Senior judges and the Law Commission have already expressed concern about the way that this part of the law is being used in modern times. While the law may be reformed in the coming years, it has been in effect for 300 years, and is not going to change any time soon. An accused person and his or her family need to understand this potentially dangerous area of law as early as possible. This can help to give them a better chance of fighting the prosecution successfully.
Any criminal lawyer can claim to have expertise in different types of criminal case. We have included here a case study to give some idea of how we prepare our cases.
Murder of a homeless man
Our client was a 17 year old boy who was with a group of boys who had kicked a homeless man to death. There was extensive DNA evidence on the clothes of other defendants. Our client was shown to have been part of the incident.
There was evidence that he had admitted to his friends being present and taking part in the joint attack right at the end. The issues were: could his presence alone be interpreted as being part of a joint enterprise? If it could, then he would be held responsible for the actions of the others. If he was not to be treated as acting together with the others, had the victim already received the fatal blows before he joined in?
Careful questioning by our QC brought out that the victim had already received the fatal blows before our client joined in the assault. The Jury also came to the conclusion put forward by us that our client was not acting together with the others until he actually joined in the assault. Verdict : Not guilty Other defendants not represented by us were convicted of murder.)
What is Joint Enterprise?
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 prosecution must 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 need to be planned in advance, and it may be inferred from the participants actions. 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 similar. Actual presence at the scene of the crime is not necessary to be guilty of it.
For it to be joint enterprise, the behaviour of the individuals must indicate that they are acting as a group, and they must understand this. 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 realised their behaviour could support the main offender
- They realised that the act of killing the victim was a real possibility
- They meant for their actions to support the activity of the main offender
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 where one party acted in a manner which went beyond the 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, or whether the fatal part of the attack was foreseen by the other defendants as real possibility when they started the initial attack
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 about what the others present might have expected in the context of the group’s action.
The Defence Strategy
So what practical steps can a defence team take to prevent a client being held responsible in a prosecution for an offence involving 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.
Of course, it is also necessary that the defence lawyers have a proper understanding of the law in this area, 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 lawyer 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 the relationships and expectations of members in the group
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 to 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 thing is less daunting. Many clients in this type of case are young people and therefore may be vulnerable, and this good communication as a foundation for good preparation of the case is very important.
Securing an 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 apparent on looking up their internet profile. 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.
Joint Enterprise Murder
In murder cases which involve an allegation of joint enterprise, the prosecution must prove that the main offender is guilty in law for the main action of the murder. For more information on murder cases click here.