Quiz 5 4 April 2017, questions PDF

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TABLE OF CONTENT No.

Content

Page

1.0

Introduction

1-2

2.0

Past Law of Joint Enterprise Liability

2-4

2.1

Liability for unforeseen consequences of executing the joint enterprise

2.2

Liability for accidental deviations in the execution of the joint enterprise

2.3

Liability for deliberate deviations in the execution of joint enterprise

2.4

Fundamentally different rule

3.0

Present Law of Joint Enterprise Liability

5-6

4.0

Criticism on Joint Enterprise Liability

7-9

5.0

Reform

10-11

6.0

Conclusion

12

7.0

Bibliography

13-14

8.0

Table of Cases

15

9.0

Table of Statute

16

1.0 Introduction Joint enterprise is defined as a doctrine of criminal law which involved more than one defendant that had been declared guilty in the same criminal offence in relation to the similar case regardless of whether defendants had same or different levels or types of involvement in the incident.1 People who directly commit the actus reus of the offence is commonly known as perpetrator or principal offender.2 The person who help the principal offender in the commission of the offence and criminally liable is known as accomplices, accessories or secondary parties.3 For a very long time, joint enterprise has been established and become a popular argumentative topic of the criminal law. In 2004, research shows that between 2005 and 2013 more than 1853 people were prosecuted under joint enterprise with about 17.7% of these were murder cases.4 In United Kingdom (UK), joint enterprise is a 300-years-old doctrine originally introduced to charge people involved in duelling.5 The law of joint enterprise have been arisen in three different circumstances. The first situation is when two parties in the meantime going to carry out same crime. Both parties are liable as principal offenders. The second situation is accessory will be liable if there is one of the particular offence present such as aiding, abetting, counselling or procuring which stated in section 8 of the Accessories and Abettors Act 18616. The third situation is more controversy where the person will be liable as

1

J Jacobson, A Kirby, G Hunter, Joint Enterprise: Righting a Wrong Turn? (2016) LS 8.

2

CMW Clarkson, HM Keating and SR Cunningham, Clarkson and Keating Criminal Law (Sweet & Maxwell,

London, 2007) 546. 3

Ibid, 547.

4

Available at https://www.thebureauinvestigates.com/projects/joint-enterprise accessed 18 December 2017.

5

F Gerr, Joit Eterprise Murder [5] 79 LS accessed 12 December 2017. 6

Accessories and Abettors Act 1861, s8.

1

accessory provided they foresaw the murder being committed even there is no involvement in the actus reus and assist or encourage the murder. The doctrine of joint enterprise has become a popular discussion among the public over the years. This is because there is lack of certainty to the doctrine of joint enterprise. Hence, suggestion of reform should be made to ensure public confidence. 2.0 Past Law of Joint Enterprise Liability Joint enterprise liability arises when one of the offender (D1) commit a crime that is not known by the other offender (D2). Although D2 does not commit and agree with the offence carried by D1, D2 is still liable as resulted from execution of joint enterprise. If there is deviation by D1 is deliberate, D2 is liable if contemplated exist which known as joint enterprise liability. By continuing with common purpose after knowing D1 might perpetrate the other crime, D2 is liable as the are sho to hae support o Ds offee. The principle of doctrine governing the liability for joint enterprise covers four separate cases. 2.1 Liability for unforeseen consequences of executing the joint enterprise The principle for unforeseen consequences of executing the joint enterprise is where the secondary party will be still liable even though principal commit the offence beyond what was agreed except there is out of contemplation.7 Both offenders have the common purpose but an unexpected scenario occurred from the execution of joint enterprise. As mentioned in the previous case of R v Chan Wing-siu8, the burden of proof is on prosecution to prove he had foreseen the death or grievous bodily harm would probably occur from the joint enterprise if the contingency in which a weapon might be used by one of his companies eventuated. However, Sir Robin Cooke stated that a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend. [This priiple] turs o oteplatio.9 In R v Powell and 7

M E Badar, The Concept of Mens Rea in International Criminal Law (Hart Publishing Ltd, Oxford 2013) 197.

