In the previous article on secondary parties we looked at how the law deals with people who provide help, encouragement and assistance to third parties committing a crime. We saw that a person (A) who provides a knife to another person (D) – knowing that D is going to use the knife to murder someone – can be tried, indicted, and punished as a murderer. Person A will be brought before a jury of his peers and charged with murder. If A is found guilty, he will be sent to prison with a mandatory life sentence.
This article seeks to explain how the law handles criminal offences carried out by a group, or gang, of people. Consider the following example:
Walt, Jessie, Michael, and Gus are members of a gang. They have all agreed to locate their archenemy, Todd, and kick him to death.
They find Todd outside his house reading Tom Bingham’s excellent book The Rule of Law. The gang runs over to Todd and Walt drags him to the pavement. Walt begins to stomp on Todd’s head while Jessie, Michael and Gus repeatedly kick him in the stomach and legs.
Todd dies as a result of the violent attack, and the gang members are apprehended by the police. It is impossible to prove which kick was the “fatal blow”. No scientific or forensic methods can possibly identify which member of the gang was responsible for his death.
The problem with the above scenario is that nobody can prove which gang member caused the death of Todd. The ordinary rules of causation make it very difficult, if not impossible, to identify the murderer and prove beyond reasonable doubt that he unlawfully killed Todd.
The law’s answer to this problem lies in the doctrine of joint enterprise. When two or more people embark on a joint criminal enterprise, all members of that gang can be punished for crimes committed by just one gang member, provided they foresaw that the crime was likely to happen. So, in the above scenario, the law would cast the net of murder around Walt, Jessie, Michael, and Gus. They would all be held criminally responsible for Todd’s death.
In the case of Stewart and Schofield, Hobhouse LJ highlighted the key difference between secondary parties and joint enterprise. He said that whereas an aider and abettor is not necessarily involved in the commission of the principal offence, a joint enterprise entails “taking part in the execution of an offence“. The key difference is that in order to be found guilty under the joint enterprise rules, one has to play some form of role in the execution of a criminal offence. Merely providing a murder weapon or shouting encouragement from a safe vantage point will not be sufficient.
J. Martin offers a more concise formulation of this critical difference. She defines joint enterprise as being “Where two or more people commit an offence together“.
The key word in Martin’s definition is “an”. If four people come together to commit burglary, and in the course of that burglary one person shoots the homeowner, all four burglars might be guilty of murder under the joint enterprise umbrella. This is true despite the fact that the other three burglars might have had absolutely nothing to do with the murder. Indeed, they might have watched in horror as their comrade whipped out a pistol and fired the fateful bullet into the homeowner’s chest. It is sufficient, in terms of actus reus, that all four burglars were committing an offence together (burglary) and there is no need to prove that they were all committing murder together.
Mens Rea Requirements
Joint enterprise comes with three key mens rea requirements:
- D1 must have foresight that D2 might commit a certain crime.
- D1 must foresee that D2 will have the relevant mens rea for that crime.
- D2 must commit the crime during the course of the joint enterprise.
These requirements can be found in the case of R v English (1997) where the court said:
If two parties embark on a joint enterprise and one party foresees that in the course of that enterprise the other party may commit, with the requisite mens rea, and act constituting another crime, the former is liable for that crime if committed by the latter in the course of the enterprise.
In R v English D and E took part in a joint enterprise to attack a police officer (V) with wooden posts. During the course of the violent conflict, E produced a knife and stabbed V to death. D was convicted of murder under the joint enterprise doctrine and appealed his case all the way up to the House of Lords.
On appeal, the House of Lords quashed his conviction. D did not foresee that E would use a knife with intent to kill during the course of the joint enterprise. Lord Hutton stated that if the weapon used by E was different to, but just as dangerous as, the weapon which D foresaw he might use, then D would be guilty. If, however, the weapon used by E was far more dangerous and had a far greater propensity to kill, then D would be not guilty. In English, a knife was held to be far more dangerous than a wooden post.
The basis of the House of Lords’ judgment in English was that if D and E embark on a joint enterprise, and D knows that E is carrying a knife, or a gun, or a spear, or anything of that sort, then there is evidence that D foresaw that E would use that weapon to kill.
The principle in English is backed-up by Lord Bingham’s judgment in Rahman and Others (2008). He accepted that in order to be found guilty under the joint enterprise doctrine, it is necessary to prove that D foresaw that E might commit a certain offence. Bingham suggested that if D knew that E possessed a dangerous weapon, then there is very strong evidence that D foresaw that E might commit a serious crime such as murder.
