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joint_enterprise [2017/09/29 16:13] frescom |
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1. The guidance sets out how charging decisions are to be approached in | 1. The guidance sets out how charging decisions are to be approached in | ||
cases involving joint enterprise. In particular, it addresses: | cases involving joint enterprise. In particular, it addresses: | ||
+ | |||
Application of the Full Code Test to cases involving joint enterprise. | Application of the Full Code Test to cases involving joint enterprise. | ||
The use of evidence of presence and association in proving | The use of evidence of presence and association in proving | ||
participation in a joint enterprise. | participation in a joint enterprise. | ||
- | The principles to be applied when selecting charges that involve | + | |
+ | The principles to be applied when selecting charges that involve | ||
principal, secondary and inchoate liability. | principal, secondary and inchoate liability. | ||
- | The approach to charging group assaults, including cases of murder | + | |
+ | The approach to charging group assaults, including cases of murder | ||
and manslaughter. | and manslaughter. | ||
- | Charging offences under the Serious Crime Act 2007. | + | |
+ | Charging offences under the Serious Crime Act 2007. | ||
2. Insofar as this guidance attempts to set out the law on secondary liability, | 2. Insofar as this guidance attempts to set out the law on secondary liability, | ||
what it sets out is the Crown Prosecution Service’s understanding, which does | what it sets out is the Crown Prosecution Service’s understanding, which does | ||
not have the force of law. | not have the force of law. | ||
+ | |||
Concerns | Concerns | ||
+ | |||
3. Concerns about the application of the doctrine of joint enterprise resulted in | 3. Concerns about the application of the doctrine of joint enterprise resulted in | ||
a House of Commons Justice Committee inquiry in 2011-12. The Committee | a House of Commons Justice Committee inquiry in 2011-12. The Committee | ||
published its report in January 2012, which recommended that the DPP issue | published its report in January 2012, which recommended that the DPP issue | ||
- | 2/20 | ||
guidance on the use of the doctrine when charging, including the relationship | guidance on the use of the doctrine when charging, including the relationship | ||
between association and complicity. | between association and complicity. | ||
+ | |||
The doctrine of joint enterprise | The doctrine of joint enterprise | ||
+ | |||
4. Courts and academics have expressed different opinions on the meaning of | 4. Courts and academics have expressed different opinions on the meaning of | ||
the common law doctrine of joint enterprise. Although some academics | the common law doctrine of joint enterprise. Although some academics | ||
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cases where those involved share a common purpose to commit crime X, and | cases where those involved share a common purpose to commit crime X, and | ||
cases where there is no shared purpose. | cases where there is no shared purpose. | ||
+ | |||
5. Joint enterprise can apply where two or more persons are involved in an | 5. Joint enterprise can apply where two or more persons are involved in an | ||
offence or offences. The parties to a joint enterprise may be principals (P) or | offence or offences. The parties to a joint enterprise may be principals (P) or | ||
secondary parties (accessories / accomplices) (D). | secondary parties (accessories / accomplices) (D). | ||
+ | |||
6. A principal is one who carries out the substantive offence i.e. performs the | 6. A principal is one who carries out the substantive offence i.e. performs the | ||
conduct element of the offence with the required fault element. | conduct element of the offence with the required fault element. | ||
+ | |||
7. A secondary party is one who assists or encourages (sometimes referred to | 7. A secondary party is one who assists or encourages (sometimes referred to | ||
as “aids, abets, counsels or procures”) P to commit the substantive offence, | as “aids, abets, counsels or procures”) P to commit the substantive offence, | ||
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prosecuted and punished as if he were a principal offender: s8 Accessories | prosecuted and punished as if he were a principal offender: s8 Accessories | ||
and Abettors Act 1861. | and Abettors Act 1861. | ||
+ | |||
8. Secondary liability principles can be applied to most offences. The | 8. Secondary liability principles can be applied to most offences. The | ||
principles remain the same, whichever offence they are applied to. The | principles remain the same, whichever offence they are applied to. The | ||
principles are commonly used in offences of violence, theft, fraud and public | principles are commonly used in offences of violence, theft, fraud and public | ||
order. | order. | ||
+ | |||
9. A joint enterprise may or may not be pre-planned. Sometimes a jointly | 9. A joint enterprise may or may not be pre-planned. Sometimes a jointly | ||
committed crime occurs spontaneously. The applicable law is the same in | committed crime occurs spontaneously. The applicable law is the same in | ||
either case: R v Mendez and Thompson. | either case: R v Mendez and Thompson. | ||
