Joint Enterprise hasn’t been abolished!

The media is full of reports today about the Supreme Court’s decision relating to the principle of Joint Enterprise (R v Jogee [2016]).  Some of the reports, and many of those who have campaigned for a change in the law, imply that it has been abolished.  It hasn’t!

What HAS happened is that one particular aspect of one of the three broad categories of the principle has been changed.  This post is intended to give a brief summary of what has changed from the perspective of an investigator rather than a lawyer.  Hopefully police officers, who will no doubt wait months or years for any formal training update, will find it helpful and accessible.

The full judgment of the Supreme Court, which is written in clear English, is available on the Supreme Court website here.

Categories of Joint Enterprise

Joint Enterprise is a principle which deals with secondary parties to a crime.  It is a very long established principle within the English Common Law and has been expressed in statute since s.8 Accessories and Abettors Act 1861.  As the title of the statute suggests, the principle deals with those who are not the principal offender in a crime but those who help or encourage the principal offender in some way.

The three basic categories of joint enterprise are helpfully set out in A & Others (Joint Enterprise) v The Queen [2010]:

(a) Where two or more defendants agree to commit a single crime with each of them playing a different part (such as where three armed robbers decide to rob a security guard of cash with D1 using a sawn-off shotgun to threaten the guard, D2 grabbing the cash box and D3 waiting in the driving seat of the getaway car, engine running, around the corner) (In this form the defendants could also sometimes be seen as joint principal offenders)

(b) Where D2 provides specific assistance or encouragement to D1 to commit a single crime (such as where D2 provides a gun to D1, knowing that D1 is going to commit an armed robbery, but has no active role in the commission of the robbery itself)

(c) Where D1 and D2 jointly commit a crime (offence 1) and, in the course of it, D1 commits a DIFFERENT crime (offence 2) which D2 had foreseen that D1 may commit (but which there was no actual agreement to commit)

The Chan Wing-Sui Principle

All three categories were largely uncontroversial until the case of Chan Wing-Sui v The Queen [1985].  That case involved a category (c) joint enterprise.  Three men attacked another and, during that attack, one of the suspects produced a knife and fatally stabbed the victim. The case reached the Privy Council (the equivalent of the Supreme Court (then the House of Lords) in terms of seniority) as it arose from Hong Kong for whom the Privy Council was the final Court of Appeal.  The Privy Council decided the case in a way which was an extension of the existing law.  It became known as the Chan Wing-Sui Principle and it is this principle which has created controversy, especially in cases where the different crime committed by D1 was murder where there is a mandatory sentence of murder leaving no scope for lesser sentences for those with less culpability.

In short, and in somewhat simplistic terms, the Chan Wing-Sui Principle decided that if D2 had simply foreseen the possibility that D1 may commit offence 2 (murder) during the commission of the agreed upon offence 1 (assault) then D2 would be guilty of murder  as well as D1.

This created a significant anomaly.  To be guilt of murder an assailant (such as D1) would need to be shown to have either intended to kill the victim or, at very least, to have intended to cause them serious bodily harm.  When the Chan Wing-Sui Principle was applied, however, D2 would be found guilty of murder on the basis of (Category (c)) Joint Enterprise when they had no such intention at all – they  had no intention to kill the victim, no intention to cause serious bodily harm, no agreement to carry out a fatal attack on victim, just a foresight that D1 may commit murder.

Today’s decision that the Principle was “a wrong turn”

Although the Principle was challenged several times over the years, the Courts upheld it.  Today, however, having taken a far more in-depth look at how it arose, the Supreme Court have decided that the Principle is wrong and that the law took “a wrong turn” in 1985.  They have effectively turned the clock back so the law is again how it was before the case of Chan Wing-Sui v The Queen.

The first two categories of Joint Enterprise ((a) and (b) above) were entirely unaffected by the Chan Wing-Sui Principle and are similarly unaffected by today’s decision.  Category (c) Joint Enterprise, where there is an agreement between D1 and D2 to commit one crime (offence 1) and during the course of that D1 commits a DIFFERENT offence (offence 2), still exists, but it has been restricted.  D2 will only now be guilty of offence 2 on the basis of joint enterprise if it can be shown that they have the requisite intent for offence 2 (so, in the case of murder, that they have the intent to kill or cause serious bodily harm to the victim).  Simple foresight by D2 that D1 may commit offence 2 will no longer be sufficient.

(Note that although I have used examples in which there is some prior agreement between D1 and D2 the principles apply just the same in relation to spontaneous incidents such as where friends of a person who gets involved in a fight decide to join in to assist them.)

Impact on previously decided cases where the Principle was applied

In many cases where there have been murder convictions for the secondary offender (D2) the (now) correct finding will be one of manslaughter.  And in all cases they will still be guilty of the original offence (offence 1, often an assault of a lesser degree) that they agreed to commit with D1 and in many, if not most, murder cases that will mean they are guilty of unlawful act manslaughter.

In relation to Appeals by those convicted, there is a principle of law that where cases were properly decided on the basis of the law as it was, there is no automatic right of appeal if the law changes – they must seek exceptional leave to appeal from the Court of Appeal.  The Supreme Court have emphasised this in their judgement today and suggested that in many cases the correct course of action may be to quash the murder conviction and substitute a manslaughter conviction with an appropriate sentence (which, of course, may still be  Life imprisonment in serious cases).

What does this mean for the police and investigators?

The decision in R v Jogee [2016] has little if any impact on policing and investigation: all those involved around the periphery of a serious crime such as murder are liable to be arrested on suspicion of committing the offence (as either principal or secondary offenders) and there will be a thorough investigation to secure evidence to establish the facts.  The interviewing of all concerned will be of more importance, however.

What each person involved in the incident knew, believed or intended will be of absolutely crucial importance in deciding on their culpability and guilt and so even more care than usual should be taken to secure significant statements and silences in accordance with PACE Code C requirements and in the planning and conduct of investigative interviews using the PEACE model.  Detectives involved in serious crime cases should DEFINITELY go and read the full judgment, especially paragraphs 85 – 99 in which the Supreme Court restate the pre-1985 principles which now apply again.

But, other than that, joint enterprise is still there to be used to prosecute those who assist and encourage principal offenders, pretty much as it always has been and as it was until 1985!

And whilst significant numbers of secondary offenders convicted using the principle may have their convictions overturned, there will be no flood of violent individuals released back on to the street without a stain on their character – many will have manslaughter convictions substituted and many more will be sent for a re-trial for a jury to decide.  I suspect relatively few will find themselves entirely acquitted!



2 thoughts on “Joint Enterprise hasn’t been abolished!

  1. Thank you for a clear statement on this subject. Do you think the Supreme Court has achieved its stated aim of ensuring that it will no longer be easier to convict secondary participants than to convict principals?

    • I think it undoubtedly has improved the law and reined in the excesses of the principle. I’m not sure it was ever “easier” to convict the secondary participants than the principals and so I can’t really comment on that.

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