Toby Wilbraham, Specialist Criminal Defence Lawyer, considers the implications of the latest Supreme Court Judgment in relation to Joint Enterprise Law
UK law people can be charged and convicted of criminal offences when they are not the primary offender but a secondary offender acting together with the primary. The law has been interpreted widely in the past, enabling secondary offenders to be convicted simply if they had ‘reasonable foresight’ of what the primary offender may do. This has lead to a number of questionable murder convictions of defendants in murder cases where their actions were minimal but still caught under this provision. This position has now been changed in the Supreme Court ruling of R v Jogee; Ruddock v The Queen on the 18th February 2016.
Previous Joint Enterpise Law
The CPS Guidelines on Joint Enterpise showed that there were three situations where joint enterprise could arise:-
(1) Where two or more people join in committing a single crime, in circumstances where they are, in effect, all joint principals
P1 and P2 go on a shoplifting spree together, both taking goods out of shops without payment. They are joint principals.
(2) Where D assists or encourages P to commit a single crime
In this scenario, P, with the fault element, carries out the conduct element alone. D is an accessory (assists or encourages the offence). D does not need to be present at the scene of the offence. Both are liable for the offence. P is liable as a principal. Ds liability as a secondary party is based on proving:
- P’s commission of the offence, although P need not be identified, charged or convicted.
- D giving assistance or encouragement to P.
- D’s intent to assist or encourage.
- D’s knowledge of the essential elements of P’s offence. The courts have interpreted knowledge broadly in this context. It has been held to include belief, contemplation or foresight that the essential elements might be committed.
P and D commit a burglary. P alone enters as a trespasser and steals from the premises. D assists or encourages P by driving P to and from the scene and/or acting as a look-out, knowing that P is going to commit burglary. Both are liable for the burglary, P as the principal, D as an accomplice.
(3) Where P and D participate together in one crime (crime A) and in the course of it P commits a second crime (crime B) which D had foreseen he might commit
In this scenario, D may act as a principal or an accessory to crime A. D is also liable for crime B, as an accessory. It is not necessary that D wants or intends this further offence to be committed, although D must have foreseen that P would or might carry out the conduct element of offence B with the necessary fault element of offence B. Most of the case law in this area involves cases of murder and manslaughter, although the principles are applicable to other offences.
D and P carry out a burglary (offence A). P acts as principal, entering the premises and stealing. D assists or encourages P by acting as a lookout. However, In the course of the burglary, P kills householder V, with intent to kill or do really serious harm. P is liable for murder of V as a principal. D may also be liable for murder, as a secondary party, if D foresaw when participating in the burglary with P, that P might commit a criminal act (use unlawful force) with intent to kill or do really serious bodily harm.
This 3rd provision was based on Caselaw in Chan Wing-Siu v R a case decided by the Privy Council in 1984.
Changes to Joint Enterprise Law
The change in law came after a panel of five Supreme Court judges considered the case of Ameen Jogee, who had been convicted under joint enterprise of the murder of former Leicestershire police officer Paul Fyfe in 2011. The Court criticised the decision of the Privy Council in Chan Wing-Siu v R.
The Judges stated that, following that case, courts had been in “error” in treating the fact that a secondary, co-accused had foresight that the principal attacker might carry out a killing as sufficient proof of guilt in assisting or encouraging them.
Lord Neuberger, the president of the supreme court said:
“The correct position is that … foresight of what the principal might do is evidence from which the jury may infer that he intended to assist or encourage to do so…..but it is for the jury to decide on the whole evidence of whether he had the necessary intent.”
Joint Enterprise in Offences of Murder
In essence what this means that Joint Enterprise can no longer be proved on the 3rd position above any more, restricting the scope of the law. This aspect was often applied in murder cases to fringe members of group attacks who were lesser involved but shown to have had some foresight that someone could have been killed or seriously injured. It will now be harder for the CPS to convict such fringe participants in such cases. This will of course be of relief to family members of those accused of such actions, but of little comfort to those whose relatives have been killed.
Toby Wilbraham – Specialist Criminal Defence Lawyer
Written by Toby Wilbraham ,criminal defence solicitor. Toby is an integral member of the Olliers team having worked for the firm since 1994, qualifying as a Solicitor in 2002. He has since qualified as a Higher Court Advocate and has considerable criminal defence experience. Toby is an extremely impressive advocate who utilises a methodical and thorough approach to the preparation of cases.