Joint Enterprise

So today we’re going to be talking about the issue of joint enterprise, specifically in relation to allegations of murder and we’re also going to be looking at other ways in which people caught up in this kind of investigation and prosecution can be prosecuted.

I’d like to start by introducing our panel. On my left is Matt Corn, Matt’s a partner at Olliers Solicitors. Matt qualified as a barrister in the mid 1990s but then switched and qualified as a solicitor over 20 years ago. Matt has been with Olliers for approximately 10 years now and Matt specialises in defending serious criminal allegations and to my mind there isn’t a more experienced criminal defence lawyer when it comes to serious allegations in the North-West than Matt.

On my right is Alex. Alex is an associate with Olliers, he’s been with us for 10 years and Alex also specialises in defending serious criminal allegations and Alex is also responsible for the training of younger members of the Olliers team and recently introduced The Crown Court accreditation scheme at Olliers for younger and middle level members of staff.

So that’s the introductions over with, perhaps I could start with my my first question to Alex.

So Alex, put simply or simply how would you describe the concept of joint enterprise?

Well a person’s guilty of a joint enterprise offence if they have encouraged or assisted somebody else who’s known as the principal offender to commit an offence and they’ve had the same intention as the principal offender, so in the context of a murder it would be that they have encouraged or assisted somebody to kill someone and they have had the intention that person be killed or seriously harmed. It could be giving somebody a lift to a murder scene, it could be handing them a weapon at the scene or it could be something as simple as shouting words of encouragement. So it can cover a whole range of scenarios, okay.

Matt has the law in relation to joint enterprise or can you describe how the law in relation to joint enterprise has changed over the years?

It it has in more recent times, I think 2016 there was a fairly landmarked case that was determined by the Supreme Court which changed the law in quite a significant way in relation to joint enterprise. Previously, you had a situation where if there was a group activity and for example somebody died somebody was stabbed and one person in that group had had been the as assailant then the others in the group often were and could be found guilty purely by being present and although they may not have had the intention that that person be killed or seriously injured the fact that they were present and that they foresaw that there was a possibility that it could happen, for example that they knew somebody had a knife was enough so it was a very low bar, very low threshold. But in 2016 a case went right the way to the Supreme Court and what that held was that that’s wrong and we’ve got to make it fairer, frankly, which so that now even though you can be in a group and be convicted even if you’re not the person that inflicts the stab wound or the person that fires the gun, you have to have, if you’re in that group, you have to have the same intention as the person that ultimately is the assailant. So you still get these scenarios where people are charged as part of a big group but it gives from the defendant’s point of view at least a fighting chance of being able to explain whilst I was present, whilst I thought something might happen, no way did I sign up to that, I didn’t want this person to be seriously harmed or let alone killed and so the law did change and it’s had a knock on effect I think although there are still cases that are charged in that way; group activity, it just means that your client if he didn’t intend that to happen cannot be convicted or should not be convicted of that offence.

So if there’s a large group of youths, for example, involved in an incident where someone dies is it now less likely that every single member of that group would be prosecuted, alternatively less likely that every single member of that group would be convicted?

That’s a good question. I don’t think it’s any less likely that they’ll be prosecuted, certainly cases we’ve done in recent times show that it’s very common for the CPS where there are a large group to charge everybody and then run it to trial. In terms of whether it’s less likely now that they will be convicted I think that is true. Certainly we’ve done cases where whilst the prosecution maintained it’s only one person that inflicted the fatal blow or fired the shot or inflicted the stab wound, depending on the circumstances, it all depends on the individual activities of the others in the group so you may have some that have stood around and done nothing and looked at it and been shocked at what they saw, but didn’t remove themselves from the scene like they should have done, they stayed there and waited and saw it, often those people will be found guilty of manslaughter the lesser charge because they are acting unlawfully but they didn’t have the intention as shown by their behaviour and their conduct that this person be killed or suffer serious harm. The other scenario though members of the group might be saying go on stab him stab him, they would be guilty of the offence of murder because they are actively encouraging somebody to commit the offence and by their actions, their encouragement, they are showing to the jury that they must share that intention, they want someone to be harmed seriously or killed. Others as I say, if they are not actually doing something then it’s far more complicated because the jury would have to infer what they were doing before, what that person must have expected would happen, but it’s very difficult to prove what that person was thinking and what they intended so it has to really be looked at what they physically did.

