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The old age echoes of Joseph Rudyard Kipling in Tomlinson “For the sin ye do by two and two ye
must pay for by one!’ largely speaks for the complexities of the doctrine of joint enterprise. This
is simply because complicity in crime extends above and beyond the perpetrator and to the
accessories.1 Fundamentally, joint enterprise refers to a crime committed by two or more people
where the secondary party may be liable in carrying out the offence even if unforeseen
consequences were unintended. The entanglement of practicality and pragmatism of the law
concerning joint enterprise is visible in the ambiguity of the liability of the secondary party and
this unfortunately forms the crux of the problem of joint enterprise crimes and as such the need
of reformation in the laws concerning it. This is a far cry from conspiracy crimes in which an
offence arises from sole agreement. The doctrine of common purpose however works in such a
manner that all the defendants are tried and acquitted for the offence commissioned by the
principal offender. As such, secondary parties are ‘liable to be tried, indicated and punished as
principle offenders.”2 To distinguish the types of joint enterprise, the Crown Prosecution Service
3put forth three different scenarios as such:

 In the case where more than one person coalesce in the commission of a joint crime and
inadvertently all become joint principals. This could be visualized as two parties agree to
commit a robbery and both parties have specific tasks in committing the offence. Both
are held liable.
 In the likes of A helps and/or encourages B to commit a single crime. This is exampled in
the likes of A assists B by driving him to scene of crime full on knowing B’s intention to
commit said crime. Both parties are liable where A is the principal offender and B the
1. Where A and B participate together in one crime (crime X) and in doing so B commits
another crime (crime Y) which A had foreseen him committing.

Glanville Williams, Criminal Law : The General Part,( London : Stevens and Sons,2 nd Edition, 1961) Chap 9
Niccola Padfield, Criminal Law ( Oxford, 9th edition 2014) 155
www.thebureauinvestigates.com, accessed on 19th December 2017
While the second is most commonly presumed to be known as basic or general accessorial
liability, it is the third type that has brought about many controversies both by practice and
principle. If a second offence emerged from an original joint offence, it is then known as
“parasitic accessorial liability’ (PAL)”4 which has emerged along the movement of time by
case laws. The gist of PAL’s principle lies upon the defendant’s liability which relies solely
upon their foresight of a possible collateral offence. This is deemed unconscionable as some
defendants are acquitted for crimes they never foresaw what more intended. As such the
major gray area in the use of such an umbrella term such as ‘foresight’ forms the essence of
the complexities of the doctrine of joint enterprise and has been deemed as the reason
behind mass convictions of innocents.

The Law Pre R v Jogee

The practice of regarding joint enterprise pivotally stemmed from the much favored ‘possible’
consequence test held in the case of Chang Wing Sui v The Queen5 and hence, been the
cornerstone of legal principle pertaining joint enterprise crimes. This however has been
viewed under great scrutiny over the years and brought about the need of reforms in current
law, increasingly in relation to youth violence. The Hyde principle in the case of R v Hyde6 also
echoes this ‘possible’ test where it strongly deems that Y too would be jointly accountable of
the said act of X if he realized that X may have committed the crime with the intent of murder.
This principle was put to practice in the cases of Powell and Daniels7 where both defendants
went to buy cannabis from the victim and one of them shot the said victim. Both were
convicted for murder as secondary parties. In the judgment, Lord Hutton summarized that
joint enterprise with foresight or contemplation of an offence is more than sufficient to foist
criminal liability on both parties. As such, there will be no more jurisdiction for reasoning over
‘tacit agreements’ and the test should be one of foresight only. Controversies however arose

Chan Wing Sui v The Queen [1984] Privy Council
Regina v Hyde[1991] Crim LR 133
R v English [1998] 1 Cr App Rep 261
when in R v Wakely, they went as far as to even say ‘that the suggestion of a mere foresight
of the intended and absolute possibility of usage of violence is enough to establish the mental
element was not sufficient8. Beldam LJ in the case of Powell also stated that this principle of
mere foresight could not be used in the likes of cases where there was ‘spontaneous or
instantaneous behavior of a group of irrational individuals’ who attack a common victim
together. This is the pivotal issue in gang violence and mass conviction of youths
predominantly black. It remains largely unsaid how different levels of culpability is measured
and reflected in the sentencing of gang crimes. In such cases, the failure in pin-pointing
defendants’ roles is the main reason for wrong conviction and it should alternaatively depend
on establishing a defendant’s accountability for the said charge. Such ambiguity in this
doctrine has brought about many controversies namely in the case of Garry Newlove9 where
Jordan Cunliffe who had visual impairment was charged with joint enterprise conviction. This
brings about the question of the strenuous effect Cunliffe’s actual sight impairment had on
his foresight of the events that were to transpire. As such, it is no surprise the doctrine has
been met with many criticisms from lawmaker, non-governmental organization and even lay
people. Firstly, it has been urged that the implementation of similar measurement of
foresight for young people and likewise adults is simply unacceptable and morally
reprehensible. This is due to the general understanding that younger people with lesser life
experience can cease their foreseeability of their actions. Besides that, the requirement for
enacting joint enterprise is said to be extremely minute simply because it depends so heavily
upon the defendant having foreseen the possibility that the offender carried out the offence
the way they did rather than the probability that the defendant themselves reacted in the
manner that they did. Lastly the lack of discretion in sentencing resulting in accessorial parties
playing significantly minor role receiving substantially high charges is also a pressing criticism
in today’s times.

