Friday 19 November 2010

Joint enterprise law means even bystanders can get life

Even bystanders can find themselves convicted of murder under a legal doctrine known as “joint enterprise”. The centuries-old principle enables gang members to be prosecuted for a murder even when there is no evidence as to who inflicted the fatal blow.
It was famously used in 1952 to convict Derek Bentley of the shooting of a police officer: his words, “let him have it”, were taken as evidence that he was a party to the killing. The murder was committed by his accomplice, Christopher Craig, but because Craig was then only 16, he escaped the death penalty. Bentley was hanged for the crime.
More recently, Tyrone Clarke, 16, was beaten and stabbed to death by a mob of up to 30 youths in Leeds in 2004. Four men were convicted, although none may have struck the fatal blow.
Joint enterprise allows police to prosecute someone if that person knew that an associate might kill or inflict serious harm, which means killers cannot hide their identity within a group.
There are concerns that people on the fringes of gang violence could find themselves facing life as a result of the doctrine when they just happened to be present at a murder.
In the trial of Samantha Joseph, however, the court was told that the death of Shakilus Townsend was pre-planned. There is no question that she was far from an innocent bystander.

The doctrine of common purpose, common design or joint enterprise is a legal doctrine in some common law jurisdictions which imputes criminal liability on the participants to a criminal enterprise for all that results from that enterprise. A common incidence of the application of the rule is to impute criminal liability for assaulting a person with a knife, on all the participants to a riot who knew, or were reckless as to knowing, that one of their number had a knife and might use it. Even when the imputed participants did not actually have knives themselves.

In English law, the doctrine derives from R v Swindall and Osborne (1846) 2 Car. & K. 230 where two cart drivers engaged in a race. One of them ran down and killed a pedestrian. It was not known which one had driven the fatal cart, but since both were equally encouraging the other in the race, it was irrelevant which of them had actually struck the man, and they were held jointly liable. Thus, the parties must share a common purpose and make it clear to each other by their actions that they are acting on their common intention so that each member of the group assumes responsibility for the actions of other members in that group. When this happens, all that flows from the execution of the plan will make them all liable. This is a question of causation in that oblique intention will beimputed for intermediate consequences that are a necessary precondition to achieving the ultimate purpose, and liability will follow where there are accidental and unforeseen departures from the plan so long as there is no novus actus interveniens to break the chain. In cases where there is violence beyond the level anticipated, the prosecution must prove:
(a) an act done by D which in fact assisted the later commission of the offence,
(b) that D did the act deliberately realising that it was capable of assisting the offence,
(c) that D at the time of doing the act contemplated the commission of the offence by A i.e. he foresaw it as a "real or substantial risk" or "real possibility," and
(d) that D when doing the act intended to assist A in what he was doing.
If there is doubt as to whether all the participants are contributing equally, those defendants whose contribution is less may be charged as accessories rather than as joint principals.

Deliberate departure

Where one of the participants deliberately departs from the common purpose by doing something that was not authorised or agreed upon, they alone are liable for the consequences. In the situation exemplified in Davies v DPP (1954) AC 378 a group comes together for a fight or to commit a crime and either they know or do not know that one of their team has a weapon. If they know that there is a weapon, it is foreseeable that it might be used and the fact that the other participants do not instruct the one carrying to leave it behind, means that its use must be within the scope of their intention. But if they do not know of the weapon, this is a deliberate departure from the common purpose and this breaks the enterprise.

