JOINT ENTERPRISE
TRIAL ADVOCACY AND RECENT TRENDS IN THE LAW OF COMMON DESIGN.
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Clement F. Joseph, (C) 2016
ORIGIN OF COMMON DESIGN
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The now locus classicus of Joint Enterprise, Jogee, spells out the history of this oft controversial doctrine of criminal law. From paragraphs 4 through 60 gives us an insight into the history of where we came from and how we arrived at where we are today. This is going to be helpful to us in understanding this phenomena. Joint Enterprise is a doctrine of criminal law which permits two or more defendants to be convicted of the same criminal offence in relation to the same incident, even where they had different types of levels of involvement in the incident (Joint Enterprise: Righting a Wrong turn). Clement F. Joseph, (C) 2016
ORIGIN OF COMMON DESIGN
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Archbold 2008, par 18-15 tells us that where two or more persons embark on a joint enterprise each is liable for the unusual consequences if they arise from the execution of the agreed joint enterprise. However if one of the parties in the venture went beyond what was tacitly agreed as part of the common enter[rise the other parties are not liable. The forerunner of legislative interventions came in the form of the UK’s Accessories and Abettors Act 1861, section 8, which stated “Whosoever shall aid, abet, counsel or procure the commission of any indictable offence…shall be liable to be tried, indicted and punished as the principal offender. Clement F. Joseph, (C) 2016
ORIGIN OF COMMON DESIGN
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We see a similar enactment in the Criminal Justice (Administration) Act of Jamaica where section 41 says “Whosoever shall aid, abet, counsel, or procure the commission of any misdemeanor, whether the same be a misdemeanor at common law, or by virtue of any Statute passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender.” This was the same wording that was in the original UK act and was subsequently amended by the Criminal Law Act of 1977 where the word “Misdemeanor” was replaced with “Indictable offence” with the abolition of the difference between misdemeanors and felonies. Clement F. Joseph, (C) 2016
DEVELOPMENT OF JOINT ENTERPRISE
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What are the Actus Reus and Mens Rea of the offence? Well, for D1 that may be clear from the onset. For D2, it would be that D2 encouraged or assisted D1 in the commission of the offence. As for the Mens Rea of D1, the principle of Parasitic Accessory Liability (PAL) was developed when J.C. Smith in the case of R v Powell; R v English, [1997] 4 All ER 545 submitted to the House of Lords he doubted that Joint Enterprise is separate from liability at all. He went on to author Criminal Liability of Accessories: Law and Law Reform, [1997] 113 LQR at 461/2 and coined the now famous doctrine of PAL. In the case of Powell/English, the question to have been certified was ‘Is it sufficient to found a conviction for murder for a secondary party to a killing to have realized that the primary party might kill with intent to do so or must the secondary party have held such intention himself?’ Clement F. Joseph, (C) 2016
DEVELOPMENT OF JOINT ENTERPRISE
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The Court held in the negative and dismissed the appeal. It went on to hold that secondary party to a criminal enterprise may be criminally liable for a greater criminal offence committed by the primary offender of a type which the former foresaw but did not necessarily intend. Lord Steyn said that “Experience has shown that joint criminal Enterprises only too often escalate into commission of greater offences. In order to deal with this important social problem, the accessory principle is needed and cannot be abolished or relaxed.�
Clement F. Joseph, (C) 2016
DEVELOPMENT OF JOINT ENTERPRISE
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However, in Jogee at paragraphs 10 through 12 discussed the idea of intention that Lord Steyn was so concerned about. If a crime requires a specific intent, the D2 must have intended to assist or encourage D1 to effect the crime. So in most occasions, it will that with the assistance and or encouragement, that D2 had the mental element in terms on intention to commit the offence.. However, what is the position where D2 gives intentional assistance or encouragement to D1 to commit an offence, but without D2 having a positive intent that the particular offence will be committed? This may be possible where at the time of the encouragement, it is uncertain what D1 might do. Clement F. Joseph, (C) 2016
DEVELOPMENT OF JOINT ENTERPRISE
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The case gives an example of an arms supplier. Another important distinction drawn was where acts of violence or threatened violence, planned or spontaneous, are encouraged or assisted by supporters who are present with D1 lending him force to what he does. It is fair to say that neither association nor presence is necessary proof of assistance or encouragement; it depends on the facts (R v Coney (1882) 8 QBD 534). Clement F. Joseph, (C) 2016
DEVELOPMENT OF JOINT ENTERPRISE
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In the case of DPP for Northern Ireland v Maxwell, [1978] 1 WLR 1350, D was a member of a terrorist organization. He took part in what he knew was a planned military mission under the instructions of the Organization. He drove some men to a location where he knew they intended to carry out some form of violent attack by some means. He did not know the precise form of the attack. He was held to know that they were intending to carry out a violent attack and intended to assist them to do so. Clement F. Joseph, (C) 2016
DEVELOPMENT OF JOINT ENTERPRISE
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There appear to have been a crack in the armor in R v Spraggett, [1960] Crim LR 840 where A’s conviction was quashed. In that case, three men went to burglarized a sub post office while A waited outside as the other two went inside. During the burglary, the owner of the shop came on the scene and was knocked down. He was convicted of burglary and assault with intent to rob. Lord Parker CJ said that the summing up treated it as a presumption of law that where a person was found to be acting in concert with others to commit burglary, it should be presumed that he was also acting in concert with others to use violence in the course of the crime, whereas the jury had to be satisfied on the evidence that there was such a preconceived intention to use violence.
