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Joint enterprise

The Lord Chief Justice is the UK’s most senior judge and has particular responsibility for the administration of criminal justice in the courts. When he suggests that the ‘fiendishly difficult’ law of murder needs reform, you might think that people would sit up and pay attention.

On 6th December 2011 Lord Judge told a press conference: ‘It is sometimes felt that in the long run the complications [in the law] leave a sense of injustice about how an individual case has fitted into the framework overall. I would have thought myself that a careful consideration of reform of the law of murder might reduce the call for the automatic sentence to be removed.’ He also spoke of the difficulties in the legal doctrine of ‘joint enterprise’ which prosecutors use against people who are marginally involved in group violence that leads to a killing.

There is a serious mismatch between the law that allows people who are very remotely connected to a killing to be found guilty of murder, and the law that requires everyone convicted of murder, whether the actual killer or the fringe member of a gang, to be get the same sentence: life imprisonment. One or the other or both must change.

A little legal background. The law distinguishes between ‘principals’ – people who are directly responsible for committing offences, and ‘secondary parties’, who are guilty because they have indirectly participated in a ‘common design’ with the principal but may not have performed the criminal action with him.

But, in practice there are three forms of ‘joint enterprise’ liability:

  1. Where two or more people commit a single crime together, all as joint principals, for example when three robbers together confront bank staff.
  2. Where defendant 2 (D2) aids and abets defendant 1 (D1) to commit a single crime, for example where D2 provides D1 with a weapon for use in a robbery, or acts as getaway driver, or gives encouragement (as, notoriously, with ‘let him have it, Chris’ in the case of Derek Bentley).
  3. Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a second crime (crime B) which D2 had foreseen he might commit.

Common design

The difficulties arise in case 3 and are laid bare when the law deals with group violence that ends in a killing. The classic case would involve a showdown between two gangs of youths. They charge around in a park shouting and waving knives at each other. One gang beats a retreat, however the second gang chase a straggler.  They catch up with him and stab him. He dies on the spot. The killing takes place out of sight of gang member X, who was at the back of the second gang and did not know about the stabbing until afterwards. Now, if he went to park intending to do some violence in the showdown with the first gang, and he foresaw that someone else in his gang might kill or seriously injure another person, then he is guilty of the murder as much as the stabber. The judges have developed the doctrine of joint enterprise to make this possible.

So joint enterprise makes X guilty of murder without intending to kill or seriously injure anyone  – the necessary mental elements that must be otherwise be proved in murder. He did not use a weapon. He did not see the weapon being used. He did not know that a killing had occurred. He is guilty because he joined in another, prior ‘common design’, and foresaw that some one else might kill or cause serious injury.

He will get a life sentence: the minimum time he has to serve before he can be considered for release on licence may be shorter than the actual stabber’s but it is a life sentence nonetheless.

Can a conviction for murder on that basis be justified, and if so should it call for the same sentence as the real killer gets?

Worrying regularity

The meaning and application of joint enterprise in murder cases has occupied the country’s most senior judges in the House of Lords/Supreme Court and the Court of Appeal (Criminal Division) with worrying regularity over the last 20 years, and each time the Court has given subtle but important variations to its statements of what the law is. (For reference, the leading cases are R. v Powell & English (1999) House of Lords; R. v Rahman (2009) House of Lords; Yemoh (2009) Court of Appeal; Mendez (2010), Court of Appeal;  R. v A (2010), Court of Appeal)).

Another case, Gnango (2010, Court of Appeal) shows how far the Courts have been prepared to go and is worth looking at in more detail. Gnango (G) and some one referred to as ‘Bandana Man’ (B) had a gun fight in the street. A shot from B’s gun killed a passerby. Bandana Man ran away. A jury convicted G of murder, having been directed that if they thought G and B had taken part in the joint enterprise of affray (ie the unlawful violence in the gun fight between themselves), and if G realised that B might kill someone by shooting, then G was guilty of murder.

The Court of Appeal unusually assembled five of its most senior judges to hear the appeal (the usual number is three). They decided that the judge’s directions went too far – they thought that the killing by B of the passerby was too far outside the scope of the joint enterprise (G and B to shoot one another) for G to be guilty of her murder. The prosecution appealed to the Supreme Court, including Lord Judge. In a judgment given yesterday (December 4th 2011) they upheld the conviction by a majority of 6-1. They took a broad brush approach, deciding that G and B had chosen to indulge in a gunfight in a public place, each intending to kill or cause serious injury to the other, in circumstances where there was a foreseeable risk that this result would be suffered by an innocent bystander. It was a matter of chance which of the two fired what proved to be the fatal shot.