8

Chan Wing-Siu v The Queen [1985] AC 168.

9

N Jain, Perpetrators and Accessories in International Criminal Law ( Hart Publishing LTD, Oxford 2014) 158.

2

Daniels10, House of Lords ruled that secondary party could be found guilty of offences he foresaw or contemplated but not necessarily intend. This is known as parasitic accessory liability. Thus, the secondary party would be guilty as an accessory to that offence which is beyond the expected crime if he foresaw the possibility of the principal might commit on.

2.2 Liability for accidental deviations in the execution of the joint enterprise The principle for accidental deviation is where the perpetrator accidentally deviates in the execution of the joint enterprise. In R v Baldessare11, Lord Hewart CJ stated that both defendants were responsible for the way in which the car was being driven at the moment of collision.12 Hence, the secondary party is liable under the execution of joint enterprise because there is a common purpose to engage into a particularly dangerous instance of it. Both of the offenders were liable in this case. This can be further reiterated in the case of R v Gnango13 where the Supreme Court decided that both offenders were guilty of murder irrespective of who fired the gun. Whoever had killed the passed-by was guilty of murder on the principle of transferred malice. Thus, the defendant is charged as an accessory although he is not the one who shot the deceased. 2.3 Liability for deliberate deviations in the execution of joint enterprise There are both evidential and moral reasons which cause the doctrine of joint enterprise become strain. If the principal commit the crime beyond what had agreed in execution of joint enterprise, it is easy for accessory to claim that he did not foresaw the crime and prosecution difficult to disprove accessory liability. The moral reasons are that active participation in potentially dangerous criminal ventures with others is the reason in itself to hold participants accountable when the dangers materialise. Therefore, it is difficult for the 10

R v Powell and Daniels [1999] 3 WLR 959.

11

R v Baldessare (1930) 22 Cr App R 70.

12

Available at https://quizlet.com/218752414/accomplice-liability-cases-and-statute-flash-cards/ accessed on

21December 2017. 13

R v Gnango [2011] UKSC 59.

3

court to ensure the derivative liability of the accomplice. Experience has shown that joint criminal enterprises too often escalate into commission of greater offences only. In order to deal with this important social problem, the accessory principle is needed and cannot be abolished. In the case of Davies v DPP14, the court held that the defendant is liable even he did not foresee the crime. In this case, Lord Siods defied aoplie as partiipes riiis i respet of the atual rie harged.15 Hence, whoever participated in a crime will be liable even though there is no actus reus. This can be further reiterated in the case of R v Anderson and Morris16 where the Court of Appeal held that when two persons commit an offence, each of the offender is criminally liable for the act that have done including unusual consequences from the execution the agreed joint enterprise. Hence, the secondary party will be liable for deliberate deviation when principal and accessory embarked upon the commission of an agreed crime. Besides, accessory contemplated that the principal might commit a crime beyond what had agreed. Furthermore, the crime committed did not differ substantially from that contemplated. 2.4 Fundamentally different rule If secondary party procures principal offender to kill the victim using specific method, the accessory will still be liable even principal used other method to caused the victim dead. This is because the act by principal is what the secondary expected. However, it would be different if the principal deliberately or knowingly caused someone dead other than the expected victim as per the case of Rex v Saunders and Archer17. The same rule governs joint eterprise liailit, eept here the ourts hae used the phrase fudaetall rather tha sustatiall to desrie the degree of ariatio eessar to lok the aessors liailit. Hence, the principal offender does not affect liability of secondary party unless there is a big change in the circumstances.

14

Davies v Director of Public Prosecution [1954] AC 378.

15

Available at http://swarb.co.uk/davies-v-director-of-public-prosecutions-hl-1954/ on 22 December 2017.

16

R v Anderson and Morris [1966] 2 QB 110.

17

Rex v Saunders and Archer (1073) ER 706.

