Joint Enterprise - Justice Committee Contents

2  The current law and criticism of the doctrine

5. To find a defendant guilty of a criminal offence, a jury must be satisfied 'so that it is sure'[3] that the defendant both committed the crime and had the requisite state of mind to carry out the crime, known as the mens rea. An example is murder. To be convicted of murder an offender must be shown both to have caused the victim's death and to have intended either to kill or cause 'really serious harm.'[4] Another example is burglary. To be convicted of burglary under section 9(1) of the Theft Act 1968 the defendant must be found both to have entered a building as a trespasser and, at the time, intended to commit theft or grievous bodily harm.[5]

6. Secondary liability allows the prosecution to proceed not only against the principal offender who committed the crime but also against others who were involved in the commission of the offence. Crucially, secondary liability is a common law doctrine. According to Professor Jeremy Horder, Professor of Criminal Law at King's College, London and former Law Commissioner, the rules on complicity were originally "drawn up to accommodate the notion that people have different roles in the commission of an offence"[6] and the rules have evolved over the years. The Law Commission commented in one of its reports on complicity, Participating in Crime,[7] that: "At the core of the doctrine of secondary liability is the notion that D can and should be convicted of the offence that P commits even though D has only "aided, abetted, counselled or procured" P to commit the offence".[8]

7. While the courts have often treated joint enterprise as an umbrella term,[9] the type we considered in this inquiry is a form of secondary liability whereby a person who agrees to commit a crime with another becomes liable for all criminal acts committed by the other person (the principal offender) in the course of their joint criminal venture. Professor Graham Virgo, Professor of Criminal Law at Cambridge University, gave us the following example:

where two persons, D1 and D2, have a common purpose to commit one crime, such as burglary (crime A), and, in the course of committing that offence, D1 commits another offence, such as murder (crime B). D2 will be liable for crime B as a secondary party if he foresaw that D1 might commit that offence with the necessary intent. D2's liability is justified on the ground that, by continuing with the common venture after realising that crime B might be committed in the course of it, he will have sufficiently associated himself with the commission of crime B and will from then on be considered a secondary party to that offence.[10]

As Professor Virgo points out, joint enterprise is, in the strictest sense, a misnomer because the doctrine concerns liability for an offence that is a departure from the agreed joint venture.[11] It is in this sense that we use the term joint enterprise in this report.

Joint enterprise and other forms of complicity

8. Joint enterprise, in the form described above, must be seen in the context of other common law and statutory forms of complicity, including aiding, abetting, counselling or procuring; and the law on inchoate liability, where an act intended to assist the carrying out of a criminal enterprise is completed but the enterprise itself fails because the principal offender does not carry out the act intended.[12] Together they allow prosecutors to bring proceedings against all participants in offences, a particularly important weapon in tackling large scale criminal operations such as drug smuggling. However, as can happen with common law doctrines, the law on complicity has been complicated over the years by court decisions. The Law Commission, in its report Participating in Crime, identified the limited reach of inchoate liability as leading to an over-extension of secondary liability, which carries more serious consequences for the secondary participant. This in its turn created problems with the "parity of culpability"—the principle that those facing the same punishment should be equally guilty of the offence.[13]

9. The Law Commission's recommendations in Participating in Crime (2007) together with those in its earlier reports Inchoate Liability for Assisting and Encouraging Crime (2006)[14] and Murder, Manslaughter and Infanticide (2006)[15] allowed for complete and interlocking statutory provision for complicity. To date however, only the reforms contained in Inchoate Liability for Assisting and Encouraging Crime have been enacted.[16] The Government has announced it will not be implementing the proposals in Murder, Manslaughter and Infanticide during this Parliament and told us in written evidence:

Ministers have written to the Chairman of the Law Commission to explain that whilst there may be potential benefits to implementing the report on Participating in Crime, this would be a major piece of work and it will not be possible to implement the report during the life time of this Parliament due to other priorities and pressures on Government resources. The Government hopes that it may be possible to return to this subject in the longer term, however.[17]

Concerns over the law on joint enterprise

10. The aspect of joint enterprise which has come in for most criticism is the mental state required for a finding of guilt, or mens rea. This type of joint enterprise essentially relies on the court determining what the offender could have anticipated or foreseen rather than what was explicitly agreed or intended: the so-called Chan Wing-siu principle.[18] Professor Horder explained the principle using the example of a murder committed in the course of a burglary:

if you [the principal offender] commit the murder in the course of the burglary, I [the secondary offender]must have foreseen that that the murder might occur as a realistic possibility, not a purely fanciful one, yet...carried on to commit the burglary along with you...I must have anticipated that [the murder] might occur.[19]

