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Discussion on recent law of Joint Enterprise...

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JOINT ENTERPRISE This essay will address the law relating to Parasitic Accessorial Liability (PAL) and how fairerit is now in joint enterprise cases after the judgment of Jogee1. A joint enterprise is where two or more parties agree either tacitly or expressly upon the commission of a criminal offence with a common purpose (affiliated, not just aiding or abetting, etc). Agreement can be spurring of the moment and does not need to be communicated. Where there is no common purpose, there are no joint enterprise and each will be liable for their own separate acts (Petters and Parfitt)2. In joint enterprise the person who commits a crime is called the principal (P), and who assists P in the commission of the crime is called the secondary participant (D). Under S8 Accessories and Abettors Act3, D can be liable for aiding, abetting, counselling, or procuring the offence committed by P. The doctrine of Parasitic Accessorial Liability statesthat D will be liable for any other crime P commits in course of their shared common purpose with the provision D foresaw P might and P does not confer it in a general distinctive way4.From sixteenth century, parasitic accessorial liability existed in some form5.The doctrine of Parasitic Accessorial Liability was first found in the Case of Anderson 6. In this case, D1 and D2 agreed to look for their Victim (V) in a flat with the intent to frighten him. However, D1 was carrying a knife which D2 was not aware of and subsequently D1 stabbed the victim to death. Lord Parker in this judgment stated that “Where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but...if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his coadventurer is not liable for the consequences of that unauthorised act...It is for the jury to decide whether what was done was part of the joint enterprise, or went beyond it ...” 7. In Chan Wing-Siu8, three defendants went to confer a burglary armed with knives and one of them guarded the victim's wife while the others at that point killed the victim. Every one of the three respondents was convicted for murder. Held: all parties are liable for acts done which were not really proposed, but rather were foreseen as a genuine risk. Chan Wing-Siu 9 was not an inconsistency, but rather just affirmation that parasitic accessorial liability's points of confinement had limited by the last 50% of the twentieth century to require "subjective" thought of Crime B. Chan Wing-Siu 10 was fundamentally more rationally reasonable regarding the veritable position of secondary parties in respect to Offense B than past cases had been. The House of Lords' later judgement in Powell and English11 was considerably more so and held the accessory should likewise know about the fundamental issues which constitute the offense, i.e. he should know about, or anticipate as a genuine probability that the principal may confer the offense. The defendant won't be guilty where 1[2016] UKSC 8. 2[1995]Crim LR 501. 3Accessories and Abettors Act 1861 s.8. 4Simon Parsons, 'Criminal Liability for the Act of Another: Accessorial Liability and the Doctrine of Joint Enterprise' (1998) 62 The Journal of Criminal Law, p.353. 5 A Smith, 'A Modern Treatise on the Law Of Criminal Complicity.'(1992) 51 The Cambridge Law Journal, p.210. 6[1966] 2 QB 110. 7Ibid 6 118 (Lord Parker CJ). 8 [1985] AC 168. 9 Ibid 8. 10Ibid 8. 11[1999] 1 AC 1.

JOINT ENTERPRISE the act committed is of essentially different nature to that predicted by D; that is, whether (i) P abruptly produces and utilizes a weapon of which D knows nothing and which is more deadly than any weapon which D ponders that P or some other member might convey and (ii) thus P's demonstration is to be viewed as generally not quite the same as anything anticipated by D (Rahman)12. The present law of parasitic accessorial liability is no uncertainty punctuated by a progression of issues on both doctrinal and reasonable levels13. The imperative connection amongst D2 and the coincidental wrongdoing conferred by D1 has been somewhat lamentably and definitely extended from that of unsaid acknowledgment to that of predictability14. Academics and legal practitioners alike have either perceived this change or by and by encountered its effects in the administration of the law. In spite of the fact that at first sight, their individual points of view on the issue appear to vary, it merits distinguishing a common worry that clarifies itself in the midst of the verbal confrontations15. Afterwards in Jogee16, the Supreme Court stated that the judgement in Chan Wing Siu by the Privy Council was a wrong movebecause of allowing foresight of the crime committed by the P to be sufficient mens rea in itself for the liability of the accessory (D) for that offence and hence it can be said that Powell and English17 was also wrongly decided. After the judgement of Jogee, the so-called parasitic accessory approach to liability is no longer to be applied in English Law. Jogee was hence not insignificant common law housekeeping. It is noteworthy and substantive change of the law. This option perspective of legitimate history brings up once again issues about the established furthest reaches of legal change of the criminal law, i.e. "judicial activism". The case of Jogee makes it clear that the same principles govern every form of secondary liability. The Supreme Court in Jogee was influenced to roll out this critical change of law for various reasons18. As an issue of policy the Court was not fulfilled that the harsher regime over the last thirty years had filled in as an obstacle19. As an issue of guideline, it wasn't right to treat the D's foresight of what the P may do as much else besides prove from which jury could deduce the nearness of arequisite intention20. The Privy Council had been off-base to adopt D's prescience of P's presumable offenses as an adequate mens rea for D 21. It isn't right; the Court finishes up, while guiding a jury to compare D's foresight with an aim on his part to help P 22. As an issue of law, the right approach is to treat D's foresight of P's possible direct as confirmation of D's intention 23. In addition, as an issue of practice, the law was proceeding to make trouble for trial judges and to allow appeals 24. 12 [2008] 3 WLR 264. 13 Jonathan Lee, ‘Reforming Parasitic Accessory Liability In English Law.’ (2016) 1 The King’s Student Law Review, p.60. 14Ibid 8. 15G.J. Virgo, “Joint Enterprise is Dead: Long Live Accessorial Liability” [2012] Crim. L.R. 850, 855-856. 16[2016] UKSC 8. 17Ibid 11. 18Stephen Knight, 'Joint Enterprise in The Wake of the Jogee Verdict' [2017] Socialist Lawyer, p.8. 19 ‘Murder Law Misinterpreted For 30 Years' (BBC News, 2017) accessed 14 December 2017. 20Simon Parsons, 'Joint Enterprise Murder' (2016) 80 The Journal of Criminal Law, p.173. 21Ibid 20, p.174. 22Ibid 20, p.174. 23Ibid 20, p.175. 24W. Wilson and D. Ormerod, “Simply harsh to fairly simple: joint enterprise reform” [2015] Crim. L.R. 3,p.5-6.

