Joint Enterprise

Olliers’ Connor Brylczak considers what constitutes joint enterprise and explores the issues of secondary liability.

When there are offences involving two or more people, the parties may be considered principals or secondary parties, otherwise known as accessories. Each offence will have at least one principal individual; however, it is not always the case that the principal is identified. A principal member is one who carries out the offence and a secondary is an individual who assist the principal member. Section 8 of the Accessories and Abettors Act 1861 outlines that a secondary party can be prosecuted like they were a principal member. Secondary liability can be applied to the majority of offences.

What is Joint Enterprise?

The Supreme court in R v Jogee stated that if two people set out to commit an offence, if Person A committed that offence, then Person B would also be guilty of that offence if they foresaw Person A acting in that way.

The following are three main examples of offences involving multiple parties:

1. Two or more people jointly commit a single offence where they are joint principals
   An example of this would be all individuals breaking into a house and all of them steal property within the house. This would be a joint burglary.
2. Person B assists Person A in committing a offence
   An example of this would be Person A breaking into a house and stealing belongings and Person B assisted Person A in getting to and from the house. Both could be charged with burglary.
3. Person A and B commit an offence together and during this offence, Person A commits another offence
   An example of this would be Person A committing a burglary and Person B assists them by taking them to and from the house. Whilst inside, Person A is disturbed the homeowner and subsequently mills them. Person B could be liable for murder if it was intended the other offence should be committed. If Person B intended for something less than serious harm to be caused then they could be liable for manslaughter.

Secondary Liability in Joint Enterprise

R v Jogee also set out the principles for secondary liability. In a secondary liability case, the main issue is whether Person B actively encouraged or assisted Person A with the relevant intention. This is often established either through words or actions. R v Jogee outlined that Person B being associated with Person A and/or Person B being present at the scene is not enough to show participation.

If it cannot be established whether a party was a principal part or a secondary party, it must be established that they at least took part in the commission of the offence. Person B must actively encourage or assist Person A in order to have the relevant actus reus. It is not necessary to show that the assistance or encouragement played a part in Person A’s conduct. For example, if Person A is part of a large group, the assistance and/or encouragement of each individual member does not need to be shown to have had a positive impact on Person A’s conduct.

It does not need to be proven that Person A and Person B agreed to carry out the offence. Therefore, if Person B, joins a group and believing that some form of violence is going to be carried out, if death results then a jury may conclude that Person B actively assisted or encouraged that violence and subsequent death and therefore they could also be charged with murder.

Prior to R v Jogee, the two main qualifiers that limited Person B’s liability were:

1. Person A acts “fundamentally different” to that foreseen by Person B
2. Person B withdraws from the joint venture before the offence is committed

Withdrawal is not considered in R v Jogee so it is a question of fact as to whether there was anything said or done by Person B has faded into the background.

Intention in Joint Enterprise Cases

Person B must encourage or assist the commission of a crime and have knowledge of any facts that show Person A’s conduct criminal character. For example, for Person B to be guilty of a sexual offence against a child under 13, they must know that the child was under that age but Person A does not need to know in order to be charged with the offence. This is the same for all offences where no mens rea is required.

If the offence Person A is charged with requires intent, then Person B must encourage Person A to act with that intention. For example, if Person B assists Person A in taking a vehicle and they believe the vehicle will be returned at a later time but, Person A subsequently keeps the vehicle and does not return it, Person B would not be guilty of Theft as he did not have any intention to permanently deprive the owner of their vehicle.

Intention may also take the form of Person B giving Person A the means to carry out violence. For example, if Person B supplies Person A with a weapon, it could be concluded that despite Person B not knowing what Person A plans to do with the weapon and when they plan to carry out the violence they could still be charged with the same offence as Person A.

Murder and Joint Enterprise

In cases of murder, Person B would be charged with manslaughter instead if they had no intention on causing serious harm or death but the violent attack caused this or;

Person B assists in an unlawful act where reasonable people would realise there would be some harm, but death was caused.

Transferred Malice

If Person A intends to kill or seriously harm Victim A but instead kills Victim B, then they will be guilty of murder. If Person B assisted Person A to murder Victim A but Victim B is mistakenly murdered, then Person B will still be guilty of murder. If Person A deliberately selects a different victim and that was not intended by Person B then transferred malice will not apply.

R v Morgan upheld that in the case of a shootout, the parties involved will be guilty of the murder of the individuals who are killed, regardless of if intended or not.

Weapons

Typically, Person B assists or encourages Person A to carry out violence regardless of the weapon used. However, if the situation is that a different weapon is used than the one Person B believed would be used, this does not reduce their liability if it can be shown that the weapon choice played no part in Person B’s decision as to whether to assist. R v Johnson and others confirmed that knowledge of a weapon remains highly material and under the law explained in R v Jogee, it would not be necessary to show a particular knowledge of a weapon where the common goal was to cause serious violence.

Evidential stage of Joint Enterprise

1. Is there evidence that the defendants acted as joint principals
2. If not, did Person B assist or encourage Person A to commit the offence with the same mens rea at Person A
3. Or, did Person B assist or encourage Person A to commit the offence with the intent or conditional intent that offence B should be committed if the situation arose
4. Does Person B have a viable claim to have withdrawn from the joint venture
   Was Person A’s action an overwhelming supervening act which nobody in Person B’s position could have foreseen
5. When death or a violent assault occurs as a result of a group action, the Crown Prosecution Service will seek to determine the role played by each individual.

In multi handed assault cases where death occurs, it often cannot be established who dealt the blow that proved fatal. R v Jogee confirmed that it is not imperative to show whether an individual is a principal or not, as long as they are one or the other. It is only required to show that someone within the group caused death.

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