Joint enterprise

Introduction

Joint enterprise refers to the legal doctrine in criminal law where multiple individuals can be held liable for a criminal offence committed in the course of a shared plan or agreement. This concept addresses the liability of participants who assist or encourage the commission of a crime, even if they do not carry out the principal act themselves. Key principles involve the assessment of intent, the nature of the agreement among parties, and the extent of participation. A comprehensive understanding of joint enterprise is essential for analyzing secondary liability and the relationships between principal offenders and accessories under UK law.

Inchoate Offences: Steps Towards Criminal Liability

Inchoate offences consist of preliminary actions that aim toward the commission of a crime but do not culminate in the crime's completion. These offences capture the legal system's interest in preventing harm before it fully manifests. They include attempts, conspiracies, and actions that encourage or assist crimes under the Serious Crime Act 2007. By addressing inchoate offences, the law holds individuals accountable for their criminal intent and preparatory actions, even when the ultimate offence is not brought to fruition.

Types of Inchoate Offences

1. Attempt: Occurs when an individual takes steps beyond mere preparation toward committing a crime, but the crime is not completed. It's akin to setting a plan in motion but being interrupted before reaching the goal.

2. Conspiracy: Involves an agreement between two or more persons to commit a criminal offence. Even if the planned crime never happens, the agreement itself is punishable. This is comparable to plotting a course of action that violates the law, with the agreement alone constituting the offence.

3. Encouraging or Assisting Crime: Under Sections 44-46 of the Serious Crime Act 2007, this includes acts of aiding or encouraging the commission of an offence, regardless of whether the crime is ultimately committed.

Legal Framework

The legal basis for inchoate offences is established through several statutes. The Criminal Attempts Act 1981 governs attempts, while the Criminal Law Act 1977 deals with conspiracies. The Serious Crime Act 2007 expands the scope, particularly concerning acts that encourage or assist offences.

Sections 44-46 of the Serious Crime Act 2007

• Section 44: Covers intentionally encouraging or assisting an offence.
• Section 45: Addresses encouragement or assistance believing the offence will be committed.
• Section 46: Pertains to situations where a person believes that one or more offences will be committed and that their act will encourage or assist them.

These sections transition from the common law offence of incitement to a statutory framework that is more comprehensive of modern criminal activities.

Case Study: R v Saik [2006] UKHL 18

In the case of R v Saik, the defendant was involved in a conspiracy to launder money believed to be the proceeds of crime. The House of Lords held that for a conspiracy, there must be an intention regarding the elements of the substantive offence, showing the importance of intention in inchoate offences. This case highlights how the law requires a clear intent to commit the offence, not merely a suspicion or possibility.

Joint Enterprise: Collective Criminal Responsibility

Joint enterprise addresses situations where multiple individuals act together in the commission of a crime. The doctrine holds that participants can be held liable for offences committed by others within the group if those offences are within the scope of the joint venture or are a probable consequence of it.

Evolution of Joint Enterprise Law

The doctrine of joint enterprise has undergone significant changes, especially following the landmark case of R v Jogee [2016] UKSC 8, which reshaped the understanding of secondary liability.

Pre-Jogee Position

Before Jogee, the law rested on the principle that if a secondary party foresaw that the principal might commit an offence during the joint enterprise, the secondary party could be held liable for that offence. This meant that mere foresight was equated with intent, leading to convictions of secondary parties even if they did not directly intend the crime.

The Jogee Decision: A Shift in Legal Approach

The Supreme Court in R v Jogee overruled previous case law and clarified the correct approach to joint enterprise and secondary liability:

1. Foresight vs. Intent: The court held that foresight of what might happen is evidence from which intent may be inferred but is not synonymous with intent itself. A person must intend to assist or encourage the crime.

2. Requirement of Intent to Assist or Encourage: For secondary liability, there must be proof that the secondary party intended to assist or encourage the principal's commission of the offence.

3. Overwhelming Supervening Event: The court introduced the concept that if the principal commits an act that is fundamentally different from what the secondary party intended to assist or encourage, the secondary party may not be liable.

This decision emphasized that liability should be based on intention rather than mere foresight, aligning the law more closely with principles of fairness and individual culpability.

Post-Jogee Developments

Following Jogee, courts have further clarified the application of joint enterprise principles.

• In R v Tas [2018] EWCA Crim 2603, the Court of Appeal addressed what constitutes an "overwhelming supervening event" that could break the chain of causation between the secondary party's actions and the principal offence. An act by the principal that is so extraordinary and independent may absolve the secondary party from liability.

• R v Crilly [2018] EWCA Crim 168 considered the retrospective application of Jogee, allowing convictions to be appealed if they were based on the old understanding of the law. This illustrates the significant impact of Jogee on past convictions.

