Saturday, 30 January 2010

Joint enterprise murder

In R v Rahman [2008] UKHL 45, Lord Brown began his speech by stating – “There are many more murderers under our law than there are people who have killed intentionally. The actus reus of murder is, of course, the killing of the victim; the mens rea (established in R v Cunningham [1982] AC 566) is the intention either to kill the victim or at least to cause him some really serious bodily injury—grievous bodily harm as it used to be called, gbh for short. As this appeal illustrates, moreover, there is a further group of murderers too, those who did not intend even gbh but who foresaw that others might kill and yet nonetheless participated in the venture." Rahman is now the highest English authority on "joint enterprise" as applicable to murder. It establishes that where a principal offender committed an unlawful killing with the requisite intent for murder, a secondary party would be liable for murder on the basis of his foresight of what the principal might do and not on his foresight of the intention with which the principal might perform his act.

Criminal liability based on what is often referred to as “joint enterprise” is very problematic and was the subject of a Panorama programme in November 2009 – see “Joint enterprise: who is guilty.” Also see BBC - “We will come for you: gangs warned.”

In the recent case of Starfield Badza v R [2009] EWCA Crim 1363, Badza had been convicted of murder of Billy Ward on the basis of “joint enterprise.” Ward was knifed many times and the evidence pointed to a co-accused Lubango as being the actual knifeman. Nevertheless, Badza was involved. The Court of Appeal applied the House of Lords decision in Rahman and dismissed Badza’s appeal.

Few would have any problem with the dismissal of Badza’s appeal. However, one wonders just how many people are now in jail for murder as a result of them being on the periphery of some serious act of violence. Did they all truly have foresight of what the other(s) might do? The law needs to send out a strong message to those who involve themselves in violence or who have potentially violent acquaintances. Nevertheless, is this strong message working injustice? Is there a case for law reform?

15 comments:

  1. yes i do think there is a case for law reform, to be given a life sentence, for a murder that you did not committ, is so wrong and unfair, the person who committed the murder should definatly be given the life sentence, but for those who either was or was not involved, should either get a shorter sentence, because some of these people have not got involved at all, so how can it be fair or justified that person, allso getting life, this law as it stands can not be justified as an honest outcome,

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  2. Sarah O'Neill11 April 2010 at 21:55

    Kujtim Spahiu is INNOCENT. He is serving 33 years for a murder HE DID NOT DO. The real murderer could not be found by the police when Kujtim was brought to trial. The victims and witness's all said he DID NOTHING, there was no evidence or forensic. Two others were charged with murder on joint enterprise with him but were found not guilty. One of them said Kujtim had a gun, he was the one visited unbeknown to anyone at the time by the police in his cell before he took the stand........ the other and everybody else said he did not have a gun. This is the most appalling abuse of the law and puts shame on the law in England.
    This innocent man must be freed.

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  3. Joint enterprise is a lazy law that needs to be abolished.

    it puts innocent people to jail especially if the jury doesn’t like the look of you, my partner has just been found guilty for wounding with intent, after he tried to stop the incident from occurring, there was also an eye witness stating that he was the peace maker, now he is looking at a long time in jail for something that he was trying to stop, how is that planned? How is that joint enterprise? BUT HE GOT FOUND GUILTY!!!

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  4. The idea behind Joint Enterprise is 100% justifiable and should be in place. You go to commit a potentially violent act like robbing a store or whatever then you and only you are responsible for anything that reasonably happens in that circumstance. Trying to rob a liqueur store with a buddy holding a gun you should be charged with Murder when the buddy goes and shots somebody.

    Now of course if someone was helping at the scene and not participating that is a miscarriage of justice, but that is not the law's fault it is the fault of the people involved in that trial.

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  5. So 20th July 13.34. You are in the shop and without warning your friend pulls out a gun/knife pointing to 'whoever', when it all goes wrong are you guilty?

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  6. The case of Badza and Lubango of which I know very well, I think the court did the right thing to send both to prison and same. Badza played a part when he headlocked Billy.So he is more than guilty because they played this part together. I go to the same church with Lubango's family and I was in the same youth group with Lubango but he wouldn't want to listen to us when we told him to leave the street life. Honestly I have no pity for him, I only feel so sorry for his family because when look at him he was such a good child but he was hanging with the wrong crowd.Maybe he is going to come to his senses during these 18years.Don't get me wrong I am also black but I don't support murderers.

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  7. "So 20th July 13.34. You are in the shop and without warning your friend pulls out a gun/knife pointing to 'whoever', when it all goes wrong are you guilty?"

