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joint_enterprise [2017/09/29 16:17]
frescom 		joint_enterprise [2017/09/29 16:19] (current)
frescom
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 should be given to a charge under the Serious Crime Act 2007, or a charge of should be given to a charge under the Serious Crime Act 2007, or a charge of
 conspiracy. conspiracy.
 +
 Qualifications on the scope of joint enterprise Qualifications on the scope of joint enterprise
 +
 16. There are two main qualifications that limit the scope of joint enterprise. 16. There are two main qualifications that limit the scope of joint enterprise.
 Persons will not be liable where: Persons will not be liable where:
- P’s act is fundamentally different to that foreseen by D; or + 
- D withdraws from the joint enterprise before the offence is committed.+P’s act is fundamentally different to that foreseen by D; or 
 + 
 +D withdraws from the joint enterprise before the offence is committed.
 Fundamentally different act Fundamentally different act
 +
 17. Where a principal does an act “fundamentally different” from that which 17. Where a principal does an act “fundamentally different” from that which
 was foreseen by D, P will be regarded as going beyond the scope of the joint was foreseen by D, P will be regarded as going beyond the scope of the joint
 enterprise, and D will not be liable for P’s act. enterprise, and D will not be liable for P’s act.
 +
 18. Whether what P did is fundamentally different from anything foreseen by 18. Whether what P did is fundamentally different from anything foreseen by
 D is a question of fact: R v Yemoh [2009] EWCA Crim 930 (paragraph 140). D is a question of fact: R v Yemoh [2009] EWCA Crim 930 (paragraph 140).
 +
 19. The question is determined by the jury: see para 63 R v Rahman for the 19. The question is determined by the jury: see para 63 R v Rahman for the
 appropriate direction to a jury. appropriate direction to a jury.
 +
 20. The court in R v Mendez and Thompson [2010] EWCA Crim 516 20. The court in R v Mendez and Thompson [2010] EWCA Crim 516
 expressed the test as whether P’s act was “of a nature likely to be altogether expressed the test as whether P’s act was “of a nature likely to be altogether
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 and therefore should be considered “in a different league” from what D and therefore should be considered “in a different league” from what D
 intended or foresaw (paragraph 48). intended or foresaw (paragraph 48).
-6/20 +
 Example Example
 +
 D and P intend to inflict really serious harm, by beating V with their D and P intend to inflict really serious harm, by beating V with their
 fists, but P produces a knife that D did not know P was carrying, and fists, but P produces a knife that D did not know P was carrying, and
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 that D either knew of the existence of the knife, or its use was foreseen that D either knew of the existence of the knife, or its use was foreseen
 by D. by D.
 +
 21. The fundamentally different act principle will not apply where the common 21. The fundamentally different act principle will not apply where the common
 purpose is achieved but P commits the offence in a different manner to that purpose is achieved but P commits the offence in a different manner to that
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 murder if P uses a gun to kill rather than a knife, which D had contemplated,​ murder if P uses a gun to kill rather than a knife, which D had contemplated,​
 or vice versa: see R v English and R v Mendez and Thompson. or vice versa: see R v English and R v Mendez and Thompson.
 +
 22. For a detailed summary of the way in which the courts have applied the 22. For a detailed summary of the way in which the courts have applied the
 principle in cases of murder and manslaughter see para 8.5.2.3 of Smith and principle in cases of murder and manslaughter see para 8.5.2.3 of Smith and
 Hogan’s Criminal Law (13th ed, 2011). Hogan’s Criminal Law (13th ed, 2011).
 Withdrawal Withdrawal
 +
 23. D will not be liable for the act of P where D withdraws from the joint 23. D will not be liable for the act of P where D withdraws from the joint
 enterprise before the offence is committed. enterprise before the offence is committed.
 +
 24. However, where D is not liable as a secondary party because of a 24. However, where D is not liable as a secondary party because of a
 withdrawal, he may nevertheless be liable for an inchoate offence, such as withdrawal, he may nevertheless be liable for an inchoate offence, such as
 conspiracy, attempt or an offence under the Serious Crime Act 2007 (see conspiracy, attempt or an offence under the Serious Crime Act 2007 (see
 below). below).
