Ruddock v R [2016] UKSC 8 have effectively reinstated the law applied pre Chan Wing-Sui i.e. that the secondary participant must intentionally assist or encourage the primary participant, not merely foresee that the primary participant may commit the act leading to the victim’s death.

The Lords unanimously held:

‘we do not consider that the Chan Wing-Sui can be supported…our analysis leads us to the conclusion that the introduction of the principle was based on an incomplete and in some respects erroneous reading of the previous case law coupled with generalised and questionable policy arguments’ [79]

At first glance, many, including campaign groups may think that the recent combined judgments of Jogge and Ruddock are the beginning of the end for the principle of joint enterprise.

The Court was quick to point out, however, that rectifying the law does not render invalid all convictions which were arrived at over many years by the Courts who faithfully applied the law as set out in Chan Wing-Sui.

The Supreme Court held:

‘The error identified of equating foresight with intent is an important matter of legal principle, but it does not follow that it will have been important on the facts to the outcome…moreover, where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time’

Whilst the Supreme Court’s decision should bring some comfort to those who advocate for the abolishment of the doctrine of joint enterprise, the Court has not only reinstated the principle with its original intent but has unequivocally affirmed its continued place in English law.

How we can help in Serious Criminal Cases | Kangs Solicitors

Kangs Solicitors have a vast amount of experience in representing clients charged with crimes alleged to have been committed as a secondary participant

Our lawyers fully understand the difficulties when seeking to argue that a client was not acting in a joint enterprise. This will inevitably always turn on matters of fact and ultimately be a consideration for the jury.

If you are charged with a criminal offence, having not been the principal offender, then contact us in order to discuss your case with one of our expert lawyers.

Kangs Solicitors have represented clients charged under the principle of joint enterprise with the following offences:

Please feel free to contact our serious crime lawyers Sukhdip Randhawa, Amandeep Murria or Steven Micklewright of Kangs Solicitors

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