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Joint Enterprise: Murder and Other Offences

23 December 2021

What is Joint Enterprise Murder?

Often when several defendants face trial together for murder, the prosecution case is that they were acting as part of a joint enterprise. Joint enterprise here basically means a joint effort. The prosecution are likely to put the case in this way if a group attacks and kills an individual but the prosecution cannot say who exactly struck the fatal blow. The prosecution in this case are saying that the group as a whole was acting together to kill or cause serious injury to the victim.

In such cases it is vital that joint enterprise solicitors approach the preparation of the case in a meticulous and focussed way.

As offences of violence involving groups of young people (often with weapons) have increased, so the law on this area has increasingly been used by the police in the hope of obtaining convictions of the group even though only one person may have actually committed the offence. This of course sounds somewhat unfair.

The law in this area has been recently clarified by the Supreme Court in favour of defendants in the case of R v Jogee. Now it is necessary for the prosecution to prove that each party to the joint enterprise intended that the victim be caused serious injury or death. Just foreseeing the possibility that someone in the group may inflict death or serious injury is now no longer the same as the intent necessary to be proved guilty of murder.

How does the law on joint enterprise murder work?

It is a basic rule that people are only criminally liable for their own wrongdoing, and not things that other people do. On the other hand, if a number of people act together to commit an offence they can each be responsible, although the parts they play when doing this may be different. For example, two burglars may enter a house together and together remove a television set. They are both guilty of burglary. Or, one burglar may enter the house while the other keeps watch for him outside. Again, they are both guilty of burglary.

The Defence Strategy

So what practical steps can a defence team take to prevent a client being convicted of an offence via joint enterprise?

Knowing the law and the case properly

The fundamentals of good criminal legal work apply in these cases. There is no substitute for knowing the law and the client's case thoroughly. Spending time with the client, making sure the client's side of the story has been considered in real detail, and making sure the client feels comfortable with what he or she will say in court are all important. Clearly the nature of joint enterprise is such that particular focus needs to be given to the nature of the client's relationship with their co-defendants.

Of course, it is also necessary that the joint enterprise solicitors have a proper understanding of the law of joint enterprise murder and the law on conspiracy if that is also part of the case. There are a number of decided cases in the higher courts which give legal guidance as to how this area of the law applies to multiple defendants, and where it does not. If a joint enterprise solicitor does not know the circumstances, for example, in which a client can claim that one other member of the group was acting outside the scope of any common plan, then this may be a cause for concern for the client.

Understanding different characters and roles in the case

It is very important to have a good idea of what was expected by each member of the group in the time leading up to the incident. Was the intention of most members of the group to simply confront or remonstrate? Was it to use violence, however minor? Was it foreseeable that injury may take place? If one or more members of a group had weapons, did others know? Did the presence of weapons make violence more likely? All these questions can be important. The defence team must be well prepared. The defence solicitor and the client have to tackle these difficult areas relating to what the client and co-defendants actually knew about what was likely to happen in the incident. If this is not done properly before the trial, the prospect of a conviction may increase. This also means getting to know the client, and making him or her feel at ease with the solicitor, barrister, and the ins and outs of the process, so the whole process is less daunting. Many clients in this type of case are young people and therefore may be vulnerable, and so good communication is an essential foundation for good preparation of the case.

Co-defendants in Joint Enterprise Cases

Many murder cases involve more than one defendant. These are often referred to as multi-handed cases.

It is often advisable for defendants to have separate solicitors' firms and barrister teams representing them in these cases.

One reason that the Crown Prosecution Service will prosecute several people in the same case can be that they hope that the defendants will try to point the blame at each other.

Usually the best advice that can be given to defendants in a multi-handed case is to try not to blame each other and if possible actually cooperate with the other defendants. Infighting between separate defence teams can often mean that all defendants get convicted. Of course, all cases are different, and in some cases it will be necessary to point the blame elsewhere, although this should only ever be done with extreme caution.

The prosecution have to prove ‘participation with a common purpose'. This effectively means agreement to act together. The agreement can be made without being spoken and it does not have to be planned in advance. The actions of the defendants can be enough for a jury to conclude that they were acting in agreement. So if two people join in on an attack started by someone else, the common purpose may be proved even if they don't use words such as ‘OK, let's do this' or something similar. Actual presence at the scene of the crime is not necessary to be guilty of it because of the different roles which can be played in furtherance of a common purpose.

For it to be joint enterprise, the behaviour of the individuals has to indicate that they are acting as a group, and they must understand that they are acting together. Where someone in the group does something outside the original plan, for example by killing someone during what was thought by the others to be simply an attack or robbery, the others in the group may still be guilty of murder if:

  • They acted in a way that supported the killing

  • They intended for the victim to be killed or seriously injured

As has been stated above, the situation for defendants has been improved by the Supreme Court in the case of R v Jogee. The result is that the prosecution must prove that each party to the joint enterprise intended that the victim suffer serious injury or death. Simply foreseeing the possibility that someone in the group may inflict death or serious injury is not the same as proof that the person intended for the victim to die or face serious injury, albeit foreseeing the possibility of an outcome may be used by the jury as evidence that a defendant did in fact intend that outcome.

Violence and Attacks involving Knives and Guns

The situation can be more complicated in cases where the crime requires specific intent, such as murder. The intention of the person who had a gun or knife which was used to kill may not be difficult to work out. But what about other people present? For example, where one person in a group attacks and kills someone with a knife or gun, a jury may decide that all the members who had supported the attack up to the point that the knife was produced and used are also guilty along with the armed attacker. But if one person acted in a way which went beyond the expectations or purpose of the others, the issue for the jury to decide will be whether the knife or gun attack was still within the scope of the joint enterprise. In cases involving knives and guns, what other defendants knew before the incident about the fact that someone had a weapon may be very important information for the jury in assessing what may have been expected in the context of the group's action. However, knowing that somebody had a knife or other weapon and that they may use it, while being potential evidence of a shared intent, is not enough on its own to prove the shared intent necessary for murder.

A joint enterprise expert barrister

Perhaps unlike some areas of criminal law, there is such a thing as an expert advocate in serious joint enterprise cases. The right barrister must be chosen. The barrister must be a good communicator, and crucially have experience in cases involving serious violence, public order offences, and especially cases involving groups of people. Because this is an area of law which excessively targets young people, experience of dealing with younger defendants and the ability to put them at ease is also an advantage. In murder cases, a QC (Queen's Counsel - a barrister with a government seal of approval for serious cases) will usually be available to the defendant.

There are some QCs who have made their names by specialising in this type of case, and this should be clear from their profiles. Clients and their families should be proactive and ask their solicitors for this information so that they are satisfied that they have the right person for the job.

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