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joint_enterprise [2017/09/29 16:17] 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, |