Joint enterprise in criminal cases

'Joint enterprise’ is a legal  term that is often used, and almost as often misunderstood. It refers to the principle that two or more people can be jointly guilty of an offence even if they are involved in different ways. The term is loosely used to cover criminal liability as is set out in s8 Accessories and Abettors Act 1861:

Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be 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.

A person who aids, abets, counsels or procures an offence is guilty of that offence. Aiding and abetting was defined by the court as apt to describe the action of a person who is present at the time of the commission of an offence and takes some part therein. Counselling and procuring takes place before the offence, for example obtaining tools to commit the crime. The person or persons who commit the offence are known as principals and those who aid, abet, counsel, or procure are known as secondary parties.

From the above it will be seen that mere presence at the scene of a crime does not make a person guilty of the offence. That would be absurd as it would make a person liable for the actions of anyone in whose presence they were. There must be something in addition to presence: usually an act in furtherance of the crime. Common examples of secondary parties to an offence are a lookout for a burglar who never goes near the burgled premises or a getaway driver who stays in the car. Both are involved in the offence, but neither go near the crime scene.

As specific facts are applied to the law of joint enterprise it becomes more complex. If two parties agree to commit a robbery (and they therefore agree that some degree of force should be used), when one party uses a knife to inflict a fatal injury is the secondary party guilty of murder? The answer is that the secondary party can only be guilty if he (a) knew of the existence of the knife and (b) contemplated that the principal might use it to cause really serious harm. In a street fight where a person is stabbed to death the same applies: the secondary party must know of the existence of the knife and contemplate that the principal might use it to cause really serious harm. If the secondary party thought there was no weapon but thought he would be involved in a fist fight then he cannot be guilty of murder.

The law allows for encouragement to amount to joint enterprise. In order to establish this it must be proved that a person intended to encourage the crime and wilfully did encourage it. Mere continuing voluntary presence at a crime scene does not make a person guilty: there is no duty to walk away from the scene. However, it can be left open to a jury to decide whether remaining at the scene of a crime and doing nothing to prevent its commission (even when a person has the power to prevent it or could at least express dissent) might amount to encouragement.

There has been much discussion in the press recently about whether it is right to prosecute secondary parties for murder. From the above very brief summary of the law it should be clear that no one can be convicted simply for being present at the scene of an unlawful killing. Indeed the state of mind of a secondary party must be quite specific in what is intended and what is contemplated. The law is very complex on this topic and the consequences for anyone prosecuted can be extremely serious. If you want any further advice on this topic then please call Tim Walker who specialises in this area of law, and particularly in how it applies to those charged with murder. 

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