Clement F. Joseph, (C) 2016
DEVELOPMENT OF JOINT ENTERPRISE
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It was deduced that under the trial Judge’s direction, a burglar who had no intention to do anything to anyone might find himself guilty of murder. But for another 56 years the courts continued to ignore that slight warning. In cases where D1 is carrying a weapon with the knowledge of D2, Professor Glanville Williams in Criminal law, The General Part, 2nd Ed (1961), p 397 stated that “The knowledge on the part of one criminal that his companion is carrying a weapon is strong evidence of a common intent to use violence, but is not conclusive.” Clement F. Joseph, (C) 2016
DEVELOPMENT OF JOINT ENTERPRISE
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Then came the biggest of the biggest – Chan Wing-Siu v R, (1985) Cr App R 236, where the Privy Council fully endorsed PAL. The three Appellants broke into a flat while the occupants, man ad wife were there, with intent to commit robbery. While one held the wife, the other two stabbed the husband. The wife was slashed as the three left the flat. The husband later died of his wounds and all three were convicted with murder of the husband and wounding of the wife. It was submitted on appeal to the PC that foresight of death or Grievous Bodily Harm as a possible consequence of the joint enterprise was a misdirection, and rather the jury should be directed that it should have been proven that they foresaw that one of those consequences would probably result.
Clement F. Joseph, (C) 2016
DEVELOPMENT OF JOINT ENTERPRISE
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The PC rejected that argument and held that a secondary party was criminally liable for acts of the primary offender if the crime was foreseen by him as a possible incident of the criminal unlawful exercise and that it was proven beyond a reasonable doubt that that was so. So with this ruling in 1985, the state of the Law of Joint Enterprise remained that way – foresight is sufficient mens rea for the secondary party to be regarded as guilty of the full offence at common law. Clement F. Joseph, (C) 2016
LOCAL JAMAICAN DECISIONS
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The local courts had no choice to follow Chan Wing-Siu in such decisions a Adams et al v R, where the CoA upheld a conviction where the appellant (rightly at the time) that he should not have been convicted on PAL principle of foresight. I posit that the outcome may have been different today. Christopher Edgehill also saw his appeal dismissed in Edgehill v R, [2012] JMCA Crim 29. We then come to the crème de la crème where in the case of Jogee/Ruddock, where Ruddock was convicted of murder here in MoBay. His co-accused pleaded guilty to murder. In an unsworn statement from the dock, Ruddock denied any involvement in, and any knowledge of the murder.
Clement F. Joseph, (C) 2016
COMMONWEALTH JURISDICTION DECISIONS
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In an a case before the Eastern Caribbean Supreme Court of Appeal out of Dominica, the trial judge in summing up a case of Joint Enterprise directed the jury this way: “If you are sure that he went to that house on the occasion in question intending to take part in a robbery, of its occupants and you are sure that when Laville Francis was shot the No.2 accused was acting together with the gunman for the purpose of robbery, then he too would be guilty of murder even though he did not do the shooting himself because in law providing he was acting in concert in relation to robbery, acting together with the man, in relation to robbery, then the act of the gunman becomes the act of the No.2 accused.“ Was this a material misdirection?
Clement F. Joseph, (C) 2016
COMMONWEALTH JURISDICTION DECISIONS
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In Amogan et al v The State, TT 2006 CA 42, the CoA dismissed an appeal by the appellant that the trial Judge had misdirected the jury on the law of Joint Enterprise: “So in this second scenario, you may convict either accused #1 or accused # 2 of murder if you come to the conclusion that he personally inflicted the fatal injuries on the deceased with a gun with the intention of causing at least really serious bodily injury, or that the other accused inflicted the fatal injuries with a gun, and that the accused realized that the other accused might use a gun with the intention of causing at least really serious bodily injury to the deceased and, nevertheless, continued to participate with the other accused in the venture.�
The Court held that this was a good direction on the state of the law and dismissed the appeal.