JOINT ENTERPRISE In Jogee25, the Supreme Court has inferred that: (1) somebody can be liable of murder as a secondary offender where he intended that P execute or do GBH with intention; (2) intention isn't restricted to reason or desire; and (3) a jury may derive that D planned in the event that they presume that D foresaw P's intentional lead; however (4) there is no unequivocal statement of any edge confining on the foresight – will D’s foresight of even the slightest possibility of P acting be sufficient for a jury to find that D intended? Juries carry more noteworthy concern as they are the one to distinguish murder and manslaughter 26. The judgement of Jogee will give the judge more discretion to guide the jury as now they have more elbow room to decide27. Another issue that emerges from the judgment of Jogee is the thing that to do about those individuals who were sentenced under the old law 28. The Supreme Court states in vehement terms that it doesn't take after from that an individual was sentenced under the old law that his conviction will now be suppressed29. The Court brings up, when a conviction depends on the law as it connected at the time; the main choice accessible to the respondent is to apply to the Court of Appeal for leave to appeal30. In conclusion, the so-called “parasitic accessory” approach to liability is no longer to be applied in English law making it fairer. There is no longer any separate category of parasitic accessory/joint enterprise liability. D, a secondary party, who aids, abets, counsels or procures P, the principal, to commit an offence or offences is liable as a secondary party to the offence(s) once committed. It can be argued that the defendants who were charged with the old law didn’t receive fair trial for the ends of justice but on the other side it is notable that the judgement in Jogee is making a landmark precedent for the future cases that justice should prevail. Word Count - 1368

Bibliography Cases

25[2016] UKSC 8. 26Mark Coen and Jonathan Doak, 'Embedding Explained Jury Verdicts In The English Criminal Trial' (2017) 37 Legal Studies, p.786. 27Damian Warburton, 'Supreme Court and Judicial Committee of the Privy Council Secondary Participation in Crime' (2016) 80 The Journal of Criminal Law, p.160-65. 28'Joint Enterprise: Rectifying Law or Opening Floodgates? - Becket Chambers' (Becket Chambers, 2017) accessed 15 December 2017. 29Ibid 25. 30Ibid 25.

JOINT ENTERPRISE      

R v Anderson [1966] 2 QB 110. R v Chan Wing Siu [1985] AC 168. R v Jogee [2016] UKSC8. R v Petters and Parfitt [1995] Crim LR 501. R v Powell and English [1999] 1 AC 1. R v Rahman [2008] 3 WLR 264.

Statute 

Accessories and Abettors Act 1861.

Journals       

Coen M and Doak J, 'Embedding Explained Jury Verdicts In The English Criminal Trial' (2017) 37 Legal Studies. Lee J, ‘Reforming Parasitic Accessory Liability In English Law.’ (2016) 1 The King’s Student Law Review. Parsons S, 'Criminal Liability For The Act Of Another: Accessorial Liability And The Doctrine Of Joint Enterprise' (1998) 62 The Journal of Criminal Law. Parsons S, 'Joint Enterprise Murder' (2016) 80 The Journal of Criminal Law. Smith A, 'A Modern Treatise On The Law Of Criminal Complicity.' (1992) 51 The Cambridge Law Journal. Stephen Knight, 'Joint Enterprise In The Wake Of The Jogee Verdict' [2017] Socialist Lawyer. Warburton D, 'Supreme Court And Judicial Committee Of The Privy Council Secondary Participation In Crime' (2016) 80 The Journal of Criminal Law.

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'Joint Enterprise: Rectifying Law Or Opening Floodgates? - Becket Chambers' (Becket Chambers, 2017) accessed 15 December 2017 'Murder Law Misinterpreted For 30 Years' ( BBC News, 2017) accessed 14 December 2017...