Joint Enterprise (1) or Parasitic Accessory Liabilty ~ Setting the scene

Individuals can participate in crime in various ways and the criminal law recognises this by enabling the conviction of not only principal offenders - (that is, those who actually commit the prohibited act with any necessary mental element or mens rea) - but also those who, in various ways, lend their support.  One of the most controversial aspects of participation in crime is what has come to be referred to as Joint Enterprise or "Parasitic Accessory Liability."

The terminology:

Joint enterprise as an everyday phrase would be capable of embracing any criminal activity in which two or more persons act together such as where X and Y carry out a pre-arranged criminal activity such as robbery at a garage or where X carries out robberies at various dwelling houses on an estate whilst Y acts as driver and look-out.

Particular legal difficulties have resulted from situations where X and Y embark on an offence (call it Crime A such as robbery at the garage) but X goes beyond mere robbery and commits Crime B such as killing the cashier at the garage.  Under what circumstances should Y also be liable for the killing?

The law relating to such situations law has proved to be (a) confusing and difficult to state clearly, (b) arguably too uncertain to meet Article 7 standards, and (c) capable of producing severe injustice particularly when combined with the mandatory life sentence for murder.

Though it is a controversial point, the law may have taken an incorrect turning with the decision of the Judicial Committee of the Privy Council in Chan Wing-Siu (1984)  and the change of approach became locked into English law by the House of Lords decision in R v Powell and English.

The term "Joint Enterprise" could usefully be confined to cases such as this garage example of X and Y and it is on this, that our focus lies.  I will therefore, for present purposes, use the term joint enterprise in this limited sense.  Making Y criminally liable for the killing is sometimes described as "parasitic accessory liability".   The terminology is discussed in the case of A,B,C,D v The Queen [2010] EWCA Crim 1622 at paras. 9 to 11.  In that case, Hughes LJ described this form of liability as:

"Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a second crime (crime B) which D2 had foreseen he might commit."

As Francis Fitzgibbon QC's points out - The Trouble with Joint Enterprise - The meaning and application of joint enterprise (as used in our limited sense) in murder cases has occupied the country’s most senior judges in the House of Lords/Supreme Court and the Court of Appeal (Criminal Division) with worrying regularity over the last 20 years, and each time the Court has given subtle but important variations to its statements of what the law is. (For reference, the leading cases are R. v Powell and English (1997) House of Lords; R. v Rahman (2009) House of Lords; Yemoh (2009) Court of Appeal; Mendez (2010), Court of Appeal;  R. v A (2010), Court of Appeal).

Statistics:

The Guardian 1st April 2014, drew attention to statistics obtained by the Bureau of Investigative Journalism.  The statistics may be seen at Joint Enterprise in numbers. The Bureau found:

• Between 2005 and 2013, 1,853 people were prosecuted by the CPS for homicides that involved four or more defendants. This is the closest approximation that can be made to the use of joint enterprise. Most academics agree these prosecutions almost certainly relied on the joint enterprise doctrine.

• In the same eight years 4,590 people were prosecuted for homicides involving two or more defendants – a definition the CPS suggests is a clear indication of the use of joint enterprise.

CPS - Joint Enterprise Charging Decisions - December 2012

It tends to be homicide cases that come to greater public notice and joint enterprise frequently plays a part in such cases.  It is also far from uncommon for joint enterprise cases to arise from events involving numbers of young people (loosely referred to as "gangs").  There are certainly some instances where convictions for murder have been obtained against individuals whose degree of participation in the offending can be said to be quite minimal or peripheral.

Joint enterprise is NOT confined to homicide cases and could, in principle, be applied to other types of offending (e.g. theft or public order offences etc). 

Joint enterprise is frequently defended as a necessary tool in the criminal law's armoury to deal with "gangs".  In a response to a Parliamentary Report on Joint Enterprise, Kenneth Clarke (then Secretary of State for Justice and Lord Chancellor) said - "I am keen to avoid consulting on measures that could weaken the law in this area or undermine the Government's efforts to tackle crimes committed by gangs."  Clarke shelved any possibility of reform for the duration of the present Parliament.  

The campaign  group JENGBA (Joint Enterprise Not Guilt by Association) seeks changes to the substantive law. I am not connected to JENGBA but, as we shall see, they have a strong case for reform.  The following short video is worth watching:

Joint Enterprise and Jordan Cunliffe

Newlove killers jailed for life - BBC News 11th February 2008