 +
 25. Whether D has withdrawn is a question of fact and degree, will depend on 25. Whether D has withdrawn is a question of fact and degree, will depend on
 the circumstances of each case, and is one for the jury to decide. the circumstances of each case, and is one for the jury to decide.
 +
 26. Factors that may be considered, for instance, are: the nature of the 26. Factors that may be considered, for instance, are: the nature of the
 assistance and encouragement given by D; how imminent the commission of assistance and encouragement given by D; how imminent the commission of
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 and the action that is said to constitute the withdrawal: R v O’Flaherty,​ Ryan and the action that is said to constitute the withdrawal: R v O’Flaherty,​ Ryan
 and Toussaint [2004] 2 Cr. App. R. 20, CA. and Toussaint [2004] 2 Cr. App. R. 20, CA.
 +
 27. R v Stringer [2011] EWCA Crim 1396 makes clear that there may be 27. R v Stringer [2011] EWCA Crim 1396 makes clear that there may be
 cases where any assistance or encouragement provided by D is so distanced cases where any assistance or encouragement provided by D is so distanced
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 spontaneous joint enterprise: where D starts to join in chasing V with hostile spontaneous joint enterprise: where D starts to join in chasing V with hostile
 intent, but quickly thinks better of it and stops, it would be unjust for D to be intent, but quickly thinks better of it and stops, it would be unjust for D to be
-7/20  
 automatically guilty of whatever violence was inflicted on V by others who automatically guilty of whatever violence was inflicted on V by others who
 continued to chase V (paras 52-53). continued to chase V (paras 52-53).
 +
 Prosecuting offences on the basis of joint enterprise Prosecuting offences on the basis of joint enterprise
 +
 28. Prosecutors may only start a prosecution if a case satisfies the Full Code 28. Prosecutors may only start a prosecution if a case satisfies the Full Code
 Test set out in the Code for Crown Prosecutors. This test has two stages: the Test set out in the Code for Crown Prosecutors. This test has two stages: the
 first is the requirement of evidential sufficiency and the second involves first is the requirement of evidential sufficiency and the second involves
 consideration of the public interest. consideration of the public interest.
 +
 29. At the evidential stage, a prosecutor must be satisfied that there is 29. At the evidential stage, a prosecutor must be satisfied that there is
 sufficient evidence to provide a realistic prospect of conviction. This means sufficient evidence to provide a realistic prospect of conviction. This means
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 prosecutor’s assessment of the evidence, including any information that he or prosecutor’s assessment of the evidence, including any information that he or
 she has about the defence. she has about the defence.
 +
 30. A case which does not pass the evidential stage must not proceed, no 30. A case which does not pass the evidential stage must not proceed, no
 matter how serious or sensitive it may be. matter how serious or sensitive it may be.
 +
 31. If the evidential stage is satisfied, prosecutors must then go on to consider 31. If the evidential stage is satisfied, prosecutors must then go on to consider
 the second stage: whether a prosecution is required in the public interest. the second stage: whether a prosecution is required in the public interest.
 The evidential stage applied to joint enterprise cases The evidential stage applied to joint enterprise cases
 +
 32. The evidential stage of the Full Code Test applies in the same way to 32. The evidential stage of the Full Code Test applies in the same way to
 cases involving joint enterprise as it does to all other cases. cases involving joint enterprise as it does to all other cases.
 +
 33. When assessing the sufficiency of evidence in a joint enterprise case a 33. When assessing the sufficiency of evidence in a joint enterprise case a
 prosecutor is likely to ask a number of the following questions: prosecutor is likely to ask a number of the following questions:
- Is there evidence that the defendants acted as joint principals?​ + 
- If not, did D assist or encourage another to commit offence A? +Is there evidence that the defendants acted as joint principals?​ 
- Or, did D assist or encourage P to commit offence A, foreseeing that+ 
 +If not, did D assist or encourage another to commit offence A? 
 + 
 +Or, did D assist or encourage P to commit offence A, foreseeing that
 P might carry out the conduct element of offence B, with the P might carry out the conduct element of offence B, with the
 necessary fault element of offence B? necessary fault element of offence B?
