Posted on 18th February 2016

The Supreme Court today handed down a landmark legal judgment which has changed the law of Joint enterprise, stating that they were correcting an error in the law which was made 30 years ago.

Joint enterprise is a phrase often used, but seldom understood. Take for example a riot at a football match where rival fans fight one another. Under the law of joint enterprise if a group of supporters from team A surround a fan from team B and punch him and kick him, causing serious injuries, all those can be convicted of GBH without the prosecution having to prove who delivered what blow, or whether that particular blow caused the injury that constituted GBH.  Furthermore, if one person from team A was part of the group attacking the supporter but they did not deliver any blows or kicks themselves, they could still be guilty of the offence if they assisted, or encouraged the violence in any way.

The controversy came from offences where specific intent was required, so taking our football analogy further, imagine a scenario where all supporters of Team A were punching and kicking the fan from team B, but then, unknown to other supporters, one fan, C, pulls out a knife and stabs the fan from team B. That fan is clearly guilty of murder, but under the old law, supporters who had joined in with the punching and kicking could now also be guilty of murder if the prosecution could show that those supporters could have foreseen that the fan with the knife might have acted as he did. Under the old law thus if another supporter foresaw that fan C might stab someone the other supporters could be guilty of murder, even if they never themselves intended to kill or cause GBH.

In some scenarios this meant that there could be a lower standard of intent for the person who actually committed the killing, than for the supporter, who merely had to foresee it.

The Supreme Court today amended that anomaly, now in a case of joint enterprise the prosecution must prove that where a principal offender commits a crime the secondary party must have assisted in or encouraged the commission of that crime. This means that in our football scenario whilst both parties may have been part of a group assault, for the second supporter to be guilty of murder he must have assisted or encouraged the holder of the knife to commit the stabbing. This now creates a mental element to joint enterprise, rather than simply foresight that a crime might be committed.

Some commentators have suggested that this will open the floodgates for appeals for all those convicted of offences under joint enterprise, but the Supreme Court has given clear guidance, and stated that where there is to be an appeal this must be to the Court of Appeal Criminal Division, and they will only consider it and give leave in exceptional cases if it can be shown that a substantial injustice has been caused by the conviction in that case. Any appeal case may have a conviction set aside, or in cases of murder for example, a manslaughter conviction may be substituted. Thus the floodgates will not open, but at least those involved in case alleging joint enterprise can now argue their client’s case on a far stronger footing.

This article was written by No5 Chambers Crime Barrister Michelle Heeley.

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