Wednesday, 9 July 2014

Joint Enterprise (3) - Concerns are widespread

The problematic aspect of criminal law commonly referred to as "Joint Enterprise" has been in the news recently as a result of a televised drama by Jimmy McGovern - COMMON.

Please look at the previous posts on this topic - 4th April 2014 - Joint Enterprise (1) - Setting the scene and 25th April 2014 - Joint Enterprise (2) - Involvement in Crime.

Joint enterprise (parasitic accessory liability) cases:

The form of criminal liability with which we are concerned here arises where X and Y engage in Crime A (e.g. robbery at a garage) and where X commits offence B (murder of the cashier).  Under what circumstances would Y be also liable for that murder.

The kernel of the law, as it currently stands, is that Y may find himself liable where he foresees the possibility that X may commit offence B. The law appears to be:

1. X and Y jointly embark on the commission of crime A

2. Y foresees that, in the course of the joint commission of crime A, X might commit crime B (with the requisite mens rea for that offence).

3. X commits crime B

4. The commission of crime B occurs as an incident of the joint activity and not in a manner fundamentally different from the possibility forseen by Y.

All of these elements are examined in considerable detail in the textbooks and 1 to 4 are necessarily very brief statements.  Further authorities deal with withdrawal from joint enterprise which, to be effective, must be timely and unequivocal.

On Youtube, Professor Graham Virgo (Cambridge University) offers an explanation of Joint Enterprise law - (28 minutes).

Other materials:

Some background to Joint Enterprise may be read at The Guardian 1st April 2014  and at BBC 7th July 2014

A post on The Justice Gap blog - Journalism can be the driving force in injustice is also of interest. See also Justice Gap - John Robbins - Joint Enterprise: confusing juries and courts.

See also Maeve McClenaghan and others - Our Kingdom 1st April 2014 - Serious concerns emerge over joint enterprise laws.   The article notes that joint enterprise provides a 'rough, ready, powerful solution' to crime committed by gangs but it is frequently a most unjust solution in particular cases.

Justice Committee:

Joint enterprise has concerned some politicians.  The Justice Committee reported in early 2012 and the committee is now following up on their earlier report.  The 2012 report made six important recommendations including No. 4 -

'The lack of clarity over the common law doctrine on joint enterprise is unacceptable for such an important aspect of the criminal law. We therefore recommend that it be enshrined in legislation. We do not make this recommendation lightly. We fully appreciate the pressures on the parliamentary timetable but the evidence we have heard on joint enterprise has convinced us that legislative reform is required.'

In a response to the 2012 report, Kenneth Clarke (the Secretary of State for Justice and Lord Chancellor) dismissed the possibility of legislative reform in this Parliament by saying - "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."

(Update) - In late 2014, the Justice Committee issued a follow up report to their 2012 report and called upon the Law Commission to review the law.

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