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The Law of Joint Enterprise: Graham Virgo with English subtitles  

the so-called law of joint enterprise

has been in the media a lot recently

there have been TV dramas documentaries

and a lot of coverage in news items

newspapers etc about joint enterprise

now this is a body of law that causes a

great deal of controversy particularly

in the context of murder because what

this law appears to do is to say that if

one person is guilty of murder all sorts

of other people who may be associated in

different ways with that murder and

maybe not even associated at all but

just present might be convicted of

murder

as well now some people might say that's

perfectly appropriate if they are

present at the scene of a crime they

didn't do anything to stop that crime

they are a criminal and they should be

treated like all other criminals and we

shouldn't be worried about it but other

people might say well this isn't really

fair we're treating everybody in the

same way one person who actually kills

intending to kill maybe pulls out a

knife and intends to kill the victim and

does so is guilty of murder but other

people who may just be present may just

have an idea of what might be happening

are convicted of murder as well is that

fair

and that's really what I want to examine

in this presentation really my concern

is what the law says about joint

enterprise to try and assist in the

debate about what we should be doing in

this very difficult murky area of the

law so let me start with one very

important point there is no law of joint

enterprise there's no statute that says

this is what joint enterprise is

joint enterprise is just a phrase that

is used by judges sometimes by

prosecutors but particularly by the

media to describe a very complex area of

the law you can't actually say

specifically what joint enterprise is

it's just a tag that's attached to a

wide variety of different circumstances

and I think that's one of the main

reasons this area of the law is so

controversial we don't really know what

we're talking about actually when you

start looking at those contexts where

joint enterprise language is used you

can identify three distinct situations

so let me just identify what those

situations are the first is where you

have two people perhaps with a common

purpose who intend to commit the same

crime at the same time so to give a vey

simple example you may have two people

who want to kill the same victim they

both have knives and they both stab the

victim at the same time and that victim

dies from both of those wounds now in

that case they are both murderers both

those defendants who stabbed the victim

are murderers we would call them

principled offenders they have both

contributed to the victims death with an

intention to do so now we could say and

sometimes the courts do say they were

acting under a joint enterprise or a

common purpose but that really adds

nothing they are both murderers and I

don't consider that to be at all

controversial the second situation of

joint enterprise is where one person

let's say commits murder as a principal

offender but somebody else either as

lists or encourages that murder in those

circumstances the person who is the

assister or the encourage ur may be

guilty of murder as well but only if we

can prove that they did assist or

encourage the murder that they intended

to do the act of assisting or

encouraging and and this is where it

does get rather complicated

they either intended the murder to take

place they knew the murder would take

place or they foresaw that the murder

might take place in the easy cases

conviction of the assister or the

encourage ur is straightforward let me

give you a couple of examples if one

person supplies a gun to the principal

intending that the principal will use

that gun to commit murder and he does

use it to commit murder

then the accessory the assister should

be convicted of a serious crime as well

that a sister is clearly associated with

the murder

similarly if somebody actually

encourages the murderer to commit murder

tells them why don't you kill that

person or is present cheering on the

murderer then they are sufficiently

associated with that murder as well and

so they should be convicted of murder

but what if the person who is alleged to

assist or encourage is much further away

from the commission of the crime they

haven't actually provided the weapon

they haven't actually said go on commit

murder well then it's much more

difficult to justify convicting the

accessory of murder and here there's a

very important point to stress that's

often forgotten particularly in the

media coverage of these sorts of cases

just because

you are present at the scene of a crime

it doesn't follow that you are

associated with that crime if for

example a fight is taking place and I

just stand by watching that fight not

saying anything not doing anything I am

NOT associated with that fight in any

way so if the fight results in the death

of one of the fighters I'm not an

accessory to the murder that has taken

place it will be different if I turn up

knowing that there's going to be a fight

and want by my presence to encourage

that fight that's different because then

I'm associated with the fight but mere

presence by itself is not sufficient now

there's one other point to emphasize

about this forum joint enterprise

liability what we would call general

accessory liability where you assist or

encourage the crime there will be some

cases where the prosecution simply

cannot prove who committed the murder if

the victim was stabbed to death it may

not be possible to prove who was present

and had the knife with the intention to

kill but it might exceptionally be

possible to prove that one person had

the knife and intended to kill and the

other people all the other people who

were present intended to assist or

encourage the murder in those

circumstances it is appropriate to

convict all of them of murder even

though we don't know who was the actual

person who committed the murder

because we know that all of those

present were associated in some way but

whilst that's acceptable in the easy

case this idea that everybody who is

present is equally guilty

does cause problems in more complex

cases and if you can't be sure that one

person was sufficiently associated then

none of them should be convicted for

