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The doctrine of common purpose, common design, joint enterprise, or joint criminal enterprise is a common law legal doctrine that imputes criminal liability to the participants in a criminal enterprise for all that results from that enterprise. A common application of the rule is to impute criminal liability for wounding a person to participants in a riot who knew, or were reckless as to knowing, that one of their number had a knife and might use it, despite the fact that the other participants did not have knives themselves. In England and Wales and certain other Commonwealth countries, this was the understanding of the courts until February 2016, when the Supreme Court of the United Kingdom and the Judicial Committee of the Privy Council (persuded by the Knowles QC's presentation of Professor Baker's research arguing that foresight was only even evidence of intention in common purpose cases) jointly ruled that it was wrong, and that nothing less than intent to assist the crime would do.
The common purpose doctrine was established in England and Wales, and later adopted in other common law jurisdictions including Scotland, Ireland, Australia, Trinidad and Tobago, Solomon Islands, Texas, Massachusetts, the International Criminal Court, and the International Criminal Tribunal for the former Yugoslavia.
Jurisdictions
English law
In English law, the doctrine derives from R v Swindall and Osborne (1846) 2 Car. & K. 230. Two cart drivers engaged in a race. One of them ran down and killed a pedestrian. It was not known which one had driven the fatal cart, but since they were encouraging each other in the race, it was irrelevant which of them had actually struck the man and both were held jointly liable. Thus the parties must share a common purpose and make it clear to each other by their actions that they are acting on their common intention, so that each member of the group assumes responsibility for the actions of the whole group. When this happens, all that flows from the execution of the plan makes them all liable. This is a question of causation, in that oblique intention will be imputed for intermediate consequences that are a necessary precondition to achieving the ultimate purpose, and liability will follow where there are accidental and unforeseen departures from the plan, so long as there is no novus actus interveniens to break the chain.
Until 2016, in cases where there is violence beyond the level anticipated, the prosecution had to prove:
- (a) that an act was done by D that in fact assisted the later commission of the offence,
- (b) that D did the act deliberately, realising that it was capable of assisting the offence,
- (c) that D at the time of doing the act contemplated the commission of the offence by A, i.e. he foresaw it as a "real or substantial risk" or "real possibility," and
- (d) that D when doing the act intended to assist A in what he was doing.
In R v Jogee UKSC 8 the UK Supreme Court decided that (c) was wrong, and that the prosecution actually had to prove that D had intended that A would commit the offence.
Deliberate departure
Where one of the participants deliberately departs from the common purpose by doing something that was not authorised or agreed upon, that participant alone is liable for the consequences. In the situation exemplified in Davies v DPP AC 378, a group comes together for a fight or to commit a crime, and either the participant knows or does not know that one of the group has a weapon. If the person knows that there is a weapon, it is foreseeable that it might be used and the fact that the other participants do not instruct the one carrying to leave it behind means that its use must be within the scope of their intention. However, if the person does not know of the weapon, this is a deliberate departure from the common purpose and this breaks the enterprise.
When the outcome is death
The simplest form of joint enterprise to murder is two or more planning to cause death and doing so. If all the parties participated in carrying out the plan, all are liable, regardless of who actually inflicted the fatal injury. However, when there is no plan to murder and one party kills while carrying out a plan to do something else, such as a planned robbery in which the participants hope to be able to get what they want without killing anyone, but one of them in fact kills, the other participants may still be guilty of murder or manslaughter if they had the necessary mens rea.
In R v Craig & Bentley (1953), Derek Bentley was hanged for the murder of a police officer, committed in the course of a burglary attempt. The murder was committed by a friend and accomplice of Bentley's, Christopher Craig, then aged 16. Bentley was convicted as a party to the murder, by English law principle of common criminal purpose "joint enterprise". The judge in court (Lord Chief Justice Goddard) sentenced Bentley to death based on an interpretation of the phrase "Let him have it" (Bentley's alleged instruction to Craig), describing Bentley as "mentally aiding the murder of Police Constable Sidney Miles". In 1998, Bentley received a posthumous pardon.
In R v Lovesey and Peterson (1969) 53 Cr.App. R. 461, a gang was executing a plan to overpower a jeweller and steal his more valuable stock. After the robbery, the jeweller was found dead. All were properly convicted of murder because the death was the outcome of the agreed use of violence. That this accidentally caused the jeweller's death did not prevent liability. The usual case will involve plans to commit criminal damage, burglary, rape or some other crime, and there will be no compelling inference that there must also have been a plan to kill. For the participants to be convicted of murder, the question becomes one of foresight that one of them might kill.