Okay, so on the the subject of what the prosecution has to prove can you talk us through the elements that are required on the part on the part of the prosecution?

Yes I mean there has to be some participation in the act, wouldn’t necessarily be that that person needs to actually be present, if there is a scenario where that person might not be present – I’ll give you the example where there’s say an execution, a gangland execution, where somebody is targeted and murdered, there may only be one person or maybe two people that are present at the scene, you have a situation where maybe there’s a car that drives to the scene one person gets out and kills the person, the other person drives away. Obviously the person that shot the gun would be would be guilty, the person that drove the person there would be guilty if he knew what was going to happen. But you could have a scenario where there are people that have organised it, organised the hit. Somebody may have purchased a phone or may have set up a system whereby you know it was difficult to detect what was going to be happening, so there has to be participation in what’s intended to happen, so that would be the first stage. Has this person participated ultimately in the act that has been committed, that’s the first stage. Obviously if they have the next element is the mental element, what was in their mind what was their intention, if they provided a phone for example not realising what that phone was going to be used for then they certainly have an argument that they’re not guilty. If they provided a gun, be a different ball game because it’s pretty obvious what you’re going to do with a gun so it’s all about what the intention was so it’s two stages; what act did they actually perform within that crime or alleged crime and two what was the intention; what did they intend to happen.

Can you have a situation where someone is ticking all those boxes, but then prior to the commission of the actual offence something happens where they’re no longer a participant in it?

Yes, I mean somebody could back out of it I suppose and that would be a significant factor it wouldn’t necessarily stop them being charged but again it would be a significant factor when presenting their defence, or for example they could have been present when things were being discussed by a group or a person and they just, having maybe initially thought it was a good idea of change their mind and backs out of it, and that would be a very tricky area but, yes, if you can show or if the person can show that in fact when it was committed, when it happened they were no longer party to it and had not intended that to happen, then they would be not guilty of the offence but It’s tricky.

So they’ve effectively withdrawn their participation from a joint enterprise?

Yeah, but it would all depend on what they did prior to that you know if they already set the ball rolling and they already done things that they knew at that time was going to cause ultimately the offence then they would still be guilty. But if it was a question of nothing was pre-planned and you know a decision was taken by one member of the group to do something and that person realised what was about to happen and said I’m not having any of this I’m going home, then they would they would not be guilty.

So Alex, what’s meant by participation and association?

Well participation is what the prosecution need to prove, so it’s not enough for them to prove that the defendant is associated with the primary offender, sorry the principal offender, and it’s not enough for them to prove presence at the scene. They must prove that the defendant actively participated in encouraging or assisting the offence.

And association?

Well association is an association with the offender, so knowing them being associated to them and they usually establish that by phone contact being the classic example even if they can’t do it face to face, CCTV or otherwise which nowadays very often they can but phone is really the the key now. Or somebody may have been pulled over in a car, in the same car as somebody that on a previous occasion, that could use as evidence of association.

In a lots of cases Matt we have allegations where people are alleged to be so-called gang members. What do you have to say about evidence that someone is a gang member?