this principle to apply we need to be

able to establish that everybody present

was guilty of the crime either

because they did have the knife and

stabbed the victim or if not they were

sufficiently associated with it and if

there is doubt about one person who's

been charged as being associated with

the crime that they weren't sufficiently

associated then they should all be

acquitted

now the third situation where the

language of joint enterprise is used is

slightly different this is a situation

where for example two people agree to

commit one crime let's say they agree to

commit a burglary and in the course of

the burglary one of them takes out a

knife let's say and stabs the victim the

occupant of the house to death that

person is a principal to murder will be

convicted of murder and that's not

controversial but English law says that

the other person who didn't kill the

victim may be convicted of murder even

though they didn't assist or encourage

the murder if they foresaw murder being

committed as a possibility now that's

controversial but that means if you go

along as a burglar to commit a burglary

and you think the person who you're

going along with to commit this burglary

might have a weapon and you know that

they have a type of personality where

they might use violence and they do

commit murder then as long as you

foresee murder being committed as a

possibility then you will be convicted

of murder as well and in all of these

cases if you are convicted of murder the

sentence that is imposed is the

mandatory life sentence now it is the

case that judges are able to identify a

minimum term that should be served in

prison

even where there's a mandatory life

sentence but they have very clear

guidance statutory guidance as to the

starting point

for the minimum term by reference to so

called tariffs are quite often this is

dependent on the age of the defendant

and on the circumstances in which the

killing took place but in many of the

cases that we're looking at which

concern so called joint enterprise

liability the minimum starting point

might be something like 20 years and the

judge may have very little room for

manoeuvre to bring that minimum tariff

down so it follows that the person who

actually kills the victim the actual

murderer will get the mandatory life

sentence with a minimum term of say 20

years and the accessory or the person

who went along as a burglar foreseeing

that murder might be committed will also

get the same minimum term so that's the

state of law on joint enterprise

liability just to summarize there is no

rule about joint enterprise liability

there are just three different scenarios

the first one I think is uncontroversial

where there are two principals who

commit murder

both are murderers both have caused the

death with an intention either to kill

or to cause serious injury they satisfy

the definition of murder and it's right

to treat them as murderers secondly

there is the principal who commits

murder and the accessory who assists or

encourages that murder either intending

knowing or believing or foreseeing that

murder might occur they are regarded as

sufficiently associated with the murder

to be convicted of murder as well and

they get the mandatory life sentence and

thirdly there is this third situation

which actually the judges call

parasitical access oriole liability

where the liability is based upon a

common purpose to commit one crime where

the principal departs from that common

purpose from that joint enterprise to

commit a different cut crime most

controversially

in the context of murder and if the

party who didn't commit murder but went

along to commit a common purpose crime

but foresaw that murder might be

committed they will be convicted of

murder as well even though they didn't

cause death even though they didn't

intend to kill or to cause serious

injury they are treated as murderers and

they get the mandatory life sentence so

that's the state of the law is it

satisfactory well at the core of the law

I think we can justify conviction in

each of these three cases where we have

two principals they're both guilty of

murder where somebody assists or

encourages murder by giving the weapon

or saying to the principal go and commit

murder they are sufficiently associated

and sometimes perhaps it may be

appropriate

to justify convicting a burglar of

murderer when somebody else commits

murder because you shouldn't go along on

the joint enterprise where there's a

common purpose for seeing but murder

might occur but there are problems with

this area of the law and let me just

identify some of the problems as I see

it first we treat the accessory in

exactly the same way as the murderer

formerly they are convicted of murder in

these joint enterprise scenarios and I

think that sends out the wrong message

in the law to the judge and to the jury

in terms of assessing the liability of

these accessories we should be looking

at their responsibilities in their own

right each person's responsibility

should be considered separately so I

think there is a problem in using the

language of joint enterprise I think

that gives this idea that everybody can

be treated in the same way that might

support a police and prosecution policy

that anybody who is present at the scene

of the crime should be prosecuted and

should be treated as though they were a

murderer I think as a matter of

principle and criminal theory that way

of thinking is difficult to justify a

second problem with the law is the

difficulty in stating what the law is I

have just tried to summarize the law as

I see it in fact I've skirted over some

of the controversies in the law for

example I have said it's sufficient that

the accessory foresees that murder might

be committed but what is it that the

accessory needs to foresee do they just

need to foresee death

or even serious injury or do they need

to foresee that the principal the

murderer will actually kill or cause

serious injury with an intention to do

so there are confusing and contradictory

cases some saying it's enough to foresee

the harm and others saying you need to

foresee both the harm and that the

principal will have the relevant

intention that shows this is an area of

the law that is unacceptable

in its complexity and confusion because

despite what I've tried to do we cannot

be absolutely sure as to what the state

of the law is a third problem with the