In R v Powell (Anthony) and English 1 AC 1, the House of Lords said that the other participants must have realised that, in the course of the joint enterprise, the primary party might kill with intent to do so or with intent to cause grievous bodily harm: with the intent necessary for murder. Thus, the Powell and English doctrine extends joint enterprise liability from the paradigm case of a plan to murder to the case of a plan to commit another offence in the course of which the possibility of a murder is foreseen (see R v Bryce. 2004)).
In Attorney General's Reference (No. 3 of 2004) (2005) EWCA Crim 1882, the defendant, H, was charged with manslaughter. H had sent K and C to terrify R, knowing both that K and C would have a loaded firearm with them, and that this firearm might be fired near R to increase his fear. The Court of Appeal held that H's liability depended on the scope of the joint enterprise. On the assumed facts, there was no evidence that H foresaw that the gun would be fired and R might be injured. Rather, K's intentional act of firing the gun so as to kill or cause R grievous bodily harm was fundamentally different from the acts contemplated by H. The outcome would have been different if there had been a common design to cause some harm to R. In such a case, H would be liable for manslaughter because, albeit to frighten, he had authorised the firing of the gun: he would have realised that K might intentionally cause some harm when he fired the gun. However, on the assumed facts, H did not foresee the possibility of any harm to R, let alone intentional harm, so he was properly acquitted.
In R v Gnango UKSC 59, the Supreme Court held that D2 is guilty of the offence of murdering V if (1) D1 and D2 voluntarily engage in fighting each other, each intending to kill or cause grievous bodily harm to the other and each foreseeing that the other has the reciprocal intention, and if (2) D1 mistakenly kills V in the course of the fight. Baker argues that the case was wrongly decided because it did not rest on oblique intention, invoked joint-perpetration where there was none, invoked the "provocative act murder doctrine where it did not apply, and overly restricted the incidental party/victim rule without seeing that it did not apply because the actual victim as opposed to the putative victim (Gnango) did not consent to being harmed." Baker has argued that R. v. Gnango also raises the issue of transferred intention and transferred defences and an issue as to the scope of the victim rule. Baker argues that the victim rule has implications for the transferred intention and transferred defence doctrines and ultimately for the fault and conduct elements for complicity. In his artilce, Professor Baker argues "that the victim rule applies in all cases apart from where an innocent third party is harmed. Coupled with this, it is argued that when a person forces another to kill in lawful and justified defense (i.e., where D holds innocent V hostage and open fires on armed police) D is liable for the harm caused to V when the police return fire and kill V. Per contra, if the police kill a co-perpetrator of a crime, there is no residual wrongful harm and thus D is not liable for the death of his co-perpetrator. The co-perpetrator’s death is the result of the police acting lawfully and justifiably, as is the death of the innocent third party, but the aggressor who is killed by police is not wrongfully harmed by her co-perpetrator because the victim herself forces police’s hand. The police do not wrong an aggressor who is killed by them acting in lawful defense. Per contra, when the police kill an innocent hostage while trying to lawfully arrest the hostage taker, the hostage is wrongfully harmed. The hostage taker who culpably causes the police to harm her by forcing the police to shoot at him while he holds the hostage directly wrongs the innocent hostage." See Dennis J. Baker, "Mutual Combat Complicity, Transferred Intention/Defenses and the Exempt Party Defense," (2016) UNIVERSITY OF LA VERNE LAW REVIEW, Vol. 37, (uploaded on SSRN January 2nd 2015, available at SSRN: http://ssrn.com/abstract=2683972).
