On the 18th February 2016 the Supreme Court delivered a judgement on the legal doctrine of “Joint Enterprise” which the tabloids, and other publications that should have known better, have predicted will lead to a rush of applications to the Court of Appeal.
The principle of Joint Enterprise is long established in law and founded in common sense. It is, in simple terms, the principle that if two or more people are “in it together” when they commit an offence then all are guilty of an offence. The commonly used example is where a gang commit a bank robbery the man who sits with the engine running in the getaway car is guilty of robbery even though he did not enter the bank, did not take any of the money and was not physically present when the offence occurred. The fact that he assisted the principals with the intent that the bank should be robbed will suffice for his conviction. If the man in the bank takes it into his head to shoot three or four citizens who are cashing cheques then the man in the car would not be guilty of murder if he was not expecting the killings, as he would not have the requisite intent for murder – that the victims should be killed or suffer grievous bodily harm. Plainly if the plan was that no one should escape the bank alive then he would have such an intent and would be guilty of the murder or murders that ensued.
A problem arose in the 1980s and 1990s where the House of Lords said, in a series of cases, that it was sufficient to convict a secondary party if he assisted the principal and that it was “foreseeable” that the killer would commit the offence that was subsequently committed. Thus it would be possible for our driver who had merely gone to the bank to commit a robbery to be convicted of the murder that ensued because it was one of the foreseeable consequences of his colleague entering the branch with a shotgun. In effect the mental element for the secondary party was lower than that of the principal as the principal needs to intend to kill or seriously injure whereas the secondary party (the man in the car) need only foresee the killing as a possibility. This is the anomaly corrected in the case of Jogee. The Supreme Court have removed the concept of foreseeability and returned to the principle that the secondary party must intend (or for certain offences be reckless) that the offence should take place and assist or encourage its commission.
There may well be hundreds of people in cells across the country imbued with false hope that their joint enterprise conviction will be overturned as a result of this judgment but only a fraction of joint enterprise convictions depended on foreseeability of the actions of the principal. In most cases of this type the secondary party is present and actively assisting in the offence. If they know what is happening, intend for it to happen and lend assistance or encouragement to its happening then they are guilty of the offence and rightly so!