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joint_enterprise [2017/09/29 16:13]
frescom
joint_enterprise [2017/09/29 16:17]
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
joint_enterprise.txt · Last modified: 2017/09/29 16:19 by frescom