Joint Enterprise – 30 years of injustice?

19/02/2016

With the recent case of Jogee appearing before the Supreme Court, Joint Enterprise is a hot topic once again.

Joint enterprise is a doctrine used in law where more than one person is tried for the same crime. It is often used in serious crimes, such as murder or robbery, and where groups or gangs are involved.

The doctrine allows people to be charged with an offence, even where their role is limited, (e.g. did not strike the fatal blow), or where the roles are different (the ‘getaway driver’ vs the ‘robber’). This allows those who were not a primary offender to be punished as if they were the primary offender.

Until now, the courts have held that where two or more persons embark on a joint enterprise each is liable for the acts done in pursuance of that joint enterprise. That includes liability for unusual consequences if they arise from the agreed joint enterprise. If a participant in the venture goes beyond what has been “agreed”, the other participants could be liable for the consequences if they foresaw the possibility that the principal offender might commit a further offence – crime B. If the second defendant did foresee this, the Courts treated his continued participation in crime A not simply as evidence that he intended to assist crime B, but as automatic authorisation of it.

The Supreme Court in Jogee has now stated that the correct rule is that foresight is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage, which is the proper mental element for establishing secondary liability. Two issues must be decided. The first is whether the defendant was in fact a participant, that is, whether he assisted or encouraged the commission of the crime. The second issue is likely to be whether the accessory intended to encourage or assist the principal to commit the crime, acting with whatever mental element the offence requires of the principal.

The comments of the Supreme Court, may now pave the way for some defendants to request leave to appeal against their conviction out of time where ‘Joint Enterprise’ was the main basis of their prosecution. It is estimated that there are hundreds of cases where secondary offenders have been convicted where the doctrine of ‘Joint Enterprise’ has been misinterpreted. However it should be noted that the Supreme Court has emphasised that leave will only be granted if substantial injustice can be demonstrated.

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