+ | |||
Example | Example | ||
People in a crowd of demonstrators suddenly start attacking a person | People in a crowd of demonstrators suddenly start attacking a person | ||
who shouts abuse at them. | who shouts abuse at them. | ||
+ | |||
Three types of joint enterprise | Three types of joint enterprise | ||
+ | |||
10. In R v ABCD the Court of Appeal identified three ways in which a joint | 10. In R v ABCD the Court of Appeal identified three ways in which a joint | ||
enterprise would usually operate, recognising that the scenarios may in some | enterprise would usually operate, recognising that the scenarios may in some | ||
cases overlap (para 7): | cases overlap (para 7): | ||
- | 3/20 | + | |
(1) Where two or more people join in committing a single crime, in | (1) Where two or more people join in committing a single crime, in | ||
circumstances where they are, in effect, all joint principals | circumstances where they are, in effect, all joint principals | ||
+ | |||
Examples | Examples | ||
+ | |||
1. P1 and P2 agree to commit a robbery. Each plays a part in carrying | 1. P1 and P2 agree to commit a robbery. Each plays a part in carrying | ||
out the conduct element: together they attack and take money off | out the conduct element: together they attack and take money off | ||
security men making a cash delivery. Both are liable for robbery as | security men making a cash delivery. Both are liable for robbery as | ||
joint principals. | joint principals. | ||
+ | |||
2. P1 and P2 go on a shoplifting spree together, both taking goods out | 2. P1 and P2 go on a shoplifting spree together, both taking goods out | ||
of shops without payment. They are joint principals. | of shops without payment. They are joint principals. | ||
+ | |||
3. P1 and P2 break into a house and they both help themselves to | 3. P1 and P2 break into a house and they both help themselves to | ||
items of the owner’s property. P1 and P2 are both guilty of burglary as | items of the owner’s property. P1 and P2 are both guilty of burglary as | ||
principal offenders. | principal offenders. | ||
+ | |||
In these cases each player has performed all the elements of the offence | In these cases each player has performed all the elements of the offence | ||
(robbery or theft) in his own right. Little difficulty or controversy arises in | (robbery or theft) in his own right. Little difficulty or controversy arises in | ||
respect of the liability of P1 and P2 in such cases. | respect of the liability of P1 and P2 in such cases. | ||
+ | |||
(2) Where D assists or encourages P to commit a single crime | (2) Where D assists or encourages P to commit a single crime | ||
In this scenario, P, with the fault element, carries out the conduct element | In this scenario, P, with the fault element, carries out the conduct element | ||
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need to be present at the scene of the offence. Both are liable for the offence. | need to be present at the scene of the offence. Both are liable for the offence. | ||
P is liable as a principal. Ds liability as a secondary party is based on proving: | P is liable as a principal. Ds liability as a secondary party is based on proving: | ||
- | P’s commission of the offence, although P need not be identified, | + | |
+ | P’s commission of the offence, although P need not be identified, | ||
charged or convicted. (Note that where the offence is committed | charged or convicted. (Note that where the offence is committed | ||
through the medium of an innocent agent, such as a child or any other | through the medium of an innocent agent, such as a child or any other | ||
person who is not criminally responsible, the person who incites the | person who is not criminally responsible, the person who incites the | ||
crime is liable as a principal.) | crime is liable as a principal.) | ||
- | D giving assistance or encouragement to P: R v Clarkson [1971] 1 | + | |
+ | D giving assistance or encouragement to P: R v Clarkson [1971] 1 | ||
WLR 1402; R v Jones and Mirrless (1977) 65 Cr. App. R. 250, CA. | WLR 1402; R v Jones and Mirrless (1977) 65 Cr. App. R. 250, CA. | ||
- | D’s intent to assist or encourage: R v Clarkson; R v Jones and | + | |
+ | D’s intent to assist or encourage: R v Clarkson; R v Jones and | ||
Mirrless. | Mirrless. | ||
- | D’s knowledge of the essential elements of P’s offence: Johnson v | + | |
+ | D’s knowledge of the essential elements of P’s offence: Johnson v | ||
Youdon [1950] 1 K.B. 544, DC. The courts have interpreted | Youdon [1950] 1 K.B. 544, DC. The courts have interpreted | ||
knowledge broadly in this context. It has been held to include belief, | knowledge broadly in this context. It has been held to include belief, | ||
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committed. See para 8.4.2.2 of Smith and Hogan’s Criminal Law (13th | committed. See para 8.4.2.2 of Smith and Hogan’s Criminal Law (13th | ||
ed, 2011) for a detailed commentary. | ed, 2011) for a detailed commentary. | ||
+ | |||
Examples | Examples | ||
+ | |||
1. P and D commit a burglary. P alone enters as a trespasser and | 1. P and D commit a burglary. P alone enters as a trespasser and | ||
steals from the premises. D assists or encourages P by driving P to | steals from the premises. D assists or encourages P by driving P to | ||
