The concept of joint enterprise has been something of a controversy over the past few years with people arguing that convicted murders should not stand convicted because they were not at the murder scene etc.
I was recently followed on Twitter by the Justice for Wesley campaign, which argues that Wesley Porter was wrongly convicted for his part in a gangland murder. According to the Liverpool Echo newspaper, Porter was alleged by the prosecution to have supplied the murder weapon to the killer and was thus convicted under the joint enterprise law.
Jonathan Herring in his Criminal Law textbook succinctly defines joint enterprise as arising “where two or more people together embark on the commission of a criminal offence. The two parties may expressly agree to commit a particular crime, or this may be an unspoken agreement.” There is no requirement for all of the parties to a joint enterprise to know one another but it is important that they are working toward a common cause.
I explain joint enterprise to clients by likening it to BP or Shell. Let’s take three employees of those companies, the person working on the petrol forecourt, the person drilling for oil and the managing director. They won’t necessarily know each other but they are working together in a common cause and are linked together by their work to further that common cause. In the same way, parties to a criminal venture may or may not know each other.
There can be an overlap between joint enterprise, conspiracy and accessories to offences. For example, if John supplies Mark with a gun knowing that Mark will use the gun to kill Peter then John could be guilty of murder by joint enterprise if they are both working together to further the cause of killing Peter. Equally, if John enters into an agreement to help Mark then they could both be charged with conspiracy to commit murder. Finally, John could be guilty of aiding, abetting, counselling or procuring an offence of murder.
I will just take a moment to quickly explain two terms. First, a principal offender is the person who commits a crime, e.g. the man who pulls the trigger of a gun to kill somebody else. In joint enterprise cases the concept of the principal offender is stretched somewhat to include those around the principal who are involved but not holding the gun. Secondly, an accessory is somebody who is a secondary party to the principal’s offence. Typically, this is somebody who aids, abets, counsels or procures a crime. We’ll discuss this more later on.
What is the difference between a conspiracy and joint enterprise? The truth is that in many cases there will be a significant overlap and a prosecution could be framed as conspiracy or joint enterprise. They key difference is that joint enterprise requires a crime to have taken place. Conspiracy is the crime and is committed once the agreement to commit a crime is reached even if that plan is never implemented and the “actual” crime, e.g. a burglary, never takes place.
So, if John and Mark agree to kill Peter they are guilty of conspiracy to murder at the point they reach the agreement, even if they never go on to actually kill Peter. They cannot be guilty under the joint enterprise law as no murder has taken place.
Is there a difference between joint enterprise and aiding, abetting, counselling or procuring an offence? According to Herring, some commentators say that joint enterprise is just a fancy form of aiding and abetting an offence. Personally, I think that there is a difference because the mens rea (the mental element of a crime) must be different for aiding and abetting than for the commission of the offence itself. The individual words “aiding”, “abetting”, “counselling” and “procuring” are not particularly well defined by the courts because since the abolition of the need to distinguish between felonies and misdemeanours aiding and abetting has always been charged using all four words. Nonetheless, I will do my best to define each word for you:
1. Aiding – occurs when an accessory to a crime offers help or assistance to the principal offender, e.g. by supplying a gun for use in a crime.
2. Abetting – I will quote Herring’s book here, as it made me laugh. “To be honest no one knows what abetting means”. In NCB v Gamble  1 QB 11 Devlin, LJ. says that abetting is encouragement given at the time of the offence as opposed to procurement, which is encouragement given before the commission of the offence. Personally, I think it’s just an old-fashioned word that means nothing except that some long dead lawyer insisted on the belt and braces approach to drafting and others trying to look clever took up the word rather than admitting they had no idea what it meant.
3. Counselling – involves directing somebody to commit an offence. The accessory may indicate that commission of a particular offence is desirable or may go further to incite or instigate the crime, e.g. King Henry’s words "Will no one rid me of this turbulent priest?" were interpreted by his followers as meaning he wanted Thomas Becket killed. If that was his meaning then perhaps that would be counselling… if he wasn’t King that is.
4. Procuring – will occur when the principal acts as a result of the accessories actions, e.g. Peter hears of a conspiracy between Mark and John to kill him and so convinces Trevor, who has a grudge against Mark and John, to off them before they can top Peter.
So, we can see that aiding and abetting involves helping the principal while joint enterprise goes well beyond that and enters the territory of being so involved in the offence that the defendant becomes a principal offender himself.
People don’t like the concept of joint enterprise because it makes them guilty of an offence as a principal offender even where they have not been present for the commission of the actual offence. The argument really comes down to “well if I wasn’t there how can I have murdered him?” With respect, this is a nonsense. Let’s imagine a sophisticated cash in transit robbery. Charlie and his gang plan to steal gold bullion from the middle of a busy city by using the talents of Professor Peach to reprogram the city’s traffic control system to leave them an easy exit route, in three Mini’s driven by Dominic and pals, while causing chaos throughout the rest of the city.
Leaving aside the possibility of a conviction for a conspiracy offence for the moment, what would happen if there was no joint enterprise? Each member of the gang knows what the purpose of the group is. Each has his particular task assigned to him. It would be a mockery to say that Professor Peach is not guilty of his part in the robbery because he was not there even though without his computer prowess the robbery could never have occurred. It would be silly to say that Dominic and pals are not guilty because they were not at the scene of the robbery and merely loaded the gold into their Minis and drove it out of the city.
On the same basis, it is a nonsense to say that a group of criminal associates who agree to murder a rival and each take their allocated roles are not guilty of murder simply because only one of them pulls the trigger.
With respect to the Justice for Wesley campaign I do not think their complaint is with joint enterprise so much as with the jury’s acceptance of the prosecution evidence over the defence case. Saying that somebody should not be guilty simply because of a perceived fault with joint enterprise seems, to my mind, to accept involvement in the offence and to be an argument for conviction for an offence other than murder. I do not think this is what Justice for Wesley is actually saying. Having read their website it looks more to me like they are arguing that he is completely uninvolved and that the evidence at trial was too weak and should never have been left to the jury at all. All I know about the case is what is reported in the press and on the campaign’s own website. All I can say is that I find it difficult to believe that what is reported is the extent of the prosecution evidence. If it is I cannot fathom how it passed the evidential test, let alone got past the half-time point in the trial or led the jury to a conviction. But that has nothing at all to do with joint enterprise!