Let’s boil the judgments in English and Rahman down to a simple statement of law, using a case study to aid understanding:
Tom, Frank and James are part of a gang. They spend every Wednesday night driving around the local area looking for houses to burgle. One Wednesday night, as they are getting ready to head out into the streets, Frank and James watch Tom sliding a machete into a secret pouch inside his jacket. Not wanting to cause a fuss, they carry on getting ready for the long night ahead.
A couple of hours later, Tom, Frank and James spot an empty house and agree to force their way inside and steal the television. The door is unlocked, and they creep into the bedroom hoping to find some valuable jewelry. The sound of the bedroom door opening alerts Hank, who had been slumbering in his bed. Hank – a trained boxer – is handy with his fists and squares-up to Tom. Tom does not like it when people stand-up to him, so he grasps the machete from inside his jacket and plunges it into Hank’s throat.
Hank dies as a result of the wound, and Tom, Frank, and James are arrested by the police.
Although Frank and James did not perpetrate Hank’s murder, it is likely that they will be found guilty of murder under the rules laid down in R v English and Rahman and Others. They knew that Tom possessed a machete, therefore they foresaw a chance that he might use it to kill someone with intent.
An interesting corollary of these joint enterprise rules is that the crime of murder does not necessarily require an intention to kill. D can be convicted of murder under the joint enterprise rules merely because D foresees that somebody else might kill. This is a very low level of mens rea for such a serious crime. Murder comes with a requirement of intention – the most morally blameworthy form of mens rea – because of the fact that it carries a mandatory life sentence, and yet joint enterprise casts its net around people who merely foresee that a murder might be committed by somebody else.
Those who support the law of joint enterprise argue that this is a necessary evil. The law faces a choice: either it allows the perpetrators of gang violence to escape punishment, or it casts a life sentence on all of them. But the law faces problems with the burden of proof every single day. Consider, for example, how difficult it is to secure a conviction for rape – a crime which commonly occurs in private. Perhaps the same argument could be made to justify lowering the burden of proof in rape trials from “beyond reasonable doubt” to “more likely than not”. By doing so, it would be much easier to lock away genuinely evil rapists, but the law would also end-up catching thousands of innocent men in its net.
Going Beyond what was Foreseen
Since D can only be convicted under the joint enterprise rules if D foresees that E might commit a certain crime, it follows that D cannot be convicted if E carries out a crime which was not foreseen.
In Rafferty (2007) D, E, and F were assaulting a man on a beach with the intention of robbing him. During the course of the attack, D left to withdraw some cash from a cash machine. While D was busy at the ATM, E and F dragged the victim into the sea and drowned him.
The court held that D was not guilty of murder under the joint enterprise rules because he had taken part in a gang attack to assault and rob. He did not foresee that E and F would commit murder. Indeed, murder was of a radically different nature to the crimes he did foresee.
The legal principle demonstrated in Rafferty was enunciated by Toulson LJ in Mendez and Thompson (2010):
It would not be just that D should be found guilty of the murder of V by E, if E’s act was of a different kind from, and much more dangerous than, the sort of acts which D intended or foresaw as part of the joint enterprise.
Withdrawal from Participation
It is possible for any member of the joint enterprise to withdraw from it and avoid liability for any crimes committed after his withdrawal.
In Becerra and Cooper (1975) the Court of Appeal stated that in order to effectively withdraw from a joint enterprise D must serve unequivocal notice that he is withdrawing.
In that case, D and E were engaged in a joint enterprise to commit burglary. During the course of the burglary the upstairs neighbour overheard the commotion and came to investigate. D panicked at this unexpected intrusion and shouted “Come on, let’s go!” before climbing out of the window. E did not heed D’s advice, opting instead to murder the neighbour. The Court of Appeal stated that something vastly different and more effective was required in order to effectively withdraw. D’s intention in shouting “Come on, let’s go!” was merely to avoid getting caught by the neighbour and did not serve unequivocal notice that he was abandoning the joint enterprise.
Similarly, in Baker (1994) the words “I’m not doing it” were not sufficiently unequivocal to effectively withdraw from a joint enterprise. D and E had taken V to some waste ground in order to stab him. D stabbed V three times before handing the knife to E and saying “I’m not doing it”. E continued to stab V dozens of times until he died.