Clement F. Joseph, (C) 2016
COMMONWEALTH JURISDICTION DECISIONS
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The CoA decision in Regina v. Ameen Hassan Jogee, [2013] EWCA Crim 1433, rejected the very arguments which was adopted by the PC in relation to Mr. Jogee roughly some 18 months later.
Clement F. Joseph, (C) 2016
THE BEGINNING OF THE END
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Over the years there was much debate among civil groups, parliamentary appointed commissions, judges, lawyers about the problems with PAL. One of the most vocal of these groups was one know as Joint Enterprise, Guilty by Association (JENGbA). This UKbased group was relentless in its pursuit of changing the law. Their website proclaimed “We Won” on the handing down of the decision in Jogee/Ruddock. In Smith & Hogan, 13th Ed, Chp 8.5.4, pg 226/7, there was some criticisms from the authors labelled ‘liability for unforeseen consequences.’ More criticisms continue in 8.5.5 where Joint Enterprise is considered in cases of murder. Where the prosecution cannot clearly identify which defendant delivered the
Clement F. Joseph, (C) 2016
THE BEGINNING OF THE END
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fatal blow, yet all participants would be guilty of murder was considered to be too strict. A strong argument that it violated Art 6 of the ECHR (right to a fair trial) was rejected in Concannon, [2002] Crim LR 211. It can be said that Kirby J was a visionary when he dissented and agreed that to hold D liable for murder on the foresight of a possibility is fundamentally unjust in the case of Clayton, (2008) HCA 58 at 108. In a research publication “Public Survey of the Mandatory Life Sentence for Murder (2010)�, Professors Mitchell and Roberts found that the general public expressed unease with the position above. If the definition of murder requires specific intent, how did foreseeability equate to intent?
Clement F. Joseph, (C) 2016
CURRENT LAW
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“The error was to equate foresight with intent to assist, as a matter of law; the correct approach is to treat it as evidence of intent. The long standing pre Chan Wing-Siu practice of inferring intent to assist from a common criminal purpose which includes the further crime, if the occasion were to arise, was always a legitimate one; what was illegitimate was to treat foresight as an inevitable yardstick of common purpose�. Jogee/Ruddock, par 87, pronounced the above as the correct statement of the law. Clement F. Joseph, (C) 2016
CURRENT LAW
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What happens now as a result of all these cases pre Jogee? Are they amenable to appeal? The PC particularly dealt with that at par 100 by stating that: “the effect of putting the law right is not to render invalid all convictions which were arrived over many years by faithfully applying the law as laid down in Chan Wing-Siu and in Powell and English….it can only be set aside by seeking exceptional leave to appeal to the Court of Appeal out of time. That court has the power to grant such leave, and may do so if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken.” Clement F. Joseph, (C) 2016
CURRENT LAW
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So no longer will foresight be the basis upon which one will be convicted as part of a Joint Enterprise/Secondary Party, but that principle can be used as evidence of intent. It took a long while to right the wrong in a criminal matter, but it has however arrived on time.
Clement F. Joseph, (C) 2016
POST JOGEE/RUDDOCK
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The England and Wales CoA had the occasion to apply Jogee when a no-case submission involving a trial of six defendants for various charges including attempted murder and robbery. He stated at paragraph 11 of the judgment “it must follow that, in order to achieve a conviction, the prosecution would have to produce sufficient evidence to make the jury sure that, at the time the conspiracy to commit robbery was hatched, a defendant knew – as part of the plan – a firearm loaded with live rounds, was to be carried to the scene of the intended robbery and, further, that the defendant (again, at the time he joined in the agreement to rob) intended that the firearm should be used to kill (Mr. Samma) if he resisted the robbers.” Clement F. Joseph, (C) 2016
POST JOGEE/RUDDOCK
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The Court of Appeal at paragraph 22 of the decision, set out clearly what Jogee is ‘saying’. It said “…What has changed is the articulation of the mens rea and the requirement that to prove (in the case of Jogee) the crime of murder it is not sufficient that D2 foresaw D1 might intentionally cause grievous bodily harm or kill if the circumstances arose. What is now required is that D2 intended that D1 cause grievous bodily harm or kill if the circumstances arise. Thus, the evidential requirements justifying a decision that there is a case to answer are likely to be the same even if, applying the facts to the different directions in law, the jury might reach a different conclusion.” The Trial Judge’s no-case submission was overturned and the case continued. R v Anwar and Others, [2016] EWCA Crim 551
Clement F. Joseph, (C) 2016
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The end! Questions/Comments
Clement F. Joseph, (C) 2016