    Read the law on joint enterprise, specifically i'd direct you to the case of "Rahman".

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  8. I SAY THEY SHOULD ABOLISH JOINT ENTERPRISE LAW ASAP,HOW CAN INNOCENT PEOPLE GO TO PRISON,FORESEE WHO CAN FORESEE SOMEONE ACTIONS ,IT IS TOTALLY WRONG,

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  9. Free those in prison this is injustice,and the government wonders where all the money is going tax payers paying to lock up innocent people

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  10. Joint Enterprise Law makes one person accountable for the choices of another. How is that NOT a miscarriage of justice? Each man should stand and face trial for his own actions and be held responsible for their part in the commission of a crime.

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  11. anonymous
    please stop quoting "the law" this is'nt about law it is about justice, even if you and your mates get into a fight , and someone dies, does not mean you should get found guilty of murder, particularly if the principle who "actually" committed it, admits it, and says the other people involved in the fight didnt know he was going to commit murder , till a split second before he gave the fatal blow,btw the "law" also has affray, gbh, or even manslaughter law it ca use to deal with this sort of crime , but prosecutors use joint enterprise, as it minimises the need for proecutable evidence, all they need to do is prove you were involved in the fight , even if you didnt touch the person who was murdered.

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  12. William Day
    R v Rahman [2008] UKHL 45.is certainly “not” definitive. Granted in may apply
    “all things being equal”, but as every school boy knows, each case turns on the facts of that case alone. If what you say were true, possible foresight would without a doubt mean that every case would end in a conviction. Because, it is self-evident that every murder is foreseeable as a possibility. Unreliable sources put the acquittal rate at 40%, but regardless off the true figure, Rahman can be toppled. Common sense, trumps Common Law.
    Hui Chi Ming v r again confirms no error in law. Those manslaughter verdicts were rightly open to the jury as a consideration, as an alternative consideration if murder did not fit, even though the principle could himself be found guilty of murder, and the secondary of manslaughter.
    Hui Chi Ming v r does not stand alone .R v Robin Day, the decision of the Northern Ireland court
    In R v Gilmour (2002) 2 Cr App R 407 should also be taken into account.
    R v ALEXANDER ROBERT AMIES; R v LEIGHTON JAMES RYDER; R v RICHARD GRAHAM KITE; R v CARL JOHN ELLIS (2003) - April-15-03.The court of appeal criticised the original trial judge, for his refusal to allow the jury a lesser charge to be considered. Ryder alone tried to stop the onslaught of the victim, still he was convicted.
    If the jury do not consider the defendant blameless, but do not consider them a murderer, what are they, the jury, to do if murder is the only charge available to them?
    If the acquit, that is unfair on the victim’s family.
    If they convict the defendant of murder, then that is unfair on the defendant.
    The “route to verdict” must be fundamentally flawed if murder or acquittal is the only available routs, and manslaughter, or affray, is off the menu?
    Agents of limited involvement on the periphery of events may not be blameless, but shouldn’t they be treated accordingly? Agents whose conduct equates to little more than passive acquiescence may well be innocent of all charges?

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  13. William
    I cannot buy into the notion of some J/E commentators that because the person in question was not there at the scene, therefore they are innocent. (I hired a hit man to kill my wife; I was not there, therefore they are innocent?)
    I cannot buy into the notion that because the Joint Enterprise Doctrine is allegedly over 300 years old, it must therefore be archaic and wrong. (The charge of murder goes back longer than legal memory, but clearly it is wrong to murder). Equally, some commentators argue that the age of a law must mean that it is right? An old legal principle in England that a man was allowed to beat his wife with a stick provided the diameter did not exceed the width of his thumb. Although that example has long since disappeared, abortion penalties, and imprisonment for practicing gay activities are relatively recent. The age of a law does not testify to it being right, any more than it testifies to it being wrong.
    Scenario;
    Armed robbers are making good their escape and speeding away from the robbery. A high speed pursuit takes place, and the robbers lose control of the vehicle and mow down a mother and her 2 children. That was not their “intention” but nevertheless the mother and children are all dead!
    That example supports the use of Joint Enterprise; it also supports the use of “foresight “to subvert the need to directly find “intention “a necessary ingredient for murder. But the laws use of “foresight” to impute intention as a lesser means of obtaining the “mens rea” to obtain a murder conviction should be limited to extreme cases like the former.
    It is also of note that many precedents are based on a “dangerous predicate felony “where foreseeability of further possible graver consequences is clearly apparent UNLIKE the example of a young man hanging out with his friends when an altercation takes place.
    The absence of a clear an undeniable predicate offence is a stark comparison to the robbers.
    We are however seeing J/E used far outside the “scope” of the robbery example (all things are not always equal ) and also what one might describe as “reasonable use”.
    Abolition of “constructive malice”. Homicide Act 1957; further in the Criminal Law Act 1967.
    Judges have held that J/E is not constructive malice? This is held largely by the rationale that trespass is an integral part of burglary, and so on. But murder itself “is” constructive when it turns G.B.H into murder!
    This argument follows, how do we know if they intended G.B.H they did not intend Murder?
    But this argument is outweighed by another because; just under the Murder statute lays lays the charge of Manslaughter. Manslaughter can still be a life sentence, but the judge now has the power of discretion on sentencing (within guide lines), unlike Murder where he/she has but one sentence they can administer.
    Dirty tricks have also played their part in gaining murder convictions;
    1. Allowing a defendant to believe he is being represented in the police station by a solicitor
    (When in fact it is often an Accredited Police Station Representative).
    2. Allowing, in particular, the red top tabloids to dissuade any positional witnesses coming forward to corroborate the defendants account of events, less they be attacked by the Murdoch’s of this world.(Leveson Enquiry, representations were made)
    3. Removing the possibility of manslaughter or lesser provision on the indictment, not in every case, but in many.
    4. Unfair use of inference by using the word “gang” without ever proving that they were indeed a “gang”.
    5. Allowing the same chambers to represent different clients, in the same J/E case (conflict of interest)