In R v Jogee UKSC 8, the Supreme Court (following academic opinion by Professor Dennis J. Baker (see Dennis J. Baker, Glanville Williams Textbook of Criminal Law (London: Sweet & Maxwell, 2015) paragraphs 17-012; 17-045; 17-057; 17-069; see also Dennis J. Baker, "Foresight in Common Purpose Complicity/Joint Enterprise Complicity: It Is a Maxim of Evidence, Not a Substantive Fault Element (October 10, 2012--Draft Chapter (2013/14): Reinterpreting Criminal Complicity, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2507529); and Dennis J. Baker, "Reinterpreting the Mental Element in Criminal Complicity: Change of Normative Position Theory Cannot Rationalize the Current Law (February 4, 2015) to be published in Vol 40 Law & Psychology Review (2016) available at SSRN: http://ssrn.com/abstract=2683971), as presented by Julian B. Knowles QC in the case see: https://www.supremecourt.uk/watch/uksc-2015-0015/291015-am.html, where Knowles refers to the research of Professor Baker from Surrey University) decided that intent, not mere foresight, must be proved in order to convict an accomplice of a crime of specific intent, such as murder. The court said "foresight of what might happen is ordinarily no more than evidence from which a jury can infer the presence of a requisite intention. It may be strong evidence, but its adoption as a test for the mental element for murder in the case of a secondary party is a serious and anomalous departure from the basic rule, which results in over-extension of the law of murder." He summarised the law as: "If the crime requires a particular intent, D2 must intend ... to assist D1 to act with such intent." (This appeal was heard jointly with an appeal from Jamaica to the Judicial Committee of the Privy Council, with the same judges, Ruddock v The Queen UKPC 7.) At paragraph 17-056 of Dennis J. Baker, Glanville Williams Textbook of Criminal Law (2015), it is argued: "In the case of common purpose complicity, it has to be established that the accessory, by her conduct of participating in the underlying criminal joint enterprise, did in fact encourage the perpetrator to perpetrate the collateral crime. There might be sufficient evidence a jury to infer that the accessory encouraged the perpetrator by voluntarily agreeing to participate in the underlying criminal joint enterprise, if it can also be established that there was a mutual expectation that certain conditional collateral crimes would be perpetrated to make their underlying criminal joint enterprise succeed. Alternatively, it might be shown that the perpetrator was encouraged by the fact that she knew that that accessory approved of his (conditional) collateral crimes and willingly participated in the underlying enterprise knowing those crimes where conditionally intended."
Thereafter, at paragraph 17-069 in the Textbook of Criminal Law, Professor Baker writes: "ntil the decision in the House of Lords in R. v. Powell changed the law, the foresight of possibility rule (i.e., the accessory’s foresight of the collateral crime as a possible incident of the underlying joint enterprise), like the probable and natural consequences maxim, was a mere maxim of evidence for inferring that the common purpose extended to the collateral crime." .... "I will focus on the rules that have been developed for allowing a jury to infer intention and reckless foresight for the purpose of establishing common purpose complicity. These same rules were traditionally used for inferring intention, but in recent decades they have also been used to infer reckless foresight in common purpose complicity cases. What was a maxim of evidence has been invoked as a substantive fault element in complicity since 1999, which has had the effect of extending the mental element in common purpose complicity to cover recklessness. Traditionally, the maxim that a person intends the foreseen consequences of her actions was used in common purpose complicity only to infer that the accessory authorised and thus intended or conditionally intended to encourage the perpetrator to perpetrate the (conditional) collateral crime. A crime as a foreseen collateral crime of an underlying joint enterprise was merely evidence from which an accessory’s intention or conditional intention that the perpetrator perpetrate the collateral crime could be inferred. Foresight was not a substantive fault element, but merely a maxim of evidence." At paragraph 17-045, Professor Baker argues: "However, the courts have run into error by failing to see that contemplation or foresight of the potential conditional crimes is a special requirement in complicity liability, because the accessory’s liability is contingent on the perpetrator’s future criminal choices. At the time when the assistance or encouragement is given, the commission of the anticipated crime is in futuro. Foresight or contemplation is an issue because the jury has to ascertain whether the accessory intended to assist or encourage the perpetrator’s particular future offending when she did her act of assistance or encouragement. When the accessory provides assistance or encouragement with full knowledge of the alternative crimes that the perpetrator conditionally intends to perpetrate in alternative to each other, the jury is able to infer that the accessory conditionally intended to assist or encourage whichever crime within the particular range was perpetrated." At paragraph 17-057 of the 2015 edition of the Textbook of Criminal Law, Professor Baker concludes: "She will not be liable unless factual participation can be established. The courts have tended to overlook this requirement. Accessorial liability derives from the accessory’s factual involvement in the perpetrator’s offending. On derivative principles the accessory is liable only if she in fact participates in the primary offending. A person cannot be derivatively involved in the crime of another merely because she associated with the perpetrator in circumstances where she foresaw the perpetrator might commit a collateral crime. In the case of common purpose complicity, it has to be established that the accessory, by her conduct of participating in the underlying criminal joint enterprise, did in fact encourage the perpetrator to perpetrate the collateral crime. There might be sufficient evidence a jury to infer that the accessory encouraged the perpetrator by voluntarily agreeing to participate in the underlying criminal joint enterprise, if it can also be established that there was a mutual expectation that certain conditional collateral crimes would be perpetrated to make their underlying criminal joint enterprise succeed. Alternatively, it might be shown that the perpetrator was encouraged by the fact that she knew that that accessory approved of his (conditional) collateral crimes and willingly participated in the underlying enterprise knowing those crimes where conditionally intended."