11. In its 2007 report on aspects of secondary liability the Law Commission recognised that the principle was "severe", although the Commission recommended its retention with certain safeguards.[20] Tim Moloney QC and Simon Natas, both specialists in criminal law, argue that the principle should be abandoned because in some cases it can lower the bar for conviction:

The prosecution will usually find it easier to adduce evidence that the defendant foresaw what the principal might do than to adduce evidence that he actually intended the principal to cause serious injury or to kill—indeed, such evidence may not go far beyond evidence of association (or alleged "gang membership") added to alleged presence at the scene. For this reason, the Chan Wing-siu principle increases the likelihood that cases will be prosecuted on the basis of weak and tenuous evidence...[21]

12. In addition, Professor Graham Virgo told us that the courts' approach to determining the mental state required for a finding of joint enterprise was "inconsistent".[22] In some cases the secondary participant in the criminal venture was only required to foresee the commission of the offence. In others, the secondary participant was apparently required to foresee the state of mind of the principal offender, as well as foreseeing the criminal act itself.[23]

13. One of the reasons the Law Commission recommended the retention of the Chan Wing-siu principle was the existence of two defences. A defendant can refute a charge under the joint enterprise doctrine either by showing that there is a "fundamental difference"[24] between the joint criminal venture agreed on and the crime committed during the course of that venture, or by showing clear and unambiguous withdrawal from the venture before the crime took place.

14. The nature of the first defence has meant that the "common law has tied itself in knots trying to understand or give extra detail to the meaning of 'fundamental difference.' "[25] Whether a weapon is present, whether a 'more lethal' weapon is used than could have been anticipated, how 'more lethal' should be defined and how the principal offender's state of mind should be viewed in evaluating whether a "fundamental difference" exists have all preoccupied the courts in recent years.[26] The House of Lords considered the defence in 2008[27] and the Court of Appeal in both 2009[28] and 2010.[29]

15. The law relating to withdrawal is less complex but we were told that it is too tightly drawn. Tim Moloney QC and Simon Natas told us:

The case of Mitchell suggests that in fact, [a defendant charged with secondary liability] may find it extremely difficult to argue that [the principal offender's] offence was too remote...Rather, the scope of a joint enterprise, even in a case of spontaneous violence, can be drawn so wide that those who would appear to have little or no culpability for the killing can be included within it.[30]

In Mitchell the defendant and her friend became involved in a violent argument over a taxi with another group of people:

The fight ended. Mitchell's co-defendants went to a nearby house and armed themselves with weapons. She did not go with them. They returned to the car park where they saw the opposing party and chased them. Having caught up with them, an assault ensued and fatal head injuries were caused to the victim. At the time, Mitchell was in the car park looking for her was [left] open to the jury to conclude that the enterprise that Mitchell had joined at the time of the argument over the taxi still continued at the time of the fatal attack. She, by her continued presence in the car park, had not withdrawn from it. Mitchell was therefore convicted of murder even though it was accepted that she may not have participated in the second assault at all.[31]

3   The modern formulation of 'beyond reasonable doubt'. Back

4   R v Vickers [1957] 2 QB 664 Back

5   Theft Act 1968, section 9(1)  Back

6   Q 119 Back

7   Law Commission paper No. 305, May 2007, Cm 7084 Back

8   Participating in Crime, para 1.5  Back

9   See Hughes LJ in R v ABCD [2010] EWCA Crim. 1622 Back

10   Ev w10 Back

11   IbidBack

12   Hughes LJ, R v ABCD Back

13   Participating in Crime, paras 1.7-1.11 Back

14   Law Commission paper No. 300, July 2006, Cm 6878 Back

15   Law Commission paper No. 304, November 2006, HC 30 Back

16   Serious Crime Act 2007 Back

17   Ev 36 Back

18   R v Chan Wing-siu [1985] 1 AC 168 Back

19   Q 116 Back

20   Participating in Crime, para. 3.8 Back

21   Ev w7 Back

22   Ev w11 Back

23   IbidBack

24   R v Powell and English [1999] 1 AC 128 Back

25   Q 108 Back

26   Ev 43 Back

27   R v Rahman [2008] UKHL 45 Back

28   R v Yemoh [2009] EWCA Crim. 930 Back

29   R v Mendez and Thompson [2010] EWCA Crim. 516 Back

30   Ev w8  Back

31   IbidBack

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Prepared 17 January 2012