When the outcome is death

The simplest form of joint enterprise to murder, is when two or more plan to cause death and do so. If all the parties participated in carrying out the plan, all are liable regardless who actually inflicted the fatal injury. But when there is no plan to murder and one party kills while carrying out a plan to do something else, e.g. a planned robbery in which the participants hope to be able to get what they want without killing anyone, but one of them does in fact kill, the other participants may still be guilty of murder or manslaughterprovided that they had the necessary mens rea. In R v Lovesey and Peterson (1969) 53 Cr.App. R. 461 a gang was executing a plan to overpower a jeweller and steal his more valuable stock. After the robbery, the jeweller was found dead. All were properly convicted because the death was the outcome of the agreed use of violence. That this accidentally caused the jewller's death did not prevent liability. The usual case will involve plans to commit criminal damageburglaryrape or some other crime and there will be no compelling inference that there must also have been a plan to kill. For the participants to be convicted of murder, the question becomes one of foresight that one of them might kill. In R v Powell (Anthony) and English (1999) 1 AC 1 the Lords said that the other participants must have realised that, in the course of the joint enterprise, the primary party might kill with intent to do so or with intent to cause grievous bodily harm, i.e. with the intent necessary for murder. Thus the Powell and English doctrine extends joint enterprise liability from the paradigm case of a plan to murder to the case of a plan to commit another offence in the course of which the possibility of a murder is foreseen (see R v Bryce (2004) [1]). In Attorney-General's Reference (No. 3 of 2004) (2005) EWCA Crim 1882 the defendant, H, was charged with manslaughter. H had sent K and C to terrify R, knowing both that K and C would have a loaded firearm with them, and that this firearm might be fired near R to increase his fear. The Court of Appeal held that H's liability depended on the scope of the joint enterprise. On the assumed facts, there was no evidence that H foresaw that the gun would be fired and R might be injured. Rather, K's intentional act of firing the gun so as to kill or cause R grievous bodily harm was fundamentally different from the acts contemplated by H. The outcome would have been different if there had been a common design to cause some harm to R. In such a case, H would be liable for manslaughter because, albeit to frighten, he had authorised the firing of the gun, i.e. he would have realised that K might intentionally cause some harm when he fired the gun. But on the assumed facts, H did not foresee the possibility of any harm to R let alone intentional harm so was properly acquitted.


One person who has been an active member of the common purpose may escape liability by withdrawing before the other(s) go on to commit the crime. Mere repentance without any action, however, leaves the party liable. To be effective, the withdrawing party must actively seek to prevent the others from relying on what has been done. In R v Becerra (1975) 62 Crim. App. R. 212 it was held that any communication of withdrawal by the secondary party to the perpetrator must be such as to serve "unequivocal notice" upon the other party to the common purpose that, if he proceeds upon it, he does so without the further aid and assistance of the withdrawing party. According to Smith and Hogan, Criminal Law:
  • If an accomplice only advised or encouraged the principal to commit the crime, he must at least communicate his withdrawal to the other parties.
  • Where an accomplice has supplied the principal with the means of committing the crime, the accomplice must arguably neutralise, or at least take all reasonable steps to neutralise, the aid he has given.
  • In more serious cases, it may be that the only effective withdrawal is either physical intervention or calling in the police.
In R v Rook (1997) Cr. App. R. 327 the court held that, as in the case of joint enterprise where both parties are present at the scene of the crime, it is not necessary for the prosecution to show that a secondary party who lends assistance or encouragement before the commission of the crime intended the victim to be killed, or to suffer serious injury, provided it was proved that he foresaw the event as a real or substantial risk and nonetheless lent his assistance. Rook was convicted as one of a gang of three men who met and agreed the details of a contract killing to kill the wife of a fourth man on the next day. Rook did not turn up next day and the killing was done by his two fellows. His defence was that he never intended the victim to be killed and believed that, if he failed to appear, the others would not go through with the plan. Lloyd LJ. described the evidence against him in this way:
So the position, on his own evidence, was that he took a leading part in the planning of the murder. He foresaw that the murder would, or at least might, take place. For a time he stalled the others. But he did nothing to stop them, and apart from his absence on the Thursday, he did nothing to indicate to them that he had changed his mind.
This did not amount to an unequivocal communication of his withdrawal from the scheme contemplated at the time he gave his assistance.


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