In Baker's Dennis J. Baker, "Reinterpreting the Mental Element in Criminal Complicity: Change of Normative Position Theory Cannot Rationalize the Current Law (February 4, 2015) to be published in Vol 40 Law & Psychology Review (2016) available at SSRN: http://ssrn.com/abstract=2683971), it is argued: "In this article, I will argue that the mental element in complicity is one of intention. It is submitted that recklessness is not sufficient. This will be demonstrated by showing that the ancient and modern authorities on complicity required intention. Coupled with this, it shall be argued that complicity’s “causal participation” element means the conduct element in complicity can only be made out in the common purpose/joint enterprise complicity scenario when there is intentional encouragement on the part of the accessory. Since the Accessories and Abettors Act 1861 U.K., like most of the statutory provisions found in the United States, deems that both the perpetrator and accessory are perpetrators (principals) for the purpose of punishment and crime labelling, limiting the mental element in complicity to intentional participation is the only way to reconcile these sorts of provisions with the requirements of proportionate punishment and fair labelling. It is true that some forms of reckless encouragement and assistance will not be criminalized if the mental element in complicity is intention only, but a lesser offence of reckless participation would plug this lacuna and would allow for fair labelling and proportionate punishment. .... In this article, I draw on the common law of England and America, ancient and modern, to demonstrate that the common purpose complicity doctrine as expounded by Sir Robin Cooke in Chan Wing-Siu v. The Queen (and since adopted by the Lords in England) cannot be reconciled with a consistent line of authorities going back 500 years. Nor can it be reconciled with our contemporary human rights. Historically it was necessary for D2 to authorize D1’s actions. Thus D2 could not be liable where (s)he simply foresaw D1’s actions, especially when D2 had expressly forbidden those actions. D2 could only be liable if (s)he had at least obliquely intended to encourage the perpetrator by impliedly authorizing any collateral crimes. Collateral crimes are normally conditional — they depend on what happens while the joint enterprise is being carried out. “Foresight” was only ever meant to pertain to D2’s knowledge of any planned collateral crime that would be perpetrated where necessary to make the underlying joint enterprise succeed. It was not meant to supplant the requirement that any criminal response to the contingencies of a joint enterprise be intended and authorized. (D2’s implied authorization forms the conduct element because it is factual encouragement). If lawmakers were to accept this interpretation, it would result in a radical narrowing of the doctrine as laid down in Chan Wing-Siu v. The Queen. Such a change, in practical terms, could raise concern that it would remove protection for society. However, this concern could be addressed by amending the Serious Crime Act 2007 U.K. to criminalize reckless participation. The advantage of amendment to the 2007 Act’s offences is that it allows for fair labeling and proportionate punishment." See also the powerful presentation of these in Baker's earlier verson of that paper: Dennis J. Baker, "Foresight in Common Purpose Complicity/Joint Enterprise Complicity: It Is a Maxim of Evidence, Not a Substantive Fault Element (October 10, 2012--Draft Chapter (2013/14): Reinterpreting Criminal Complicity, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2507529).
Repentance
One person who has been an active member of a group with a common purpose may escape liability by withdrawing before the other(s) go on to commit the crime. Mere repentance without any action, however, leaves the party liable. To be effective, the withdrawing party must actively seek to prevent the others from relying on what has been done. In R v Becerra (1975) 62 Crim. App. R. 212 it was held that any communication of withdrawal by the secondary party to the perpetrator must be such as to serve "unequivocal notice" upon the other party to the common purpose that, if he proceeds upon it, he does so without the further aid and assistance of the withdrawing party.:
- If an accomplice only advised or encouraged the principal to commit the crime, he must at least communicate his withdrawal to the other parties.
- Where an accomplice has supplied the principal with the means of committing the crime, the accomplice must arguably neutralise, or at least take all reasonable steps to neutralise, the aid he has given.
- In more serious cases, it may be that the only effective withdrawal is either physical intervention or calling in the police.
In R v Rook (1997) Cr. App. R. 327, the court held that, as in the case of joint enterprise where both parties are present at the scene of the crime, it is not necessary for the prosecution to show that a secondary party who lends assistance or encouragement before the commission of the crime intended the victim to be killed, or to suffer serious injury, provided it was proved that he foresaw the event as a real or substantial risk and nonetheless lent his assistance.
Rook was convicted as one of a gang of three men who met and agreed the details of a contract killing of the wife of a fourth man on the next day. Rook did not turn up the next day and the killing was done by his two fellows. His defence was that he never intended the victim to be killed and believed that, if he failed to appear, the others would not go through with the plan. Lloyd LJ. described the evidence against him in this way:
- So the position, on his own evidence, was that he took a leading part in the planning of the murder. He foresaw that the murder would, or at least might, take place. For a time he stalled the others. But he did nothing to stop them, and, apart from his absence on the Thursday, he did nothing to indicate to them that he had changed his mind.
