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Joint Enterprise: The “Let Him Have It” Principle

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About The Author

Amy Ling (Former Private Law Manager)

Amy graduated with a first in Philosophy from The University of Manchester in 2012. Following three years working within the social housing sector, Amy is currently studying for her LPC and will begin a training contract at a city firm in September 2016. Amy is an accomplished mooter, and was on the winning team in the 2015 JustCite International Mooting competition. Outside of the law, Amy is a keen runner.

In June 2011, 47 year old Paul Fyfe, a former police officer then working as a paralegal, was stabbed to death at the home of his girlfriend in Leicestershire in a late night drug-fuelled altercation with two youths. The man responsible for stabbing Mr Fyfe was Mohammed Hirsi, described by the judge at first instance as a ‘cold, arrogant and dangerous man’. However, despite being the only person who wielded the murder weapon, Hirsi was not the only person convicted for the offence: Ameen Jogee, with whom Hirsi had spent the hours prior to the attack, was also found guilty of murder.

What did Mr Jogee do? Despite the fact he did not enter the property or inflict any injuries on the victim himself, he was present at the scene, and encouraged Hirsi to commit violence towards the victim immediately prior to his attack. These actions of encouragement resulted in the controversial and hotly debated doctrine of ‘joint enterprise’ being applied and 22 year old Jogee received a mandatory life sentence.

This article will examine joint enterprise, starting with an outline of the principles behind the doctrine, before outlining recent criticisms and the Supreme Court appeal in Jogee.

The Doctrine of Joint Enterprise

Joint enterprise is a common law doctrine originally established approximately 300 years ago in order to deter illegal duelling. The intention was to make not only the combatants but also any witnesses or medics equally culpable, in order to deter the activity.

Since that time, the doctrine has evolved and been applied to an evolving range of crimes, increasingly in relation to serious youth violence. Perhaps one of the most famous examples is that of Derek Bentley, who was hanged as a teenager for his involvement in the murder of a police officer in 1953, even though he did not fire the gun causing the fatal injury. According to the guidance on joint enterprise from the Criminal Prosecution Service (CPS) issued in 2012, the most common offences the principle is used for are public order, theft, fraud and violence.

Three types of joint enterprises can be categorised as follows:

  1. Where two or more people join together in committing a single crime. For example, A and B go on a shoplifting spree together.
  2. Where one person assists or encourages another to commit a crime. For example, A acts as a get-away driver or look-out for B whilst B commits burglary (this was the offence of Bentley).
  3. Where two or more people participate in one crime, and during the course of this crime one person commits a second crime that could have been foreseen by the other participants. For example, A and B are in the process of committing burglary when they are disturbed by the householder, who B then attacks with intent to commit serious harm, resulting in death.

Section 8 of the Accessories and Abettors Act 1861 (as amended by the Criminal Law Act 1977) allows for someone who assists or encourages a crime to be prosecuted for that crime:

Whosoever shall aid, abet, counsel, or procure the commission of [F1 any indictable offence] , whether the same be [F1 an offence] at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender.

As summarised from the House of Lords case R v Rahman [2009] 1 AC 129 (which was then relied on in the Court of Appeal concerning Jogee) in relation to violent offences, the test for the court to consider is as follows:

If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture unless (i) A suddenly produces and uses a weapon of which B knows nothing and which is more lethal than any weapon which B contemplates that A or any other participant may be carrying and (ii) for that reason A's act is to be regarded as fundamentally different from anything foreseen by B.

The ‘Hyde principle’ from R. v. Hyde [1991] 1 QB 139 also says that B can be equally liable for the murderous act of A if she realised that that A might kill with the mens rea of murder (i.e intention to kill or cause GBH).

It is using these principles that it is possible for Jogee to be convicted of murder: by encouraging (abetting/counselling) Hirsi in his acts towards the victim, he becomes jointly liable for Hirsi’s offence. All that is required is that he realised that Hirsi might inflict serious injury, which appears to be the case given the evidence from the only eye witness that ‘Nelly [Hirsi] was inside the front door. Ameen was outside near the car. There was stuff being said but I can't remember exactly what was said, but Ameen was egging Nelly [Hirsi] on to do something to Paul’ (emphasis added).