The Court of Appeal stated that D had not served unequivocal notice that he intended to withdraw from the joint enterprise. To the contrary, “I’m not doing it” was the equivalent of saying “I myself will not strike any more blows”.
Is Reform Needed?
The criminal law is based on certain presuppositions:
- No crime without mens rea.
- One can only be punished for the crimes one actually commits.
- Sentences will vary depending on the severity of one’s crime.
Joint enterprise tends to bulldoze its way through these foundations in pursuit of violent gangs.
On the first point – no crime without mens rea – it might be argued that one must have foresight that a particular crime might be committed. This is a very mild form of mens rea relative to intention, but mens rea nonetheless. However, the Committee for the Reform of Joint Enterprise has stated that:
In the majority of joint enterprise cases, prosecutors and the courts focus on D2’s knowledge that the principal has a weapon which turns out to be the murder weapon, and asks the jury to decide whether D2“must have foreseen” that it would be used. Thus, although the standard of D2’s fault is in theory a subjective one, the practical reality of jury trial is that it has become objective. D2 can be convicted of murder, therefore, if the jury think, without more, that he should have known that D1 might kill or seriously injure the victim.
If their submission is true, then joint enterprise does not require proof of mens rea. It is sufficient that D should have foreseen the possibility of E committing murder, but it is not necessary that he actually did foresee it (see the post on recklessness for an in-depth explanation of subjective vs objective mens rea). It is nothing less than a major shock to discover that a person can be sentenced to life imprisonment for a crime as serious as murder even though he had no mens rea whatsoever. We might call it strict liability murder, even though strict liability is generally reserved for incredibly minor offences such as speeding.
The second point – that one may only be punished for the crimes one actually commits – is so obviously trampled by the law of joint enterprise that it requires very little explanation. In Becerra and Cooper (above) D did not murder the victim. The life of the victim was obviously taken by E.
It might be argued that it is morally right that D should have been found guilty in Becerra and Cooper because he had a chance to prevent the murder and failed to do so. But UK law does not generally punish omissions. If you walk past a drowning child and decide not to help, you will not find yourself before the Crown Court on a charge of murder.
Finally, joint enterprise imposes the same sentence on every person who participates in a crime. The case of R v Mitchell (2008) provides a stark example of how the doctrine can be abused:
In Mitchell D and her friends were involved in an aggressive fight in a taxi rank. The fight was so aggressive that the jury found that D must have foreseen a possibility that serious harm, or even death, could result. However, the fight came to an end and D’s friends left the scene. D lingered in the car park looking for her shoes and considered the fight over and done with.
Unfortunately for D, her friends had only left the scene temporarily in order to collect some weapons from a nearby house. When they returned, they murdered the victim while D was still on the scene.
The jury in Mitchell decided that there was one long joint enterprise, starting with the original fight in the taxi rank and ending with the victim’s death. Since D had not given unequivocal notice to her friends that she intended to leave the joint enterprise, she was still considered to be a part of it when they returned to the scene with weapons. And since she had foreseen that death or serious harm might result during the original fight in the taxi rank, she had the required mens rea for murder. She was found guilty of murder.
Few people would argue that D did nothing wrong. Getting involved in a violent assault during a night out is a very serious crime and would usually be dealt with as an offence of actual bodily harm or grievous bodily harm. Both very serious. Both carrying significant sentences to reflect their severity. But by the time her friends came back and murdered the victim, she had ceased her involvement. She did not intend to kill anybody. In essence, she was held responsible for the murderous actions of her friends.
In conclusion, one ought to be very wary of trampling legal safeguards and principles in pursuit of violent criminals. No doubt the law of joint enterprise can help scoop-up wrongdoers and secure justice, but it must also be recognised that it simultaneously scoops-up the wrong people. Is that a price worth paying?
- A joint enterprise involves two or more people embarking on a joint criminal venture.
- All members of that enterprise will be guilty of offences committed during the joint enterprise provided they foresaw a possibility that such a crime might occur.
- Knowledge that another member of the joint enterprise possesses a weapon is considered strong evidence that D foresaw the use of that weapon.
- If one member of the joint enterprise does something which was completely unforeseen by D, or radically different from what was foreseen, then D is not liable.
- It is possible to withdraw from a joint enterprise, but withdrawal requires unequivocal notice.