R v Wakely [1990] Criminal Law Report 119, 120-121
Cunliffe v SSHD [2016] EWHC 984
The Law Post R v Jogee

Needless to say such criticisms only heightens the need for a reform on a widely practiced 30
year old law that clearly outlined the miscarriages of justice. This sense of injustice was further
reinstated in a study done by the The Bureau of Investigative Journal which found that the “rate
of appeals on joint enterprise cases has unsurprisingly doubled from 11% of rulings in 2008 to
22% in 2013”10. The striking appeal case that shocked the legal world is Jogee11 and upon reaching
the Supreme Court led to a landmark ruling with paramount implications in 2016. The facts of
the case were infamously straightforward were Ameen Jogee and his friend Mohammed Hirsi
were charged with the murder of Paul Fyfe and subsequently given life sentencing. However
appeals were made on the former’s behalf because he did not have anything to do with the act
of murdering the victim with the murder weapon, a knife. Nevertheless he was found guilty of
murder solely due to the fact that he had aggravated his friend to murder Fyfe. The courts
however ruled that the formation of accessorial accountability which over the years was known
as PAL was a fundamental “error”.12 Looking ahead, the laws would be interpreted in such a way
that the defendants’ foresight of the possibility of the other accessories committing an
unintended crime should and will not be amounted as intent. Nevertheless, the foresight can be
justified as evidence when establishing mens rea. It is also said that this judgment will
significantly reduce the conduct of injustice and the much dreaded ‘drag-net’ prosecutions within
the works of common purpose crimes. The act of correcting “what was described in the judgment
as a ‘wrong turn’ made by senior judges”13, joint enterprise laws now stand on these simplified
test of ‘foresight’. Firstly, the secondary participant need to have encouraged or aided with the
consignment of the acquitted offence. It is now not sufficient enough for the second person to
have just foreseen the possibility of the committed offence. As such, for the second person to be

http://www.keepcalmtalklaw.co.uk/joint-enterprise-the-let-him-have-it-principle/, accessed on 23rd December
R v Jogee [2013] EWCA Crim 1433
http://www.icpr.org.uk/media/42690/joint_enterprise___cl_j.pdf, accessed on 24th December 2017
https://www.criminalsolicitor.co.uk/blog/joint-enterprise-a-landmark-ruling-with-major-implications/ accessed
on 5th January 2018
convicted of the said crime he/she must have the requisite intention to albeit or encourage the
principal offender in the commission of the offence. This brings about the question: is
encouragement alone enough in convicting? And the answer is now, no. The idea of mere
foresight is simply no longer sufficient and cannot be used to hold defendants liable for the
actions for the principle offender. This was meticulously seen in the bicycle metaphor used by
the Lordships in the appeals of Jogee’s case. If the secondary offender had encouraged or
counseled the principal to have taken a bicycle but urged him to give it back upon completion of
usage and the principal had knowingly taken ownership of said bicycle permanently, the principal
will be known to be a thief and charged for theft but the secondary should only be charged of
the minor offence of unauthorized taking. This is because he did not have any role in the
principal’s act of permanently keeping the stolen item and as such fails in satisfying the mens rea
of theft. As such, the inability of the secondary offender to satisfy the principle offender’s mens
rea is the gist of the landmark Supreme Court ruling. While this rekindles hope amongst many
families of those wrongly convicted under the doctrine of joint enterprise, it is vital to note that
the landmark Supreme Court ruling has direct relevance in reference to the cases that involves
foresight concerning joint enterprise. At present while the Supreme Court judgment does shed
some light in exuberating and clarifying the ways and works of joint enterprise, the practice and
principal of secondary accountability in light of criminal cases remain baffling in its doctrine what
more its practical consequences. Hence, it is clear a paramount need for clarity and transparency
in the workings of the newly passed law is needed.
Reforms on Laws of Joint Enterprise

