19th February 2016

You may have seen there has been a lot of media coverage since yesterday about a change in the law about “joint enterprise”. This article hopefully helps to explain what has happened. If you think you have been or may be affected by this issue or this judgement and want to discuss it then please do give our criminal defence team a call on 0191 568 1111 or email advice@benhoarebell.co.uk.

On 18th February the Supreme Court handed down an important judgement about this area of law. It related to two appeals against convictions for murder but has wide potential application and consequences. Whilst these two cases (and many others considering this issue) both involved convictions for murder it is important to note that the principles explored and established do not just relate to murder but to all criminal offences.

The issue in both cases was whether the appellant had been properly convicted of murder when he was not the person who committed the act that led to the death. This is often referred to as “joint enterprise”. The appeal judgement made it clear that to refer to this issue as joint enterprise is not always correct. Joint enterprise refers to nothing more or less than the position where two or more people were involved in a crime together. In fact what this appeal related to was the responsibility of different parties to a criminal offence including where the actions of two or more people gave rise to two or more different offences depending on their respective roles.

This issue has been troubling the courts and lawyers for a number of years. The basis of the appellant’s arguments was not so much that the convicting courts had applied the law incorrectly but that the law was itself incorrect. The law in this area has developed by common law; law based on judgements of the court that are binding on other courts rather than laws made by parliament. The appellants argued that two cases dating back to 1985 and 1999 which were applied and considered in their cases (and many others) had themselves been decided incorrectly and taken a “wrong turn” from the preceding case law and decisions.

In any criminal offence it is possible for there to be principal offenders/participants (e.g. the person who stabs the victim, the person who creates the forged document) and secondary offenders/participants (e.g. the person who is present and makes threats and encourages the stabbing, the person who hands over the pen).

In this appeal it was successfully argued that the law as it had been applied in those 1985 and 1999 cases (and followed since then) was wrong. Those 1985 and 1999 cases said that for a secondary party to be equally guilty of a criminal offence as the principal all that was needed was for the secondary party to foresee the possibility that the principal may commit that offence. In some cases that even led to the odd position that the threshold for finding the secondary party guilty of that offence was lower than the threshold for finding the Principal guilty. The Supreme Court has now decided that was incorrect and stated that for the secondary party to be guilty of the same offence as the Principal, the secondary party must intend to encourage or assist the Principal in committing that criminal offence.

This judgement may well effect a whole range of cases including where the secondary party says they were completely innocent of any intention to commit or any intention to assist or encourage the commission of any offence or where they say they may have had an intention to commit (or assist or encourage the commission of) a different offence to the one that was in fact committed by the principal.

What is made very clear by the Court in this judgement however is that certain well established principles and laws that are related to the central issue in this appeal are not affected by this judgement. So:

  1. People who are jointly responsible for a crime are all guilty of it whether as principals or secondary parties as long as it is proved that each defendant either did it him/herself or intentionally assisted or encouraged it (e.g. the two defendants convicted of burglary where only one went into the house but the other assisted in getting through the locked door and then remained outside “keeping watch” to warn if the police came or the home owners returned).
  2. A secondary party who joins in a crime may well be not guilty of the same criminal offence committed by the principal but still be guilty of a different offence often involving some of the same elements (e.g. the secondary party may be guilty of manslaughter where the principal is guilty of murder)
  3. That a jury or court can properly infer that a person who is identified as a secondary person did intend to assist or encourage the commission of the specific offence by the principal and this may be inferred from the secondary party’s behaviour and actions but also taking into account what the secondary party did foresee (which again could be inferred from his actions and behaviour).

No doubt people will have varying views about what has happened in this appeal and whether it is right or not and will be interested to know the likely impact on future cases and the possibility of it leading to successful appeals in other previous cases. It may well be that convictions following the application of those 1985 and 1999 cases are now considered to be unsafe but not everyone by any means. There may still have been compelling evidence for the jury or court to find that the secondary party was guilty of the same offence as the Principal and if so the conviction would still be safe. This change in interpretation does not mean that those who the court decide intended the particular criminal offence to be committed will escape responsibility. It does mean that where the evidence falls short of showing that a person intended that the crime be committed or was actually party to that crime being committed, their case is likely to be analysed in a different way than has been the case for some time. Remember though that the court and jury can very often take a large and varying amount of different evidence into account in determining what someone’s intention was. Sometimes that may well include considering how foreseeable it was that another would commit a particular offence so the issue of foreseeability is still likely to come into play in future cases where appropriate.

If you have been convicted of an offence as a secondary party or told you were convicted on the basis of “joint enterprise” and you think the decision was made on the basis of foreseeability of the offence being committed rather than intention, you may want to consider whether you want to ask the court to look at the conviction again. If you decided to do that you would be appealing against the conviction. This is not always an easy process and particularly if some time has passed since the conviction. There are timescales within which appeals against conviction should ordinarily be lodged which are generally very shortly after the conviction (and which vary depending on the court that convicted). In appropriate circumstances it is possible to apply for leave from the court to appeal against a conviction outside those normal time limits. In general terms though the sooner a person acts the better and if there is no good or compelling reason to allow an appeal to be made out of time or later out of time than it should have been made then it may not be allowed.

Remember whilst this appeal and many of the other headline cases in this area relate to cases of murder the principles are not restricted to those cases and apply to all criminal offences.

If you think you may be effected by the decision in this appeal or want to discuss an ongoing or previous case please do contact our criminal defence team on 0191 568 1111 or email advice@benhoarebell.co.uk.

Blog by Kate Meek, Partner and Head of the Criminal Law Department