    Leighton Ryder, Jordan Cunliffe, Jordan Towers are but a few of those examples that raise doubts on their murder conviction.

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  14. In Leighton Ryder’s case my concern is one of “over conviction” rather than complete innocence. In his case he should take some responsibility for the events that led to a death. However, at the pinnacle of the violence with all hell breaking loose his “voluntary act” was to try his level best to stop the attack, so say many eye witnesses. Agreed that that action came too late to claim “disengagement” and does not break the chain of causation, but Ryder’s “mens rea” is to all intents and purposes, incompatible with a murderer.(Here we have a murderer who was trying to stop the attackers?) Citing any legal precedent will not change that inconvenient fact. Ryder can look the dead boy’s parents in the eye and say, I am not blameless but I did try to save your son.
    Can the law be right to deny the jury the consideration “in Ryder’s case” of manslaughter?
    Since the admissions in the C.o.A that the original trial judge was wrong to deny the jury the consideration of manslaughter, (and therefore, misapplied the law) shouldn’t the law at least “take some responsibility” and consider commuting Ryder’s murder sentence to manslaughter?
    Jordan Cunliffe’s case represents different issues, different considerations which may or may not lead you to conclude complete innocence? Whatever your conclusions, omissions of manslaughter considerations again becomes an issue, an issue also incomprehensibly overlooked in other cases such as R v English and Rahman? A black and white view of the world that denies the infinite shades of grey that DO exist. Indeed in English the “fundamental difference rule” can mean the lesser offences go unpunished, as murder or acquittal is all that is considered? Raman’s view of foresight, is in direct conflict with the Woollin test ,Lord Steyn affirmed the test in R v Nedrick:
    “Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case.”
    This view does not support Jordan Cunliffe’s conviction!
    Cunliffe’s conviction stands on foresight alone; that he knew his childhood friends were capable of violence if confronted, allegedly established because he was present with them a week before when an incident involving violence happened in his presence, therefore he knew them to be capable of violence. His presence a week before is strongly denied by some. Whatever the truth, there was no claim from the prosecution that the previous unreported incident amounted to any serious injuries. Should he be liable for murder on the basis that he knew his friends to be capable of violence, yet he failed to disassociate himself from their company a week later when the Garry Newlove incident took place?
    ]In Clayton v The Queen [2006] HCA 58 Kirby J said in a dissenting judgment in the High Court of Australia (at 108):
    “To hold an accused liable for murder merely on the foresight of a possibility is fundamentally unjust. It may not be truly a fictitious or “constructive liability”. But it countenances what is “undoubtedly a lesser form of mens rea”. It is a form that is an exception to the normal requirements of criminal liability. And it introduces a serious disharmony in the law, particularly as that law affects the liability of secondary offenders to conviction for murder upon this basis.”
    [38]Some would argue, in company with Lord Mustill in Powell and English, that where D and P embark on a criminal venture in which P goes further than D wishes, but foreseeably so, D has a measure of culpability for P’s act and V’s resulting death but usually at a lower level than P. When Reid was good law, the difference was accommodated by the possibility of a manslaughter verdict.

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