The law on Joint Enterprise has been ‘wrongly interpreted’ for over 30 years

25 February 2016

The Supreme Court has today ruled that a key test imposed by judges in assessing guilt in joint enterprise cases has been wrongly interpreted since a 1984 judgment by the judicial committee of the Privy Council.

Under the doctrine of joint enterprise, an individual who assists or encourages the committing of a crime can be held as legally responsible as the person who carries that crime out. Today's ruling comes in relation to two joint enterprise cases, one in Leicester and the other in Jamaica, where men were convicted of murder. Both murder convictions have now been overturned.

The Supreme Court found that courts had been 'in error' in treating the fact that a co-accused had foresight that the principal attacker might carry out a killing as sufficient proof of guilt in assisting or encouraging them. The Justices said that foresight was only evidence of the person's intention to encourage a crime, not proof for a conviction of the crime committed.

The ruling, which has been welcomed by lawyers and organisations who have campaigned to change the law, means that convicted murderers could appeal to have their convictions overturned. An appeal may be allowed if substantial injustice can be demonstrated, but it should be noted that a convicted person would not be cleared simply because the law that was applied at the time of the conviction was subsequently found to have been mistaken.

There are likely to be future cases where gang members will no longer be convicted of murder under long-standing principles of joint enterprise. In cases where there is a spontaneous outbreak of multi-handed violence, the evidence may be too nebulous for the jury to find that there was some form of agreement. However, there will still be cases where gangs will be convicted as before. 

Today's ruling has no bearing on types of joint enterprise where two or more people join in committing a single crime, or where a defendant assists or encourages the principal offender to commit a single crime. Joint enterprise cases where there is clear evidence of someone encouraging murder to be committed will also be unaffected. Instead appeals are likely to come from cases where evidence is less clear that the secondary defendants were aware of the consequences of what would happen.

As Lord Neuberger said in his summary of today's unanimous judgment, the effect of the ruling “is to bring the mental element required of a secondary party back into line with that which is required of the principal and to bring the law back to the principles which had been established before the law took a wrong turn”.

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This is not legal advice; it is intended to provide information of general interest about current legal issues.