Joint enterprise

When an offence is committed by one of several people but it is not possible to prove which one of them actually carried out the actus reus.

Where two or more people commit the actus reus with the necessary mens rea, for example, if two burglars enter a house with the intention to steal, the law regards each of them as a joint principal.   The law is less satisfactory in the case of 'joint enterprise'.


Joint enterprise occurs where an offence is committed by one of several people but it is not possible to prove which one of them actually carried out the actus reus. Joint enterprise requires a person who commits a crime, the principal, and secondary participant(s) who assists the principal in carrying out the crime.


The joint enterprise need not be for profit, although this is a common motive. Joint enterprises can therefore include partnerships, joint ventures or business activities where there is an agreed goal or purpose.


This area of the common law is problematical and not without its critics. One important point is, that if it cannot be shown that they were acting in concert or for a joint purpose or agreement, then the jury should acquit all the defendants (R v Lane and Lane (1986), R v Aston and Mason (1992)).


The concept has given rise to concern in recent years. Problems arise where a person who is to be treated as part of a joint enterprise is found liable for all of the crimes committed by one of the other members of the joint enterprise, and not just those offences where it was contemplated that an offence would be carried out as part of the joint criminal venture. This area of the law is particularly problematical where an unlawful homicide arises.


The Law Commission has considered the matter extensively. 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)  and Murder, Manslaughter and Infanticide (2006) 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.

In 2016 the Supreme Court of the UK handed down their judgment in R v Jogee (Appellant) and clarified the law in respect of the mens rea required for a conviction for murder on a joint enterprise charge. At the trial at Nottingham Crown Court the trial judge had directed the jury that Jogee was guilty of murder if he took part in the attack on the victim, Mr Fyfe and realised that it was possible that his co-defendant Hirsi might use a knife he (Hirsi) had taken from the kitchen with intent to cause serious harm.

In summary up the trial judge had relied upon Chan Wing Siu v R (1985) and R v Powell and another; R v English (1999). It had been held that for an accomplice to be guilty of murder it was sufficient for the prosecution to establish that he foresaw death or grievous bodily harm as a possible incident of the common design being carried out. The subsequent cases of R v Powell and another; R v English (1999) also came under scrutiny as they had also followed the decision in Chan Wing Siu.


In so doing the Supreme Court called into question the decision in the case of Chan Wing Siu which is said to have taken a 'wrong turn' in blurring the distinction between foresight and intention, with the result that the courts, in following Chan Wing Siu, have not been faithfully applying the law as it stood at the time. The Supreme Court in Jogee went on to point out that the correct rule is that foresight is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage and it was the intent to assist or encourage which is the proper mental element for establishing secondary liability.


In Jogee, the Court gave a fully considered judgment in which they made clear that when more than one person engages upon a crime all those persons who are together responsible for the crime are all guilty of it. The law is able to punish all those responsible as the law deals with those that did the criminal act or those that intentionally assisted or encouraged the crime either as principals or as secondary parties.


The particular aspect which concerned the court was the situation where secondary parties who have been engaged with one or more others in a criminal venture to commit crime A, but in doing so the principal commits a second crime, crime B. Unfortunately the crime committed in crime B is murder or cases of violence. The court addressed these concerns by spelling out the mens rea requires of the secondary party.


One aspect that the court found unacceptable was any practice of generalising by speaking of joint enterprise by simply saying that this applies when two or more people were engaged in a crime. This is because such an approach does not deal with the mental element required of the secondary party. The situation that is to say where crime B is committed during the course of crime A is sometimes labelled “parasitic accessory liability”.


In the cases of Chan Wing-Siu and Reg v Powell and English the issue that the Supreme Court had was that the approach taken in those cases was that it was sufficient for liability to be established if the secondary party (D2) simply foresaw the possibility that D1 might commit crime B. It was this flaw which having surfaced the court felt it must address and reaffirm and it did this by ruling that the mental element for secondary liability is intention to assist or encourage crime.


Ameen Jogee subsequently faced a retrial following the quashing of his murder conviction. Jogee was convicted of manslaughter and sentenced to 12 years in jail for killing ex-police officer Paul Fyfe to replace the previous term of 20 years for murder.


R v Jogee and Ruddock v The Queen - YouTube

Law and Lawyers: Jogee and Ruddock ~ Judgments of the

R v Jogee (Appellant) and Ruddock (Appellant) v The .

 Judicial Committee of the Privy Council

Appeal court upholds 'joint enterprise' guilty verdicts | Law | The Guardian.


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