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Week 3: Joint Enterprise

Page history last edited by Belinda Child 5 months ago

English Common Law and the Joint Enterprise Principle

English criminal law is renowned for the influence of common law, i.e. laws that are based on societal customs and enforced by judges in the courts. The use of precedents from the higher courts such as the Court of Appeal and the Supreme Court (until the Constitutional Reform Act 2005, known as the House of Lords) enforce these common law principles.

 

The term ‘British’ criminal law would be technically incorrect as Scotland and Northern Ireland have slightly different systems – such as the ‘not proven’ verdict in Scotland that goes alongside the usual ‘guilty’ or ‘not guilty’ decisions.

 

The influence of the common law has arguably diminished over the last hundred years or so as an increasing number of offences have been created by statute (Acts of Parliament). It has now reached a point where judges are no longer expected to make law (assuming they ever had this power) but to merely interpret it and so new crimes are supposed to be only created by legislation (i.e. statutes/Acts). There are many reasons for this change in emphasis and a study of these could provide enough content for an entire undergraduate module.

 

There is a fine line between ‘merely’ interpreting law and making law as illustrated in the case of R v R (1992) 1 AC 599. In that case the five judges in the House of Lords interpreted the then definition of rape as provided by s. 1(1) of the Sexual Offences (Amendment) Act 1976 in an unprecedented way. In so doing they abolished the so-called marital immunity for rape and arguably created a new criminal offence. The constitutional ‘rights and wrongs’ of this decision were seen by most people as of secondary importance to the need to reform this anachronism in English law.

 

Probably the most famous example of the common law’s contemporary relevance is the offence of murder. There are statutes that deal with the punishment for this crime – currently a mandatory life sentence and ones such as the Homicide Act 1957 that mainly deals with partial defences to the offence such as diminished responsibility (s. 2), provocation (s. 3) and suicide pacts (s. 4). The term ‘homicide’ does not strictly cover an offence in English law as it is used for a general label of the two possible offences of murder or manslaughter. To date no English statute has defined murder and the common law is still in use today with it generally referred to as "the unlawful killing of a human being in the Queen's peace, with malice aforethought."

 

This kind of interplay between statute and common law is also apparent in the study of the ‘joint enterprise’ doctrine:

 

The Doctrine of Joint Enterprise

This is a common law principle that can impose criminal liability for behaviour differing greatly from the customary requirements of criminality – i.e. the actus reus (‘guilty act’) and mens rea (‘guilty mind’). It will be seen below how it is argued that many of its recent convictions infringe Art.6(2) of the European Convention of Human Rights which states:

"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." 

(It should be noted that Art.6(2) is not an absolute right – see week 5)

 

Departures from the usual ‘actus reus/mens rea’ standard are permitted in the case of inchoate offences. Inchoate can be explained as something that is rudimentary or undeveloped or more pertinently for a legal sense, something that has begun but is not fully formed. It is the umbrella term for offences such as attempted crimes, incitement and conspiracies.

 

The Statutory Framework

A joint enterprise law has never been passed by Parliament but there are statutes that have created inchoate offences.

 

(a) s. 8 of the Accessories and Abettors Act 1861:

"Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender."

These four inchoate terms are given their standard dictionary meanings. Indictable offences are the most serious offence category in English criminal law and can only be tried in a Crown Court.  There is a similar provision in s.44 of the Magistrates' Courts Act 1980 for the two lower categories of summary and either way offences.

 

(b) The Serious Crime Act 2007 also has provisions for imposing criminal liability without necessarily having a person’s full participation in an offence.

Three offences have been created by this statute:

(i) s. 44 - encouraging or assisting an offence intentionally

(ii) s. 45 - encouraging or assisting an offence believing it will be committed

(iii) s. 46 - encouraging or assisting “one or more of a number of offences” believing one of them will happen, but not knowing which one it will be.

 

A problem for researchers of inchoate offences is the discovery in 2011 from the House of Commons’ Justice Select Committee that no official records are kept of joint enterprise prosecutions. Is this another example of the so-called ‘dark side’ of crime where the lack of knowledge hinders evaluation of the responses to it?