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to commit burglary. Both are liable for the burglary, P as the principal, | to commit burglary. Both are liable for the burglary, P as the principal, | ||
D as an accomplice. | D as an accomplice. | ||
- | 4/20 | + | |
2. D and P assault V causing ABH. D and P approach V. P punches V, | 2. D and P assault V causing ABH. D and P approach V. P punches V, | ||
causing injuries that amount to ABH. D shouts encouragement to P | causing injuries that amount to ABH. D shouts encouragement to P | ||
during the assault. P is liable as a principal; D is liable as an | during the assault. P is liable as a principal; D is liable as an | ||
accomplice, for assisting and encouraging P. | accomplice, for assisting and encouraging P. | ||
+ | |||
3. D provides P with a weapon so that P can use it in a robbery. P is | 3. D provides P with a weapon so that P can use it in a robbery. P is | ||
liable as a principal; D is liable as an accomplice. | liable as a principal; D is liable as an accomplice. | ||
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course of it P commits a second crime (crime B) which D had foreseen | course of it P commits a second crime (crime B) which D had foreseen | ||
he might commit | he might commit | ||
+ | |||
In this scenario, D may act as a principal or an accessory to crime A. D is also | In this scenario, D may act as a principal or an accessory to crime A. D is also | ||
liable for crime B, as an accessory. It is not necessary that D wants or intends | liable for crime B, as an accessory. It is not necessary that D wants or intends | ||
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case law in this area involves cases of murder and manslaughter, although | case law in this area involves cases of murder and manslaughter, although | ||
the principles are applicable to other offences. | the principles are applicable to other offences. | ||
+ | |||
Examples | Examples | ||
+ | |||
1. D and P carry out a burglary (offence A). P acts as principal, | 1. D and P carry out a burglary (offence A). P acts as principal, | ||
entering the premises and stealing. D assists or encourages P by | entering the premises and stealing. D assists or encourages P by | ||
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UKHL 45; R v Yemoh [2009] EWCA Crim 930; R v Mendez and | UKHL 45; R v Yemoh [2009] EWCA Crim 930; R v Mendez and | ||
Thompson [2010] EWCA Crim 516. | Thompson [2010] EWCA Crim 516. | ||
+ | |||
2. As in example 1 above, except that D only foresees that P might | 2. As in example 1 above, except that D only foresees that P might | ||
commit an unlawful act (use unlawful force) with intent to cause some | commit an unlawful act (use unlawful force) with intent to cause some | ||
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is liable for manslaughter: R v Rahman; R v Yemoh; R v Carpenter | is liable for manslaughter: R v Rahman; R v Yemoh; R v Carpenter | ||
[2011] EWCA Crim 2568. | [2011] EWCA Crim 2568. | ||
+ | |||
11. Note that where two people are jointly indicted for the commission of a | 11. Note that where two people are jointly indicted for the commission of a | ||
crime and the evidence does not point to one rather than the other, and there | crime and the evidence does not point to one rather than the other, and there | ||
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causing or allowing the death or serious injury of a child under the age of 16 | causing or allowing the death or serious injury of a child under the age of 16 | ||
or of a vulnerable adult. | or of a vulnerable adult. | ||
- | 5/20 | + | |
Transferred malice | Transferred malice | ||
+ | |||
12. The principle of transferred malice is often explained by reference to | 12. The principle of transferred malice is often explained by reference to | ||
offences of violence: if D intends to kill or do really serious bodily harm to V1, | offences of violence: if D intends to kill or do really serious bodily harm to V1, | ||
but by mistake kills V2 instead, he is guilty of murder of V2. | but by mistake kills V2 instead, he is guilty of murder of V2. | ||
+ | |||
13. The doctrine applies to secondary parties: D intentionally assists or | 13. The doctrine applies to secondary parties: D intentionally assists or | ||
encourages P to murder V1 but P, intending to kill V1, mistakenly kills V2 | encourages P to murder V1 but P, intending to kill V1, mistakenly kills V2 | ||
instead. D is guilty of the murder of V2. | instead. D is guilty of the murder of V2. | ||
+ | |||
14. In R v Gnango [2011] UKSC 59 the Supreme Court used a combination of | 14. In R v Gnango [2011] UKSC 59 the Supreme Court used a combination of | ||
the common law principles of secondary liability and the common law doctrine | the common law principles of secondary liability and the common law doctrine | ||
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serious injury, or as an accessory to the act of firing the fatal shot (paras 60- | serious injury, or as an accessory to the act of firing the fatal shot (paras 60- | ||
62). | 62). | ||
+ | |||
15. Transferred malice will not apply where P deliberately selects a different | 15. Transferred malice will not apply where P deliberately selects a different | ||
victim from that foreseen by D. However, in such situations, consideration | victim from that foreseen by D. However, in such situations, consideration |