Parliamentary Intervention On Joint Enterprise Murder

Article by Anthony Few, pupil at 6 Kings Bench Walk

1. In a recent report, "Joint Enterprise1" the Commons Justice Select Committee recognised particular problems with the operation of the common law doctrine of joint enterprise and murder. The Committee was sympathetic to criticism of the complexity, lack of clarity, and inconsistent application of the doctrine, and recommended statutory reform. The operation of the doctrine and murder is particularly important because a conviction carries the highest sentence in the English penal system, mandatory life imprisonment.

   Liability

2. Joint enterprise is a parasitic form of secondary liability that arises with the commission of collateral offences during the course of a criminal venture.

3. The common law doctrine of joint enterprise murder is set out in Powell and Daniels [1999] 1 A.C.1. If D1 and D2 had a common intention to commit crime A, where D1, as an incident of committing crime A, committed a collateral crime (crime B) involving fatal violence, if D2 had foreseen the possibility that D1 might do so intentionally, then D2 is complicit and shares criminal liability for murder.

4. Two defences are available. The first is that the defendant had made a clear and unambiguous withdrawal before the incidence of violence took place. The second is the fundamentally different rule. This rule states that if the escalation of violence supersedes what was foreseen, it takes it outside the scope of any initial agreement (See Rahman [2008] UKHL 45).

   Policy

5. It is notorious that a high proportion of homicides are not committed single-handed2. Criminal law needs a coherent theory for punishing complicity when a criminal venture leads to fatal violence.

6. The rationale can be summarised as this:

   (i) Those who engage in criminal activity aware of the risk of serious violence must be held accountable. Engagement when aware of the risk of violence, implicitly or explicitly encourages it.

   (ii) It would be unacceptable for D2 to avoid liability for collateral offences of violence for lack of intent, when he has consciously accepted the risk of serious violence.

7. There are also practical evidential considerations for the doctrine. Without a doctrine of complicity, there is a danger that enrolling other participants in a criminal enterprise could protect the perpetrator by creating collective immunity. If only the perpetrator can be liable, an evidential deficit could limit the courts ability to identify his role from...