4

3.0 Present Law of Joint Enterprise Liability On 18 February 2016, the court gave its unanimous judgment that foresight alone was not sufficient, thereby overturning the Chan Wing-Siu principle and returning the requisite mental element of a secondary party to the position pre-1985.18 In recent UK Supreme Court, the case of R v Jogee19 has found that the principle established in Chan Wing-siu v The Queen20 was wrong. In the previous case, the court ruled that intention to commit the crime is not a necessary mental element. If accomplices are found that he might foresee the crime, he may be liable as an accessory. Hence, intention may be an evidence of foresight. This clearly seen that the mental element required is the intention to assist or encourage the commission of offence and the intention that the offence be committed. In the case of Davies v Director of Public Prosecution21, the discussion on oteplatio of ats of the o-defendant was spoken in the context of considering the need for an accomplice warning. Jogee's mother, Rachel Whitehead had defined that joint enterprise as "a lazy law". The reason of Rachel saying so is this law only convict the innocent people of crimes that they did not commit.22 Moreover, it is found that there is new principle being set in the case of Chan Wing-siu. The Privy Council has wrongly interpreted the liability on the principle of joint enterprise and have made a wrong conclusion. Thus, foresight by itself is not sufficient in the correct law on accessory liability. However, this should be a question for jury to decide based on the circumstances. In the context of violent attack, if two of the defendants commit a crime, both of them would be found guilty in the past if the jury rely on the principle which foresaw is an evidence of intention. However, the defendant would not be found guilty of murder but

18

Available at http://www.onc.hk/en_US/the-uk-supreme-court-the-law-of-accessory-liability-has-taken-a-

wrong-turn/?print=print accessed on 23 December 2017. 19

R v Jogee [2016] UKSC 8.

20

Chan Wing-Siu v The Queen [1985] AC 168.

21

Davies v Director of Public Prosecution [1954] AC 378.

22

https://www.legalcheek.com/lc-journal-posts/r-v-jogee-a-supreme-court-betrayal/

5

guilty of manslaughter if the defendant has no intent to assist to cause the death of the victim but foresaw the crime. Last but not least, in the recent case as per R v Jogee23 and Ruddock v The Queen (Jamaica)24, there should be allowed to appeal. Even though Jogee seemed not guilty on murder but he should be charged at least for guilty of manslaughter.

23

R v Jogee [2016] UKSC 8.

24

Ruddock v The Queen (Jamaica) [2016] UKPC 7.

6

4.0 Criticisms on Joint Enterprise Liability Joint enterprise is an aspect of the criminal law of England and Wales that is complicated, confusing, and subject to multiple and often conflicting interpretations.25 There are several criticisms in the past and present law of joint enterprise liability. Some criticisms in the past law of joint enterprise liability have been reform in the recent years. However, there seemed to have criticism on the present law of joint enterprise liability. These criticisms have to take into account to ensure the justice in this doctrine of joint enterprise. Firstly, in the past law there is lack of clarity in liability for unforeseen consequences in executing of the joint enterprise. It is unclear who is the most responsible in the offence between secondary party and principal as it is self evident. In the previous case, it was held that secondary party is liable for the offence beyond what was agreed when he foresaw the crime which the principal offender might be committed. In the previous case such as Chan Wing-Siu and Powell and English, the principle was based on an incomplete and erroneous reading of the case law, coupled with generalised and questionable policy arguments.26 An important controversy in Chan Wing-siu was whoever foresaw the crime but never intended the crime to occurred could be liable as a secondary party. However, foresight should not be considered as intention to execute the joint enterprise. The evidence for the foresight element has always been based on inferences such as friendship and often mere presence.27 This can be reiterated in the Australia case Miller v The Queen28, the dissenting judge, Gageler J criticised the principle of Chan Wing-siu which making a secondary party liable for a crime they foresaw but did not intend disconnects criminal liability from moral culpability.

25

Availavle at http://thejusticegap.com/2016/07/joint-enterprise-need-clarity-transparency/ accessed on 24

December 2017. 26

Available at http://blog.scconline.com/post/2016/03/05/chan-wing-siu-principle-with-regard-to-accessory-

liability-overturned/ accessed on 24 December 2017. 27

Available at http://www.statewatch.org/news/2012/jan/uk-jhrc-joint-enterprise-report-vol2 accessed on 24

December 2017. 28

Miller v The Queen [2016] HCA 30.