Practical Example: Applying Joint Enterprise Post-Jogee

Consider individuals A and B agreeing to commit a burglary. During the burglary, A unexpectedly assaults the homeowner with a weapon, an act that was not part of the original plan. Before Jogee, B might have been held liable for the assault if it was foreseeable that A could become violent. After Jogee, B's liability for the assault depends on whether B intended to assist or encourage the assault. If B did not intend for any violence to occur, B may not be liable for A's assault under joint enterprise principles.

This shift places greater emphasis on the secondary party's actual intent, ensuring that individuals are not unjustly held responsible for unforeseen actions of others.

Secondary Liability: The Role of Accessories

Secondary liability concerns the legal responsibility of individuals who aid, abet, counsel, or procure the commission of an offence, even if they do not perpetrate the principal act themselves. This area of law examines the participation of accomplices and the extent of their culpability.

Forms of Participation

1. Aiding: Providing assistance or support to the principal offender, such as supplying tools or information.

2. Abetting: Encouraging or inciting the principal to commit the offence through words or actions.

3. Counselling: Advising or instructing the principal on how to commit the offence.

4. Procuring: Causing or setting up the offence. This could involve creating circumstances that enable the crime to occur.

Core Legal Principles

• Derivative Liability: Secondary liability is derivative in nature, meaning it depends on the commission of the principal offence. If there is no principal offence, there can be no secondary liability.

• Actus Reus: The secondary party must have performed an act that assisted or encouraged the commission of the offence. This involves a positive action that contributes to the crime.

• Mens Rea: The mental element requires that the secondary party intended to assist or encourage the commission of the offence, with knowledge of any essential elements that make the act criminal.

Case Study: R v Bryce [2004] EWCA Crim 1231

In R v Bryce, the defendant drove the principal offender to a location, knowing that the principal intended to commit a murder. The court held that for secondary liability, it must be shown that the defendant's act was capable of assisting the offence, that the defendant intended to assist, and that the defendant foresaw the real possibility that the offence would be committed. This case illustrates how knowledge and intention intertwine in establishing secondary liability.

Mens Rea Considerations: The Importance of Intent

The mens rea, or mental element, is essential in establishing secondary liability and participation in joint enterprise. The focus is on the defendant's state of mind concerning the assistance or encouragement of the principal offence.

Key Principles

1. Intention to Assist or Encourage: The secondary party must intend that their actions will assist or encourage the commission of the offence. Mere accidental assistance is insufficient for liability.

2. Knowledge of Essential Matters: While the secondary party does not need to know all the details of the principal offence, they must be aware of the essential matters that constitute the offence. This ensures that individuals are not held liable for unwittingly enabling a crime.

3. Foresight as Evidence of Intent: While foresight that the offence might be committed is not enough on its own for liability, it can be evidence from which intent may be inferred. The courts consider whether the secondary party foresaw the real possibility of the offence occurring as part of determining their intent.

Conditional Intent

Conditional intent arises when a secondary party's intention to assist or encourage is contingent upon certain circumstances. For example, agreeing to assist an offence if a particular condition is met.

Practical Example: Conditional Intent in Action

Suppose Person C agrees to act as a lookout for D, but only if D decides to go through with a planned theft. Even if C hopes that D will change their mind, C has conditionally intended to assist the offence if the condition is met. This suffices for the mens rea in secondary liability, as the intention to assist exists under certain conditions.

Conclusion

The transformation of joint enterprise law following R v Jogee has significantly reshaped the approach to secondary liability. By rejecting the notion that mere foresight equates to intent, the courts have re-emphasized the requirement of intentional assistance or encouragement for holding secondary parties liable. The interaction between inchoate offences and joint enterprise illustrates the law's approach to preventing and punishing participation in criminal activities, even when the offences are not completed or when the participants play different roles.

Understanding the details of secondary liability involves examining the specific mental states required for different forms of participation. For instance, inchoate offences such as attempt and conspiracy require proof of intent to commit the substantive offence. Similarly, secondary liability hinges on the intention to aid or encourage, coupled with knowledge of the essential elements of the offence.

The interaction between the principles of mens rea and the conduct of the secondary party determines liability. Cases like R v Bryce demonstrate how the courts assess the connection between the accomplice's actions and the principal offence. The concept of an "overwhelming supervening event" further refines the boundaries of liability, acknowledging situations where the principal's actions are so divergent from the agreed plan that it would be unjust to hold the secondary party accountable.

In practice, applying these doctrines requires careful analysis of the facts, the defendants' intentions, and their understanding of the criminal enterprises they participate in. The emphasis on intent ensures that liability is proportionate to the individual's culpability, aligning legal outcomes with principles of fairness and justice.