Yeah I mean sometimes the prosecution take the decision this is a gang related offence, so we say, prosecution will say, you know this is a group of people that we say is a gang that are from this vicinity of town and the victim was a member of a conflicting gang. Different to distinguish between what’s a gang and what’s just a group of friends and associates who may be criminally minded. Often the prosecution talk about an organised crime group which is a rather more sophisticated version of a gang where, for example, it’s a group of organised criminals involved in drug related activity or firearm related activity and from that group an order was made for somebody to be murdered. But often when you talk about gangs the scenario that the CPS prosecution are thinking about is a group of maybe young people, maybe teenagers that are part of an association who communicate with each other on various forms of social media and that the prosecution present that as an organised gang which may have a name, it may not, so sometimes they run their cases on the basis that it’s a gang related activity and other times they will say well, the group that attacked this person acted as a gang but just for the purposes of the act. So you could have a group of people that set upon one person and prosecution will describe that as a gang, a gang of youths attack this person, but that can be distinguished from an organised gang where the murder was carried out in the name of or on behalf of the gang and those scenarios do happen as well and they are sometimes prosecuted on that basis, it just really depends on the individual scenario but we have had cases particularly in Manchester in recent years where you know the prosecution cases that the victim was in the wrong place at the wrong time, in other words he had encroached on territory on a road or an estate which was predominantly being run, if you like, by a gang and he shouldn’t have been in that group because he was affiliated to another gang and there’s been a spate of those, not quite so recently, but four or five years ago there was a number of cases of that type where that was the theme if you like of the prosecution that it was a gang related activity.

Alex, what is a conspiracy to murder and how does this differ from an allegation of murder?

The key to a conspiracy offence is it’s an agreement between two or more people to commit an offence, nothing else needs to be proven. So for a conspiracy to murder it’s an agreement between two or more people to kill someone, there doesn’t need to have been a death, so it’s a more appropriate charge when there’s been a plot to kill somebody but no actual death occurred or alternatively, where somebody’s died but they weren’t the intended target. So in that situation you could have a conspiracy to murder the intended target who’s still alive and a joint enterprise prosecution on the individual who was actually killed.

Following a death, a murder, lots of people are arrested and spoken to by the police and frequently we are contacted by people who there may be under investigation for murder but alternatively it may be an allegation of assisting an offender. What is this offence, can you describe this offence?

It’s tempting to think that assisting an offender and joint enterprise are quite closely linked because assisting an offender or assisting an offence is an essential part of a joint enterprise, but actually they’re quite distinct. Assisting an offender is more about trying to evade justice after the fact, so it is an act with the intention of helping somebody avoid an arrest or a prosecution with the knowledge that they committed a relevant offence. In this situation a relevant offence is anything that could be prosecuted by over five years or five years or more in prison, so murder obviously falls under that bracket, and it is actually quite an interesting offence because it potentially criminalises things that could actually be seen as quite innocent so it might involve disposing of a weapon or destroying a car which is quite overtly potentially criminal, but it could also be something as innocuous as washing somebody’s clothes or giving them a lift somewhere, so yes.

Going away with them for a couple of days?

Well say the airport, we’ve had quite a few scenarios and it’s a good point because there are a lot of cases that we’ve had in recent times where they have gone along that route and the sort of people who get charged are often family members, partner of the person that is deemed to be the principal offender for example. Scenario where, you know, the person helps them go get away for a few days or maybe books a hotel or maybe hires a car for them so that they can go away for a few days and, you know, it’s taken very seriously. I mean not always do they know the extent to which they are assisting an offender, sometimes they don’t know the scenario at all, sometimes they will be told a lie by the principal offender; listen I just need you to hide this car or hide this or can you let me stay here for a few days it’s nothing to worry about and they don’t really know, they know they might know there’s something a bit dodgy but they don’t necessarily know what this person’s accused of or has indeed done and so it’s quite commonly activated by the prosecution

It’s often someone who’s closest to them and there’s a strong emotional attachment between the offender and that person, like their mother or their girlfriend.

Girlfriend quite often, yeah mother can be as well absolutely.

No they’re difficult situations, and sometimes maybe they are dragged in as leverage by the investigation which is extremely stressful for everyone concerned, I get that.

I think that’s been really helpful and I hope it’s been really useful to anyone who is interested in this area of work and the work that we do at Olliers, so thanks for your time this morning, yeah it’s been great thank you.