7

Moreover, there is criticism in liability for accidental deviations in the execution of the joint enterprise. Both of the offenders are liable under the execution of joint enterprise because there is a common purpose even the secondary party not the one who caused the crime. Both offenders were guilty of murder irrespective of who caused the crime. The question arises that at what point had one of the defendants gone beyond what had been agreed in their further actions. There is no formal agreement appears to have been made. In the case of R v Gnango29, the defendant is charged as an accessory although he is not the one who shot the deceased. In this case, two people independently form the intention to kill each other which hardly described as a joint enterprise to commit murder. This is because there are two independent enterprises to commit murder. Secondary party and principal does not have common purpose to cause the victim died. Hence, there is perilous slope involved in guiding juries on joint enterprise. This is because it allowed a jury to find that secondary party foresaw a risk that a weapon would be used on the basis of his knowledge of its presence detracts from the subjective nature of the mental element. Furthermore, there is criticism in liability for deliberate deviations in the execution of the joint enterprise. There is no connection required to be proven between secondary party and the itis death. The seodar liailit is ostrued fro a ide rage of prearious bases. Since there are both evidential and moral reasons, it is difficult for the court to ensure the derivative liability of the accomplice. Experience has shown that joint criminal enterprises only too often escalate into commission of greater offences. In order to deal with this important social problem, the accessory principle is needed and cannot be abolished or relaxed. However, this seems to be injustice as the secondary party is liable even he did not foresee the crime. In the case of Davies v DPP30, Lord Simonds defined aoplie as partiipes riiis i respet of the atual crime charged.31 Hence, whoever participated in a crime will be liable even though there is no actus reus.

29

R v Gnango [2011] UKSC 59.

30

Davies v DPP [1954] AC 378.

31

Available at http://swarb.co.uk/davies-v-director-of-public-prosecutions-hl-1954/ accessed on 26 December

2017.

8

In recent year, a campaign group, the Joint Enterprise Not Guilty by Association, has argued that the way judges have interpreted the joint enterprise rules has led to widespread miscarriages of justice.32 In the present law, criticism has still arisen in the case of R v Jogee33 such as the rule governing retrospective appeals.34 The prosecution must prove that the defendant intentionally assisted or encouraged the person to commit the act. However, there is no clear definition of assisting and encouraging. Furthermore, in the case of Milller and Chan Kam Shing, the court declined to use the principle in Jogee. This is because by applying traditional accessorial liability criminal complicity is insufficiently dealt with principles and that there is no need for a separate doctrine of joint criminal enterprise. In additio, Jogees assessment of a relatively low level of culpability on the part of participants in joint enterprise and its characterisation of the doctrine as anomalous and savouring of constructive crime is one of the criticisms in the present law. In a nut shell, these criticisms can undermine public confidence in the doctrine of joint enterprise. There is lack of certainty and clarity in this doctrine. Hence, reform regarding this doctrine must be taken to ensure the doctrine is clear and justice.

32

Available at https://www.theguardian.com/law/2016/feb/18/joint-enterprise-law-what-why-controversial

accessed on 26 December 2017. 33

R v Jogee [2016] UKSC 8.

34

Available at https://www.legalcheek.com/lc-journal-posts/r-v-jogee-a-supreme-court-betrayal/ accessed on

27 December 2017.

9

5.0 Reform In recent year, joint enterprise has become the subject of intense debate and controversy. It was found that the doctrine of joint enterprise has falsely interpreted over the thirty years. In the case of R v Jogee35, the Supreme Court ruled the idea of foresight is insufficient for charging secondary party liable. This is because foresight is not a common intent although it can be used as an evidence of intent. Hence, there is new principle in doctrine of joint eterprise i the judgeet of Jogees ase. There are several suggestions for reform on the doctrine of joint ente...