What is considered sufficient evidence for participation (in this case in terms of encouragement), is a matter for the jury. However, the CPS guidance published in 2012 does give some direction, for example stating that mere presence at the scene of the offence will not necessarily be sufficient: how voluntary the presence is and whether there was an intention to encourage the offence must be taken into account. This demonstrates the way that joint enterprise attempts to “cast the net” to capture those who have contributed to the criminal activity.

There are many instances in which it would seem reasonable for courts to be able to convict groups that act in this way, such as the example of the get-away driver and the robbery. The crime the group decide on committing requires a certain division of labour, but all parties are fully intended on the same outcome. Allowing for conviction for the same crime can therefore help in ensuring that the real mastermind does not avoid the most serious sentence when actually a group acted with a common purpose.

However, in practice there have been growing concerns that the doctrine has been used excessively, leading – as argued by Joint Enterprise: Not Guilty by Association (JENGbA) – to people being ‘convicted even when they are innocent, uninvolved bystanders or when they do not know that a crime is being committed or might be committed’. This is particularly prevalent in cases where violence erupts between gangs of youths, resulting in serious harm or injury.

Controversy

An example of this controversy can be found in the case of Laura Mitchell, as highlighted in research conducted by the Bureau of Investigative Journalism (BIJ):

January 2007… Mitchell was on her way to the cinema with her boyfriend Michael Hall. They stopped for a drink….About 2am they left the pub and piled into a taxi parked outside. It turned out to have been booked by someone else and a fight broke out. When it ended Mitchell began stumbling about the car park trying to find her shoes, which had come off in the fight. Meanwhile, some of her male companions went to a nearby friend’s house, armed themselves with weapons and returned. A much more serious fight broke out during which a man was killed.

One of the group, Carl Holmes, pleaded guilty to murder and got life. Mitchell, her boyfriend and another man were also convicted and given life sentences. In Mitchell’s case… remaining in the car park made her complicit in the murder, even though it was accepted in court that she might not have participated in the second attack at all. [Emphasis added]

Another case, that of Jordan Cunliffe, who was convicted of murder following the horrific attack on Gary Newlove. Although Cunliffe admits being at the scene, he denies taking part in the murder and argues that his eye sight is so poor (he is registered blind) that he would not have been able to see, and therefore anticipate, the violence that unfolded. Thus far, appeals against his sentence have been unsuccessful.

Stemming from examples such as these criticism and concern about the doctrine, and its application, has been growing in recent years. These can be characterised as follows:

  1. The legal test: The bar for establishing joint enterprise is set too low, because it focuses on the defendant having seen the possibility that the perpetrator may have acted the way they did, rather than that it was probable that the defendant acted as they did. This is too broad, and potentially criminalises all those who associate with groups perceived as ‘gangs’, whose activity is associated with a very high possibility of violence.
  2. Maturity distinction: It is inappropriate to apply the same requirement of foresight to children and youths as it is to mature adults, because youths do not have the same ability to foresee the possible consequences of certain actions (such as associating with people who carry weapons).
  3. Lack of discretion in sentencing: The use of mandatory life sentences, and resulting lack of discretion when it comes to sentencing, means that those who play a relatively minor role receive a disproportionately high sentence.

Such criticisms have not just been levied by interest groups such as JENGbA, but also from within government.

In 2011, the Justice Committee undertook a short inquiry into the doctrine, highlighting concerns that ‘the complexity and opacity of the doctrine could be the cause of injustice, whether to victims and their families, or to defendants’ due to the lack of data available on the doctrine’s use and the lack of guidance from the DPP on the doctrine. They recommended that these were addressed and the common law principle is fully enshrined in statute as a conduct offence, following the Law Commission’s recommendations in their 2007 ‘Participating in Crime’ document.

In March 2014, the BIJ examined practice around joint enterprise using Freedom of Information Requests. They found that between 2005 and 2013, over 1800 people were prosecuted for murder where four or more defendants were involved – cases which are most likely to have involved joint enterprise. CPS figures specifically for 2012 (statistics are not available for all years) state that 139 cases of joint enterprise murder and manslaughter involved 470 defendants. 326 of these were convicted.