What is now known to be openly admitted by the Supreme Court as a ‘wrong turn’ in the over
extension of secondary liabilities in crimes of joint enterprise, the court has nevertheless seek
to dampen any appeals on those convicted under the old laws of joint enterprise. However,
past precedence aside, if the doctrine has interpreted incorrectly then the Supreme Court
enjoys the right to instruct lower courts to be more careful. But it should not be forgotten
that the high use of joint enterprise is an indicator of the scale of the gang problem in Britain
– and that the law does serve a much more vast and pivotal legal and societal purpose.
Moreover, if the goal of this intervention is to effect a review of the entire law then,
politically, this indirectly means the country is moving into new territory. Nevertheless, the
impetus for reform should come from MPs, and not a judiciary whose reputation relies solely
on the avoidance of activism14. The main necessity for reform relies on the need for a ‘clear
and simple principle easy for the jury to apply’ as set forth by the Court of Appeal in Mitchell
for the betterment of sentencing and avoidance of miscarriages of justice. With The House of
Commons going as far to say that the doctrine needed to be ‘enshrined in legislation15’, the
Ministry of Justice was summoned to put forth legislation on the topic and the Director of
Public Prosecutions to construe a legal frame work so as to guide the judges and jury on the
acquittal of defendants of a joint enterprise. This subject was brought to light by the set-up
of campaigning organizations such as JENGba ( Joint Enterprise: Not Guilty by Association) set
up by families of convicts who alleged to be convicted falsely under the previous law of joint
enterprise. The Committee also urges routine recording and surveillance of cases involving
joint enterprise16. This should include scheduled means of notifying, as part of completion of
the charging decision form, with respect to each defendant and the level of culpability he/she
is being charged for, either as principal or accessory. This is also rightfully having included
details of the defendant’s involvement in the crime for example having abetted the
commission of the offence or having counseled or procured the offence or combination of

http://www.prisonreformtrust.org.uk/PressPolicy/News/vw/1/ItemID/337 accessed on 5th January 2018
House of Commons Justice Committee, 2012 : para 36
http://www.icpr.org.uk/media/42690/joint_enterprise___cl_j.pdf accessed on 5th January 2017
the above. Besides that, there is also pressing need for better means of educating and guiding
judges who are to deal with cases involving multiple offenders and appropriate ways to
include and codify issues of principal and accessorial liability in the deliverance of sentence
remarks. The reasoning behind the sentencing should be proposed and exposed in way that
that justifies the defendant’s conscience and defends the victim’s innocence. This includes
pushing the media in the direction of having a firm understanding of the basis on which each
individual has been convicted and a neatly outlined level of culpability of the defendants. This
would negate the disbelief in the criminal justice system amongst the citizens especially in
light of mass convictions of youths believed to be acting under the influence of gang violence.
In addition to that, there are also summons for the use of a new term which would eradicate
the current phrase ‘joint enterprise’ as it is inferred to be ‘not a legal term of art’ and the
coining of such a term over extends the scope of secondary liability. Moreover, the
government is urged to review the mandatory life sentence for murder for an accessory and
a defendant who is seen appreciably less censurable as opposed to the primary offender. In
such cases, the restricted threshold of the judges to exert this information at sentencing given
the different levels of culpability of defendants has seen to be the fundamental flaw in
conviction of defendants and has been the reason the Law Commission among many others
has urged light to be shed upon the life sentence.

In short the main pivotal reason why the doctrine of common purpose may seem like a
precisely defined principle but yet remains so controversial is due to the chaotic and
confusing situations it is being applied to. This is what has fundamentally led to the growing
concern over the need of clarity and transparency in an age old doctrine that has ended up
acting like a ‘fishing net’. As such, in today’s era where the rise of criminal cases is so rampant
the purpose of the doctrine has severely deviated and limited to the mere ensuring that
atleast someone is found guilty of the convicted crime instead of convicting the actual
offender. While it can be argued that many of those caught in the said ‘net’ can be blamed
for minor moral reprehension such as not yelling for attention of passerby at the time of the
offence or perhaps shouting cuss words to increase the tension and aggravate the principle
offender like in the case of Jogee’s it is incomprehensible to say that the way the acted during
the commission of the offence is just to sentence them with the mandatory life terms and to
be given the title of murderer for just mere use of verbal abuse. However, it is also legally
unjust to simply presume that such accessorial offenders should get away without
consequences. This would be deemed unjust especially in the eyes of the victim’s families
who would want every participant of the criminal activity to be convicted. As such, the law
needs to take into consideration the significance and culpability of the role played by each
defendant in the case of joint enterprise. Ultimately, the whole idea of law and justice is in
making sure each person is liable for their actions and its repercussions as well as while
someone may influence my actions by saying perhaps ‘sock him up’ while I am facing my
enemy. However, how I choose to react either by murdering him or leaving the threshold
depends heavily on me and the state of my mind. As such, criminalization of large group of
people for the same offence seems absurd and unjust as it clearly does not follow the
principle of liability for one owns action. Nevertheless in light of legal justice systems and the
works of courts, it is important to understand that while the act of criminalizing large groups
of people can give citizens the impression of active justice being carried out , whether or not
justice is actually being served to the defendants and their families remains a vastly
unanswered question.