This essay will discuss issues faced in joint enterprise before the case of R v Jogee 2016 and what changes came into effect after this case. A definition of joint enterprise would be when two or more people commit a crime together and during the course of the crime, one of them commits a further offence. It is described in the case of R v Gnango where it is explained that joint enterprise becomes apparent when ‘two parties participate in the commission of crime A and, in the course of committing it, D1 commits crime B which D2 foresees that he might commit.’.
Before the case of Jogee
Chan Wing-Siu 1985 was a case that changed the framework for joint enterprise. In this the three appellants went to the deceased house intending to rob him, three of them carrying knives, upon entering the premises the victim attacked them and in retaliation, they killed the deceased, as well as slashing the wife on her head as they were leaving. Chan Wing-Siu only used two cases were referred to in judgement perhaps not giving a deeper insight into whether or not the accessory should be held liable. The judgement came to be that the accessory would be liable for murder since it was foreseeable for the act to occur during the first crime that they were committing. It was stated that:
“an accessory before the fact bears, as does a principal in the second degree, a criminal liability for an act which was within the contemplation of both himself and the principal in the first degree as an act which might be done in the course of carrying out the primary criminal intention”
It is the principle of parasitic accessory liability which is where, the accessory is criminally liable for the acts made by the principal, it is seen that foresight is considered to be equal to intent and authorisation. This was then later affirmed in the case of R v Powell and R v English, where it is stated in the House of Lords that:
‘it is sufficient to found a conviction for murder of a secondary party to a joint enterprise that he or she participated in the enterprise intending or foreseeing that the principal might do an act in the course of the enterprise with intent to do grievous bodily harm’.
The change in law after this was extensive, allowing the secondary defendant to be held liable for the crime of intent, most would say that it was where the law took a wrong turn, as stated in a journal ‘Young men are serving hugely long minimum terms for murder because they were out with a mate who then murdered someone.’, this statement reflects some of the displeasure felt amongst the public about this principle, this statement could be supported by the next.
The principle of parasitic accessory liability arises again in the aforementioned case of Gnango, it could be seen as a case that aided in the change of law. The facts of the case are as stated; two men, Gnango and another who was never identified but was referred to as ‘Bandana man’, engaged in a gunfight where they both had the intention to shoot and be shot at. During their course of the shootout, ‘Bandana man’ misses and subsequently shoots and kills a passerby, instead of Gnango. Seven judges sat in this case with the majority upholding the conviction of Gnango for murder under parasitic accessory liability. However, many questioned as to how the judgement came to be this way. The Crown suggested that agreeing to the gunfight was crime A and that the killing was crime B, which then lead to Gnango being seen as an accessory, since it was seen as a possible outcome of crime A. They then stated that since he had aided, abetted, counselled and procured ‘Bandana man’ to shoot at him, he would be considered guilty of aiding and abetting and attempted murder on himself. By the end of this case, it had been agreed that the respondent’s conviction was guilty.
Although one judge Lord Kerr dissented against the judgement he stated that had B fired first it would be correct to assume that Gnango fired in retaliation of that shot and therefore it could be stated due to Gnango’s retaliation it caused B to fire again. Nonetheless as said by Lord Kerr, ‘that is not enough to show that B was caused to fire because of Gnango’s shot. I do not consider, therefore, that Gnango can be guilty of the murder of Ms Pniewska as a joint principal.’
Many issues have come to light due to the judgement made in Gnango, and many weaknesses could be pointed out in the case, firstly in the use of joint enterprise, the weakness that could be identified in this is that Gnango and ‘Bandana man’ were not acting jointly in the confrontation
The decision of Jogee, caused the principles of secondary liability to restated, through this these principles were put clearly, which aided in taking a right turn in law. They are summarised as stated; the necessary element is whether or not D2 had encouraged or assisted in the offence, however, any association and presence are not proof of assistance or encouragement. Secondly, the accessory requires knowledge of any necessary facts to give the principal’s conduct or intended conduct its criminal character. The defendant must plan to assist on encouraging D1 to act with that intention, an intention defined as being ‘a decision to bring about a certain consequence’, once proved that there was encouragement there is no need to prove if it harbours a positive effect on D1s conduct. The only mens rea needed from D2 is that he intended to encourage or assist the principal to do the prohibited act. With these principles stated clearly it has changed the path that the law has taken from, Chan Wing Siu, the error identified was important in a matter of legal principle. However, issues arise from past convictions