Lecture Handout - Thursday 15th October 2014 - ‘But I Didn’t Touch Him’ Developments in the Law of Joint Enterprise

Joint Enterprise

“…replete with uncertainties and conflict.  It betrays the worst features of the common law: what some would regard as flexibility appears here as a succession of opportunistic decisions by the courts, often extending the law, and resulting in a body of jurisprudence that has little coherence”
- Professor A J Ashworth

The common law doctrine of joint enterprise is problematic in terms of interpretation and scope.  A wealth of Caselaw has produced three manifestations of joint enterprise, of which ‘parasitic liability’ causes the most difficulty in application, and can lead to unjust results.

Pavlos Panayi QC provides an overview of how the law has evolved in the way it has, from a law designed to deter duelling to its modern form, as a tool for the CPS to secure convictions against groups of individuals whose levels of involvement vary enormously, and by successive governments to show that they are tough on gang crime.  He sets out in broad terms the potential for injustice of ‘parasitic liability’, and the shortcomings of the two existing safeguards that are supposed to prevent that injustice arising, namely that the principle acts were ‘fundamentally different’ from what the secondary party had anticipated, or that the secondary party withdrew from the venture.  He addresses the cumulative effect in murder cases, where the low threshold for ‘parasitic liability’ combines with mandatory life sentences to result in serious injustice.  Mr Panayi concludes by posing the question of whether there is any prospect for reform.

Stan Reiz goes into more detail, explaining the three manifestations of the doctrine of joint enterprise as set out in R v A, B, C & D [2010] EWCA Crim 1622, and in particular how Caselaw has shaped ‘parasitic liability’.  He analyses the logic behind ‘parasitic liability’, and the inappropriateness of applying that logic to cases of spontaneous joint enterprise.  Mr Reiz also gives some practical advice on dealing with joint enterprise cases within the current framework of the law, from advising at the police station.

Alexandra Scott explores the shortcomings of the doctrine, both normative and in practice, looking at how it appears to be deployed to the detriment of youths and ethnic minorities, and the evidential issues that exacerbate the potential for injustice.  She sets out the findings and recommendations of the different bodies that have addressed the problem, and assesses the effectiveness of the steps proposed, and those taken, considering examples of how some foreign jurisdictions approach the issue.  She concludes by discussing the different potential roots to reform.
Questions are welcome at the end, and the talk will be followed by drinks.


Authorities

R v A, B, C & D [2010] EWCA Crim 1622
Hughes LJ sets out the three different types of joint enterprise.

Chan Wing-Siu [1985] AC 168
The leading case setting out the principles of ‘parasitic liability’:
“That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorisation, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight.” (per Sir Robin Cook)

R v Powell & English [1999] 1 A.C. 1
Leading case on ‘fundamental difference’:
“if the weapon used by the primary party is different to, but as dangerous as, the weapon which the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon, for example, if he foresaw that the primary party might use a gun to kill and the latter used a knife to kill, or vice versa.” (per Lord Hutton)

R v Mitchell [2009] 1 Cr. App. R. 31
Case setting out how high the threshold for withdrawal is.

R v Stringer [2011] EWCA Crim 1396
Toulson LJ explains the second form of joint enterprise, where assistance or encouragement is provided to the principle by the defendant.

R v Clarkson [1971] 1 W.L.R. 1402
An interesting case relating to joint enterprise by association or presence.

R v Gnango [2011] UKSC 55
Gun fight – the Supreme Court explored the concept of joint enterprise at length.

R v Bristow [2013] EWCA Crim 1540

 

Documents

The Law Commission – Participating in Crime (2007)
http://lawcommission.justice.gov.uk/docs/lc305_Participating_in_Crime_report.pdf

House of Commons Justice Committee – Joint enterprise 2010-2012
http://www.publications.parliament.uk/pa/cm201012/cmselect/cmjust/1597/1597.pdf

House of Commons Justice Committee – Government response
http://www.insidetime.co.uk/resources/Select_Committee_Reports/Joint-Ent_Gov-Res-Mar-12.pdf

CPS Guidance on Joint Enterprise Charging Decisions
http://www.cps.gov.uk/legal/assets/uploads/files/Joint_Enterprise.pdf

Commons Select Committee – oral evidence as part of the short follow up report currently being undertaken
http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/justice-committee/joint-enterprisefollowup/oral/12326.pdf

Joint Enterprise An investigation in to the legal doctrine of joint enterprise in criminal convictions by the Bureau of Investigative Journalism
https://www.documentcloud.org/documents/1100186-joint-enterprise-investigation.html

 

Articles

Robins, J., “Joint Enterprise” by Jon Robins, C.L. & J. 2014, 178(15), 220

Omerod, D., R v Bristow - case comment

Ormerod D., ‘Joint enterprise: murder – killing of bystander by other party in gunfight [2011] Crim. L.R. 151.

Ormerod D., ‘Worth the wait?’ (Editorial) [2012] Crim. L.R. 79

Ashworth A.J., ‘Aiding and abetting: mens rea – intention to assist’ [2004] Crim. L.R. 936.

Buxton R., ‘Joint enterprise’ [2009] Crim. L.R. 233.

Dennis I., ‘Reforming the law of complicity’ [2007] Crim. L.R. 511.

Rogers J., ‘Shooting (and judging) in the dark?’ [2012] Arch. Rev. 8.

Simester A.P., ‘The mental element in complicity’ [2006] L.Q.R. 578.

Smith J.C., ‘Criminal liability of accessories: law and law reform’ [1997] L.Q.R. 453.

Sullivan G.R., ‘Participating in crime: Law Com No. 305 – joint criminal ventures’ [2008] Crim. L.R. 19.

Taylor R., ‘Procuring, causation, innocent agency and the Law Commission’ [2008] Crim. L.R. 32.

Virgo G., ‘The doctrine of joint enterprise liability’ [2010] Arch. Rev. 6.

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seminar information

Date: 13/10/2014

Time: 6.00pm

Venue: Carmelite Chambers Library, 9 Carmelite Street, London, EC4Y 0DR