Gang violence

So liability depends on joining crime A and foreseeing that crime B might occur. That is a very open-ended basis for convicting people. The sheer number of times that joint enterprise has come before the highest appeal Courts clearly suggests that trial judges, and maybe the appeal judges themselves, are having difficulty in formulating and applying the law correctly. If they struggle, what are teenagers who may get caught up in group violence meant to think? You going along for what may be an ugly bit of fighting – perhaps sparked off by an immature row outside the school gate. Things get out of hand and some one pulls a knife – a boy is killed – and you can be found guilty of murder if you foresaw or realised that it might happen. Please note: ‘might happen’; not ‘would happen’. Might happen.

Of course gang violence is a scourge in some places in the UK; and people die pointlessly in gang fights. Their families’ lives are destroyed. There is an undoubted public interest in discouraging and preventing gang violence, and the criminal law has an important role to play. Lord Brown expressed the view in Gnango that the general public would be ‘astonished and appalled if in those circumstances the law attached liability for the death only to the gunman who actually fired the fatal shot (which it would not always be possible to determine)’.

He may well be right – in those circumstances. However, the trouble with the present law is that it allows prosecutors to cast the net too wide in some cases, and to draw in people who on a common-sense view are too remote from the killing to share full responsibility for it. The result is an increased risk that the wrong people end up with convictions for murder. Are we comfortable with a law which, in effect, allows a jury to say: ‘You were there or thereabouts; you were in the gang; you didn’t kill but we think you all must pay?’ When the Lord Chief Justice speaks of a ‘sense of injustice about how an individual case has fitted into the framework overall’ this is not the voice of a wet liberal – as can be shown in the line he takes in Gnango.

If we need to convict people on this basis, shouldn’t we at least allow the sentencer to draw a distinction between the person who has pulled the trigger and his co-defendant who went along and merely foresaw that some one might be killed?

While the life sentence remains the only sentence for all kinds of murder, how can that be just? Andrew Jeffries QC and Kim Evans write about the problems in the one-size-fits-all sentence elsewhere on www.thejusticegap.com (see HERE) focussing on mercy killings getting the same sentence (apart from the tariff) as gangland executions. The same issue arises in joint enterprise – there must be a better and more flexible way of measuring degrees of culpability in sentences.

 

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Francis FitzGibbon QC Posted by on December 15, 2011. Filed under Crime,Prisons. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

4 Responses to Joint enterprise

  1. Nina-g Reply

    December 15, 2011 at 8:11 pm

    A really useful comprehensive analysis Francis, ,many thanks.
    FYI – our written submissions for the SC were extensive and included a full analysis of the most recent Law Commission recommendations on murder reform as well as a detailed anaylsis of analgous federal Supreme Court cases in USA, Canada and New Zealand, where statutory (code) provisions in each jurisdiction allow for forms of reckless murder (usually second degree homicide). Their Lordships chose not to analyse or address any issues arising from all of this, which is disappointing to say the least. However, I suppose no shake up of the law in this area is better than a complete shake up resulting in an even wider net of joint enterprise liability, which is what we had feared …..
    Nina Grahame
    Garden Court North Chambers
    Junior Counsel for Armal Gnango

  2. Andrew Green

    Andrew Green Reply

    December 15, 2011 at 9:25 pm

    Like all lawyers, Francis Fitzgibbon assumes that the problem with the joint enterprise doctrine is that defendants convicted by means of it are all guilty of something, although perhaps not the serious offence with which they are charged (usually murder). But many defendants may be actually not guilty of anything at all. They are convicted because what has to be proved to secure guilty verdicts using joint enterprise doctrine are speculative assumptions about what a defendant may know about what someone else might be capable of doing, Such ‘knowledge’ can be inferred from the presence of a defendant at or near a crime scene, or not even presence – mere contact by mobile phone with someone else present at the scene, for example, or self serving allegations by someone involved in a crime who is threatened with a serious charge. Defence lawyers rarely seem to be aware of how easy it is for the prosecution to secure convictions using such tenuous evidence.
    For those who are engaged in a lesser crime in concert with those who unexpectedly commit a more serious crime, the same easily gained evidence will suffice to convict them of the worse offence. The problem is what is permitted by judges to constitute sufficient evidence for a jury safely to convict, the inferences that juries are invited to draw from such evidence, as well as the law which the judges continue to develop to make it ever easier for prosecutors to secure convictions.

  3. Nicola Blackham Reply

    September 11, 2014 at 5:10 pm

    My nephew Wesley Porter was sentenced to 27yrs under joint enterprise 5years ago for a murder he did not commit, he was nowhere near the scene and the facts of his case are the worst I have ever heard, never would I ever imagine this could possibly happen in our courts such a massive massive error that ripped the heart out of every single person that knows Wesley, justice will be done for Wesley we will not rest until he is home. This law needs serious changes because innocent people are spending their lives in jails living a nightmare and no one will listen……no one cares. Every single person has the right to be heard……surely someone must listen, why would we keep on and on about innocence with no real substance? My nephew is innocent and justice must be done!!!!!!!

  4. DIANE KING Reply

    November 22, 2014 at 5:09 pm

    My daughter is a bit via aux

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