- Was P’s act fundamentally different from what was foreseen by D? + 
- Does D have a viable claim to have withdrawn from the joint+Was P’s act fundamentally different from what was foreseen by D? 
 + 
 +Does D have a viable claim to have withdrawn from the joint
 enterprise? enterprise?
 +
 34. Prosecutors should exercise particular care when assessing the questions 34. Prosecutors should exercise particular care when assessing the questions
 above in cases that involve: above in cases that involve:
- A spontaneous joint enterprise; and + 
- Youths and mentally disordered suspects.+A spontaneous joint enterprise; and 
 + 
 +Youths and mentally disordered suspects. 
 Participation Participation
 +
 35. The live issue in a joint enterprise case is often whether D has participated 35. The live issue in a joint enterprise case is often whether D has participated
 in the venture. This will involve proving that D by words or conduct assisted or in the venture. This will involve proving that D by words or conduct assisted or
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 foresight. Liability does not depend on D being present at the scene of the foresight. Liability does not depend on D being present at the scene of the
 offence. offence.
-8/20 +
 36. Without some participation by D, the following will not satisfy the evidential 36. Without some participation by D, the following will not satisfy the evidential
 stage: stage:
- Mere accidental presence at the scene of an offence. + 
- Association with the principal offender(s). +Mere accidental presence at the scene of an offence. 
- Association with or membership of a group or gang.+ 
 +Association with the principal offender(s). 
 + 
 +Association with or membership of a group or gang. 
 37. The court in R v Stringer addressed the difficulty in defining the evidential 37. The court in R v Stringer addressed the difficulty in defining the evidential
 threshold for participation:​ threshold for participation:​
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 P's act was done with D's assistance or encouragement” (para 51). P's act was done with D's assistance or encouragement” (para 51).
 Presence at the scene of an offence as evidence of participation Presence at the scene of an offence as evidence of participation
 +
 38. Mere accidental presence at the scene of an offence is not sufficient for D 38. Mere accidental presence at the scene of an offence is not sufficient for D
 to be liable as a secondary party. A number of authorities confirm that D must to be liable as a secondary party. A number of authorities confirm that D must
 assist or encourage P in some way. assist or encourage P in some way.
 +
 39. For example, D who stands outside a building while his friend commits a 39. For example, D who stands outside a building while his friend commits a
 burglary cannot be convicted of burglary without proof that he assisted or burglary cannot be convicted of burglary without proof that he assisted or
 encouraged his friend by, for example, acting as a lookout, or waiting to carry encouraged his friend by, for example, acting as a lookout, or waiting to carry
 off the stolen items, even if none in fact emerge. off the stolen items, even if none in fact emerge.
 +
 40. It follows that D’s voluntary and purposeful presence at the scene, 40. It follows that D’s voluntary and purposeful presence at the scene,
 depending on the circumstances of the case, may amount to assistance or depending on the circumstances of the case, may amount to assistance or
 encouragement to P, so as to assist or encourage P’s offence. In such encouragement to P, so as to assist or encourage P’s offence. In such
 circumstances,​ D may be liable as an accomplice. circumstances,​ D may be liable as an accomplice.
 +
 41. However, voluntary presence at the scene will not of course necessarily 41. However, voluntary presence at the scene will not of course necessarily
 amount to assistance or encouragement to P. For instance, in a case of amount to assistance or encouragement to P. For instance, in a case of
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 proof of D’s intent to assist or encourage (see, for example, R v Miah [2004] proof of D’s intent to assist or encourage (see, for example, R v Miah [2004]
 EWCA Crim 63. EWCA Crim 63.
 +
 42. Examples where D’s voluntary and purposeful presence may amount to 42. Examples where D’s voluntary and purposeful presence may amount to
 assistance or encouragement are: assistance or encouragement are:
-9/20 +
 Examples Examples
 +
 1. P rapes V. D1 and D2 hear V screaming and enter the room where 1. P rapes V. D1 and D2 hear V screaming and enter the room where
 the rape is taking place. They do not provide direct physical assistance, the rape is taking place. They do not provide direct physical assistance,
joint_enterprise.1506701841.txt.gz · Last modified: 2017/09/29 16:17 by frescom

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