 

The Common Law

The joint enterprise principle is a common law doctrine and cases such as that resulting in the execution of Derek Bentley (“Let Him Have It”) in 1953 have been dealt under it. The Court Of Appeal’s ruling in R v ABCD (2010) EWCA Crim 1622 expressed three ways in which it could be used:

“The expressions 'common enterprise' or 'joint enterprise' may be used conveniently by the courts in at least three related but not identical situations:

i) Where two or more people join in committing a single crime, in circumstances where they are, in effect, all joint principals, as for example when three robbers together confront the security men making a cash delivery.

ii) Where D2 aids and abets D1 to commit a single crime, as for example where D2 provides D1 with a weapon so that D1 can use it in a robbery, or drives D1 to near to the place where the robbery is to be done, and/or waits around the corner as a get-away man to enable D1 to escape afterwards.

iii) Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a second crime (crime B) which D2 had foreseen he might commit.

These scenarios may in some cases overlap.”

(As per Lord Justice Hughes, para.9)

 

The foreseeability of departure from what was explicitly agreed or intended is referred to as “the so-called Chan Wing-siu principle” – please see ps. 286-7 of the judgment of the House of Lords in R v Powell [1988] where it was stated:

“the test of foresight is a simpler and more practicable test for a jury to apply than the test of whether the act causing the death goes beyond what had been tacitly agreed as part of the joint enterprise” (Lord Hutton at p.287).

 

Please see the Law Commission (2007) at para. 1.8 for an example of how the principle might work.

 

Questions to consider:

i) Would you agree with Lord Hutton’s views above?

ii) Is joint enterprise a valid term for something that can be a departure from the agreed joint venture?

 

Further details can be found in the House of Commons 2012 and Judicial Comments documents.

 

The Policy Framework for Joint Enterprise

The influence of the common law is clearly apparent in the Crown Prosecution Service’s policy for prosecuting these kinds of cases and it can be accessed at:

Joint Enterprise charging decisions principal, secondary and inchoate liability

 

Researching the Evidence from ‘Joint Enterprise’ Prosecutions

In 2014 the publication of research by the Bureau of Investigative Journalism received some wide publicity in the media and this work is very useful in seeking to understand the current use of the principle.

 

In addition to that research and the work from official law reform bodies such as the Law Commission, there are also grassroots organisations contesting this practice, such as Joint Enterprise: Not Guilty by Association (JENGbA). JENGbA currently support nearly 500 prisoners that include men women and children convicted under this law with the youngest being 13 years old; in addition 80% of these people are from BME communities. Some of the stark realities of this law’s application were powerfully conveyed in the 2014 award winning film ‘Common’ by Jimmy McGovern. The high-profile, serious and emotional nature of many of the joint enterprise cases has made it difficult for alternative voices to be heard in the public discourse. However, a previous Jimmy McGovern film entitled ‘Hillsborough’ did much to rectify the lack of knowledge regarding the real causes of that stadium disaster in 1989. It remains to be seen whether it and the many other dissenting voices will be heard sufficiently in the future.

 

The views of Jarvis (2014: 1) at Insight, Westlaw give an indication of some of the problems the use of this common law principle appears to be creating:

“Anyone meandering through the Central Criminal Court at the Old Bailey on an average weekday would be struck by the number of multi-handed trials where the guilt of the defendants is asserted on the basis of their complicity in some heinous crime, most often murder. In some of those cases the identity of the killer will be unknown but the prosecution will contend that whoever ended the tragic victim's life it matters not because as long as those in the dock were "in it together" they are all guilty of murder.”

 

The research interest in the issues raised by this topic has led to the recent publication of work by Williams and Clarke (2016).

 

 

Task Two Individual Submission – 750 words (9th March 2020)

 

Individual submission - 750 words in total on RICO and Joint Enteprise

 

On your designated page of your wiki you are required to provide a 750 word critical evaluation of the differences and similarities in the responses in the USA and the UK to situations where liability can be imposed on participants in a criminal enterprise for all that results from that enterprise.

 

Your evaluation has to focus on the American federal criminal code of "Racketeer-Influenced and Corrupt Organizations" (RICO) as brought in by the Organized Crime Control Act 1970; and in the UK, the common law doctrine of joint enterprise.

 

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