In December 2014, the Justice Committee again called for an urgent review into the practice over concerns that people were being charge for offences far greater than those that they had actually committed, for example for murder rather than conspiracy. It also pointed to issues with the legal test employed, stating ‘the low threshold of culpability for secondary participants is behind the sense of injustice harboured by many of those convicted of murder under the doctrine’ and arguing that the threshold should be reviewed. Upon release of the report, the chair of the committee – Sir Alan Beith – said:

Joint enterprise remains a highly controversial subject amongst lawyers, academics and others… Some have argued that the doctrine has an important effect in deterring young people from getting involved in criminal gang activities, but others are sceptical about this. We say in our report that there is a real danger in justifying the joint enterprise doctrine on the basis that it sends a signal or delivers a wider social message, rather than on the basis that it is necessary to ensure people are found guilty of offences in accordance with the law as it stands.

Due to the upcoming election in May 2015, then-Justice Minister Chris Grayling refused to initiate such a review, and the topic has lain dormant since. It seems that the only likely route that the issue will now be addressed is through the higher courts.

Appealing the Legal Test in the Supreme Court

In its investigation, the BIJ also found that the rate of appeals on joint enterprise cases is increasing, rising from 11% of court of appeal rulings in 2008 to 22% in 2013. One such appeal is Jogee, which passed to the Court of Appeal in 2013 (R v Jogee [2013] EWCA Crim 1433) and has now reached the Supreme Court.

The central issue under consideration relates to problem (1) identified above, namely whether:

the prosecution must provide that a secondary offender, who encourage the primary offender to commit some harm, foresaw the primary offender’s acquisition and use of a weapon for murder as “probable” rather than “possible” in order to establish joint enterprise

The case is now supported by two interveners: JENGbA (as above) and the charity Just for Kids Law, who are also raising the issue of (2) in their submissions that:

children and adolescents do not have the same ability to predict events or understand the consequences of theirs and other people’s actions, in the way that an adult would. One of the fundamental principles of joint enterprise is that an individual foresaw that an associate of theirs was likely to commit an offence.

By touching at the core of the sensitivities surrounding joint enterprise, any additional clarification and guidance from the Supreme Court on this will be welcome. Increasing the transparency surrounding the doctrine is no replacement for capturing the offence in statute, but any additional certainty may lead to fewer miscarriages of justice.

Conclusion

One of the things that makes the application of the doctrine of joint enterprise so difficult in cases such as those above is that it is difficult to apply even a neatly defined and uncontroversial principle to what are often deeply chaotic and confusing situations. This is particularly relevant in serious youth violence.

This remains a highly emotive issue as it must be remembered that there are some instances where the person out of the group who struck the fatal blow is not known, and without joint enterprise no-one would be convicted at all, such as in the case of Stephen Lawrence. As argued by Lorraine Fraser, mother of the victim in R v Rahman, ‘We need this law… without this law people could get away with murder.’

Perhaps this is the central problem: the doctrine ends up acting like a ‘fishing net’, ensuring that at least someone is found guilty of the crime. Many of those who are swept up in this net do appear to have acted in some morally reprehensible way, such as failing to step in to prevent an attack or shouting abuse to heighten tension in a situation rather than to diffuse it, but it is hard to see in many cases – such as Jogee’s – that their actions are sufficient to warrant the mandatory life terms and identify as a ‘killer’ imposed. There also is a concerning over-representation of young black men within those receiving long sentences by joint enterprise, suggesting the tool is having the result of targeting certain social groups.

This is not to say that such people should get away without consequences, but just that the law needs to account for differing levels of culpability. This is essential in order to preserve the principle that an individual is (in all normal circumstances) responsible for their own actions: someone shouting at me to “sock it to him” when confronted with an enemy may certainly influence my actions, but that action is mine, and the conduct is completed solely by me. Criminalising large groups of people can give the impression of justice, but whether justice is actually being served is another question altogether.

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Tagged: Criminal Law, Justice

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