Joint Enterprise: The jurisprudential maze

As a law student joint enterprise seemed simple enough: those acting with a common intention or purpose could be held jointly liable for their actions. As a practitioner, I quickly learnt how wrong I was to marginalise the concept of joint enterprise in criminal law.

Joint enterprise is complicated for a practitioner, but even more perilous for the lay defendant, particularly when unrepresented in a police station. With an increasing volume of case law on the subject, representation at the police station is vital.

Like conspiracy, joint enterprise can apply to all types of crime, from theft to murder. It is fundamental that defendants have a better grasp of its meaning if they are to survive the pitfalls of cross examination and the pressure of criminal trial.

I am often bombarded with questions about my work, and when it comes to joint enterprise most people are as confused as the defendant; How can I be guilty if I didn’t do it?  Joint enterprise does not necessarily require a person to take positive action to bring about the end result, only to participate in the overall conduct.

What then is participation?  Participation includes (but is not limited to) the following scenarios:

1. D did the act deliberately realising that it was capable of assisting the offence,
2. D at the time of doing the act contemplated the commission of the offence by A i.e. he foresaw it as a “real or substantial risk” or “real possibility,” and
3. D when doing the act intended to assist A in what he was doing.

How far does this doctrine go? Its far researching implications were brought under scrutiny in the judgment handed down by the Supreme Court in R v Gnango [2011] UKSC 59.  In that case the complainant was killed by a single shot to the head. She had been caught in the cross fire between two gunmen in a car park. Scientific examination evidenced that one of the gunmen had fired the fatal shot. Their Lordships in establishing liability in this case undertook a reanalysis of what is commonly referred to the ‘Transferred Malice Rule’.  Consequently, they found that the gunman who had not fired the fatal shot, had nonetheless been a party to murder.  Therefore, in the context of a gunfight, where a bullet intended for one of the gunmen actually fatally injures an innocent bystander, both gunmen share the transferred malice liability of that bystander’s attacker. His Lordship stated that the gunmen “had chosen to indulge in a gunfight in a public place, each intending to kill or cause serious injury to the other, in circumstances where there was a foreseeable risk that this result would be suffered by an innocent bystander.”

This judgement begs the question, that if you can be party to an enterprise where the purpose of that enterprise is your own demise and death, how far is the ambit of joint enterprise and can it be curtailed by appropriate statutory intervention. The key message to take from this is that criminal liability may well be established by the company you keep and not the actions you take.

This article was written by Kinneri Patel who is a member of our criminal defence team.