The Legal Position.

Joint enterprise is a doctrine of common law, dating back several centuries, that has been developed by the courts, to allow for more than one person to be charged and convicted of the same crime.

In the case of Rex. v Jogee, (appellant) 2016, The Supreme Court ruled in favour of Jogee, clarifying the requirement of the mental element’ of intention to assist or encourage” the principal’party to commit the crime, which must be proved, when a defendant is accused of being a secondary partyto a crime. Foresight’ is considered to be evidence, (albeit, not absolute), of intent to assist or encourage.

In the ruling, the court made the following comments:

The mental element for secondary liability is intention to assist or encourage the crime. Sometimes the encouragement or assistance is given to a specific crime, and sometimes to a range of crimes, one of which is committed; either will suffice. Sometimes the encouragement or assistance involves an agreement between the parties, but in other cases it takes the form of more or less spontaneous joining in a criminal enterprise; again, either will suffice. Intention to assist is not the same as desiring the crime to be committed. On the contrary, the intention to assist may sometimes be conditional, in the sense that the secondary party hopes that the further crime will not be necessary, but if he nevertheless gives his intentional assistance on the basis that it may be committed if the necessity for it arises, he will be guilty.”

The court makes clear what the present case(s) do not decide. First, they do not affect the law that a person who joins in a crime which any reasonable person would realise involves a risk of harm, and death results, is guilty at least of manslaughter. Manslaughter cases can vary in their gravity but may be very serious and the maximum sentence is life imprisonment. Secondly, they do not affect the rule that a person who intentionally encourages or assists the commission of a crime is as guilty as the person who physically commits it. Thirdly, they do not alter the fact that it is open to a jury to infer intentional encouragement or assistance, for example, from weight of numbers in a combined attack, whether more or less spontaneous or planned, or from knowledge that weapons are being carried. It is a commonplace for juries to have to decide what inferences they can properly draw about intentionfrom an accused persons behaviour and what he knew.

Our Position.

Surely, there should be further considerations for juries to draw inferences –

  1. Whether the murdered person would have had a reasonable chance of survival, had there been just one attacker, ie. without the weight of numbers against him/her.
  2. The question also arises, whether the ‘principal’ party would have attacked at all, without the presence of the ‘secondary’ party and the security provided by weight of numbers. If the answer is yes, then the secondary party should be found guilty, simply by lending weight to the attack. It should not be dependent upon proving intent. Surely, intent to harm is implicit in weight of numbers. If the answer is no, then surely the same logic applies as for item one above.
  3. What degree of influence that the ‘primary’ party accused, may have had on the secondary accused, and vice versa, prior to and during a criminal act. Particularly, the specific circumstances surrounding sibling attackers and their distinct knowledge and understanding of one another.
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