law does concern prosecution policy as

to whether it is appropriate

particularly in the context of gang

crime and knife crime for prosecutors to

prosecute everybody who was present at

the scene of the crime now we have in

2012 received some CPS Crown Prosecution

Service guidelines on prosecution policy

in these joint enterprise scenarios it's

too early really to determine whether

this policy has had any dramatic effect

yet and actually the Justice Select

Committee is at the moment considering

that policy to see whether it has had an

appropriate impact I think we'll just

have to wait and see whether there is

evidence forthcoming which suggests that

prosecution policy has changed if it

hasn't I think we need to focus again on

prosecution policy in these cases and

maybe have much clearer guidance to

ensure that we don't prosecute people

just because they were present at the

scene of a crime particularly at the

scene of a murder

more should be required before they can

be

sidered in terms of prosecution to be

associated with the crime a final

problem with the law in this area

concerns sentencing the fact when we are

dealing with joint enterprise murder as

it's often called the party who is the

accessory who is regarded as associated

is convicted of murder and gets the

mandatory life sentence with very high

minimum tariffs is a serious cause of

concern we have people in prison serving

sentences for 20 years and more who did

not actually kill who didn't cause death

who didn't intend to cause death and

serious injury and in some cases the

murderer receives a lower minimum

sentence often because of their age that

I find difficult to justify so finally

what can we do to reform the law in this

area I think it's quite clear from what

I've been saying that I do have serious

concerns about the state of the law

concerning so-called joint enterprise

liability I want to emphasize that

concern is not about the core liability

it's not a a concern about the principle

who commits murder and it's not actually

really a concern about the person who

directly assists or encourages the

murder although some of the reforms I'm

going to suggest will have an impact in

those cases my real concern is with the

people who are the periphery who are

brought in to the prosecution whose

responsibility on any view is no way

near as significant as that as the

principal who commits murder they at the

moment

are being treated as murderers in their

own right so what should we do

one reform which is not a legal reform

is a reform concerning prosecution

policy I think that does need to be

considered much more carefully by the

Crown Prosecution Service secondly I

have serious concerns about the

imposition of the mandatory life

sentence for murder at least as regards

accessory liability we could change the

law to abolish the mandatory life

sentence for murder that I know is

politically controversial another reform

which i think is much less controversial

is to actually recognize a new form of

murder to be called secondary liability

murder or murder in the secondary degree

that would be the appropriate murder to

be charged in all cases of accessory

liability to murder and a consequence

would be the mandatory life sentence

would not be imposed now some people

would want reform there to go even

further and to say if you are going to

be convicted of being associated with a

murder where you didn't actually commit

murder yourself the language of murder

is inappropriate the language of

manslaughter should be used that I have

a lot of sympathy with but I think

second-degree murder

recognizing that which will require

statutory reform is arguably more

politically acceptable and a final

reform and I admit this is even more

controversial is to reconsider the

mental element to be liable as an

accessory

whether you're an assister or an

encourage or you've agreed to have a

common purpose to commit one crime and

the principle departs from that to

commit another crime as the law stands

you will be an accessory

if you foresaw the commission of the

crime or probably foresaw the crime in

terms of the harm and that the principal

intended either to kill or to cause

serious injury I think the time has come

where we need to change the mental

element or the fault

element to be an accessory and I think

we should move away from saying it is

enough for the accessory to foresee that

the crime might be committed and instead

to require proof that the accessory

either intended knew or believed that

the crime would be committed mere

foresight is not sufficient to establish

responsibility now I know that that

would be a fairly radical reform but

that would certainly dramatically reduce

the cases which are a cause for concern

at the moment where people who are only

on the periphery of the crime are

regarded as associated with the murder

and are treated as murderers in their

own right

so I've suggested a variety of reforms

that we could adopt in this area in fact

I think adoption of only one of them

would dramatically affect the problems

in this area involving accessory

liability in what is colloquially called

joint enterprise liability we may say

this isn't a cause for concern if you

are present at the scene of the crime a

murder took place particularly if you

are a member of a gang or associated

with a group of people who were involved

in criminal behavior there shouldn't be

concerned that you are convicted as well

we don't like criminals we should treat

criminal

in exactly the same way regardless of

their responsibilities but my view is

the criminal justice system is more

important than that has a more

principled approach to the law which

does have regard to degrees of

responsibility we need to reflect those

degrees of responsibility in the law to

differentiate between the principal who

is the murderer and the accessories who

were associated with the murder and also

the degrees of association and we have

to accept that we reach a point where

somebody is so far away in their

involvement from the commission of the

murder that they should not be regarded

as associated with that crime at all at

the moment in this area of the law I

think we have a criminal in justice

system and this is an area of the law

where reform is required to ensure that

we return to a criminal justice system

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