This did not amount to an unequivocal communication of his withdrawal from the scheme contemplated at the time he gave his assistance.
Controversy
The use of this doctrine has caused concern among academics and practitioners in the legal community, and has been the subject of an investigation by the House of Commons Justice Select Committee in the UK. In 2010, a campaign group was formed in the UK called JENGbA (Joint Enterprise: Not Guilty by Association), which seeks reform of the law and supports those convicted by this means. JENGbA asserts that the misapplication of the principle constitutes a form of human rights abuse.
On 6 July 2014, Common, a 90-minute television drama written by Jimmy McGovern, was shown on BBC One. It examined the issues surrounding a case of joint enterprise or common unlawful purpose murder. On 7 July 2014, a documentary regarding a number of joint enterprise cases, Guilty by Association, was also shown on BBC One.
One of these cases is that of Alex Henry, convicted in March 2014 at the Old Bailey alongside Janhelle Grant-Murray and Cameron Ferguson, for the murder of Taqui Khezihi and the non-fatal stabbing of Bourhane Khezihi. The court heard how Alex Henry was shopping in Ealing Broadway on a Tuesday afternoon in August 2013 with his two co-defendants. He exited the shopping centre with Ferguson to see Grant-Murray being confronted by a group of four older men whom were unknown to all defendants. CCTV showed that Grant-Murray was holding a wine bottle by the neck and Bourhane Khezihi had removed his belt to use as a knuckle duster. A combination of CCTV evidence and mobile phone video footage was used to piece together the 47 second affray in which Alex Henry can be seen running into the affray and running back to the shopping centre. At trial Cameron Ferguson pleaded guilty to murder and GBHs18. Alex Henry and Janhelle Grant-Murray were both found guilty by a majority verdict of 11-1. It was their presence at the scene of the spontaneous 47 second affray which was held to amount to encouragement of the stabbing. They both received a life sentence with a minimum prison term of 19 years.
On 25 February 2015, an appeal to the Court of Appeal by two convicted murderers was successful. A young man, Jonathan Fitchett, had been killed at a retail park after an altercation with Childs, who was joined by his friend Price. Although both defendants had punched the victim, an expert medical witness said that just a single punch was fatal, and it was unknown who threw the fatal punch. The Liverpool Crown Court had convicted both of murder using the device of common purpose. The Appeal Court found that there had been no intent to cause really serious injury, and that there was no evidence of "common purpose". The first defendant's conviction was reduced to manslaughter, and the second was reduced to affray. The Court said that for common purpose/joint enterprise to arise, there must be satisfactory evidence of a joint plan. (The absence of precise actus reus was glossed over).
See also
- Felony murder rule
- Joint criminal enterprise
- Art and part, a similar principal under Scots Law
- R v Betts and Ridley
References
- R v Jogee and Ruddock v The Queen UKSC 8 and UKPC 7 at UKSC website (retrieved 18 February 2016)
- http://www.bailii.org/ew/cases/EWCA/Crim/1998/2516.html
- http://www.hmcourts-service.gov.uk/judgmentsfiles/j2526/regina-v-bryce.htm
- *Template:Http://papers.ssrn.com/sol3/papers.cfm?abstract id=2198408
- Paragraph 83
- Paragraph 90
- "Common: Jimmy McGovern Takes On "Group" Crime rule". BBC. 6 July 2014. Retrieved 6 July 2014.
- http://www.bbc.co.uk/programmes/b049bb31
- http://www.liverpoolecho.co.uk/news/liverpool-news/gerard-childs-stephen-price-cleared-8721065
- Baker, Dennis J. Glanville Williams, Textbook of Criminal Law. Sweet & Maxwell, London University Press, London. Chapter 14, p. 475 (2012) ISBN 9780414046139; Dennis J. Baker, "Liability for Encouraging One's Own Murder, Victims, and Other Exempt Parties' (2012) 23(3) King’s Law Journal 257–285.
- Baker, Dennis J, Liability for Encouraging One's Own Murder, Victims, and Other Exempt Parties (2012). (2012) 23(3) King’s Law Journal 257–285. Available at SSRN: http://ssrn.com/abstract=2198408.
- http://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?productid=490289&recordid=4953]
- http://www.jointenterprise.co
- Joint Enterprise Cases - detailed accounts of high-profile cases where the doctrine of common purpose has been applied.