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Resources: Articles/Links/Briefings - on 'Joint Enterprise'
Briefing from Falselyaccused.co.uk
Read this briefing thoroughly, you may have to read it several times before you get your head round it. It will take you through the whole process of a 'Miscarriage of Justice', pointing out the +'s -'s of the UK legal system the hurdles you face over the next few years. You will have already experienced some of it and may before your family member/friend is free experience all of it. Go here for full briefing . . . .
Leading investigative journalist Bob Woffinden reports on joint enterprise prosecutions and argues that the CPS should avoid them and concentrate on establishing the identity of the actual culprit
Joint enterprise is the common law concept that all those engaged in activity that leads to a criminal act are equally culpable of it. The classic situation is that a number of people take part in aggressive behaviour towards someone, who is then fatally struck by one of them; but all are charged with murder.
In ascribing collective responsibility to an action that may have been a result of one individual’s momentary malevolence, joint enterprise has always been highly controversial. It’s rather like maintaining that all members of a football team are equally culpable of a player’s crude tackle that breaks an opponent’s leg. Self-evidently, all the team are engaged in a joint enterprise, so if one player is charged (as has happened in one case lately), why not all of them? Read the full article here . . . .
Case 1: R v Gnango
R v Gnango, Court of Appeal, 26 July 2010. Where a defendant voluntarily engaged in an exchange of gunfire with "B" in a public place amounting to an affray, and in the course of that gunfire B shot and killed a passer-by and the defendant foresaw that in the course of that gunfire B might shoot with intent to kill or do really serious injury, if each party sought to shoot the other but not be shot himself, there was no common purpose and therefore no joint enterprise in the commission of the affray, and accordingly the defendant could not be guilty of the murder of the passer-by by transferred malice on the basis of joint enterprise.
Regina v A and others  EWCA Crim 1622;  WLR (D) 194Court of Appeal: Hughes LJ, Wyn Williams, King JJ: 15 July 2010
Where a murder was committed by a number of defendants acting together recent authority did not establish that the secondary party’s foresight of the principal’s intention was never relevant.
The Court of Appeal (Criminal Division) so held when allowing appeals by the defendants, A, B, C and D, against their convictions of murder
Hughes LJ, delivering the judgment of the court, said that the appeals raised again questions about the concept of common or joint enterprise, and specifically as applied in cases where the charge was murder.
On the facts which the jury must have found, there had been an attack made upon the deceased in his home by three of the defendants, which had been organised by the fourth. No weapon had been involved; the attack consisted of a beating.
The case was put by the Crown as a common enterprise. It was not possible to identify individual acts of violence or to say who had done precisely what.
The judge directed the jury that a defendant was guilty, inter alia, if: “he participated in a plan to assault [the deceased] in which he intended to cause him some harm, less than really serious bodily harm, but realised that there was a real risk that one of the others might cause him really serious bodily harm and such harm was caused, and he did not dissociate himself from the plan.”
It was contended that that passage gave rise to two difficulties: (i) it told the jury that a defendant would be guilty if he participated foreseeing that others might cause the deceased grievous bodily harm (“GBH”); it did not speak of foresight of GBH intentionally being done; and (ii) although it was dealing with possible guilt on the basis of joint enterprise, it nowhere required the jury first to be sure that at least one of the assailants (whether identified or not) had committed murder as a principal.
The defendants submitted that those two features were fatal to the safety of the conviction. The first submission required consideration of the true import of the decision of the House of Lords in R v Rahman  AC 129. In R v Rahman there were observations to the effect that it was foresight of D1’s act rather than of his intent which was crucial.
It was necessary for their Lordships to decide whether those observations meant that R v Rahman was deciding that foresight of the intention of D1 was always irrelevant. If the words of Lord Bingham of Cornhill in para 21 of R v Rahman “The crucial divide between the parties was: foresight of what ? The Crown’s answer, clearly given by [counsel], was: foresight of what the principal might do” were read out of context they might be thought to justify the proposition that foresight of D1’s intention was always irrelevant.
There was no doubt that they should not so be read. There was no indication that R v Rahman meant to alter the well understood previous law and every indication that it did not.
It had to be proved that D2 had foreseen that D1 might (not would) act with intent to kill or to do GBH. R v Rahman was a fundamental departure case. Where in R v Rahman it was said that it was foresight of act rather than foresight of intention that was relevant, that was in relation to the issue of fundamental departure.
It did not mean that foresight of D1’s intention was never relevant. For those reasons, the judge had fallen into error in omitting from his direction to the jury the word “intentionally”. D2 could be guilty of murder on the basis of joint enterprise 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 has foreseen he might commit, only if he participated in the common enterprise of crime A and foresaw that in the course of it D1 (whether identified or not) might (not would) commit murder, i e act with the intention to kill or do GBH.
As to the second submission, it was necessary to remember that guilt based upon common enterprise was a form of secondary liability. The principle was that D2 was implicated in the guilt of D1 not only for the agreed crime A but for the further crime B which he foresaw D1 might commit in the course of crime A. That form of liability therefore arose only where D1 had committed the further crime B. In this case, there had to be murder by somebody (identified or not) before any other participant could be guilty by virtue of the principles of common enterprise and it was not common ground that murder had been committed by anyone.
The “route to verdicts” provided by the judge to the jury nowhere said in terms that D2 could only be guilty if D1 (whoever he was) was guilty of murder. It should have done so.
Accordingly, the convictions of all the defendants were unsafe and had to be quashed.
Appearances: Richard Carey-Hughes QC and Mark Dacey (assigned by the Registrar of Criminal Appeals) for the defendants; Jonathan Higgs and Jonathan Polnay (instructed by the Crown Prosecution Service) for the Crown.
Reported by: Clare Barsby, barrister. Source: http://www.lawreports.co.uk/WLRD/2010/CACrim/R_v_A.htm