Joint Enterprise is a common law doctrine whereby two or more people can be guilty of the same offence. There are three types of joint enterprise:
Two or more people jointly commit an offence and therefore are all guilty of it as primary offenders
One person commits an offence as the primary offender and the second person ‘assists or encourages’ that offence as the secondary offender
Two or more people commit an offence (offence 1) and during the course of that offence one of the group commits a second offence. All those involved with offence one will also be guilty of offence two so long as offence two was foreseeable.
Joint enterprise arises where two or more people together embark on the commission of a criminal offence. The two parties may expressly agree to commit a particular offence or this may be an unspoken understanding DPP v Nedrick-Smith .
The Law is Flawed – Joint Enterprise Murder
To be found guilty of Murder, the principle offender (the one delivering the fatal blow) must have the necessary Mens Rea (mental element). For murder this must be an intent to kill or commit serious bodily harm. However for a secondary offender (the person who did not deliver the fatal blow) they must merely foresee the harm as a possibility R v English .
The secondary party must also participate or encourage the commission of the offence. Participation and encouragement can be either words or actions at the time of the offence however mere presence alone can amount to encouragement so long as the defendant intends to encourage by that presence. Therefore active participation is not required to be deemed part of a joint enterprise Tait .
Joint enterprise is currently finding convictions for murder in spontaneous affrays in which a death occurs. In situations such as these there is often no premeditation or expressed agreement to commit an affray as the violence can erupt spontaneously with both sides equally instigating it.
With this in mind, if a person is present at the scene of a spontaneous fight, which involves someone he is associated with, he can be convicted for any harm caused within the fight that he can foresee the possibility of, unless he withdraws from the scene. This withdrawal must be communicated to all involved and must serve ‘unequivocal notice’.
You will be found guilty for two reasons:
1) You foresaw the possible harm that the fight could cause
2) Your presence amounted to intentional encouragement as you failed to withdraw
Within the context of a fast moving fight it can be very difficult to withdraw from the violence which is necessary to not be convicted under the joint enterprise doctrine. In Becerra (1975) it was held that a participant in an affray must communicate his withdrawal to the concerning parties and that communication must 'serve unequivocal notice'. Additionally R v Robinson (2000) held that when parties join together for a spontaneous affray, there must be a communicated withdrawal if someone wishes to disassociate themselves from the attack.
With this in mind it can be very difficult for a defendant to disassociate himself from an affray once it has started. This is especially apparent in some of the younger more inexperienced defendants who stand on the peripheral of a fast moving attack. They may be struggling with their decision to stay still, participate, break up the violence, or run away and all the while their mere presence alone is amounting to encouragement of the affray. In this more frequent and realistic scenario a communicated withdrawal doesn't seem like a realistic choice for someone faced with a high level of violence around them.
However if a person does walk away from a violent affray, this can still be held as not 'serving unequivocal notice'. In R v Mitchell (2008) the defendant and her friends were involved in an affray outside a taxi rank. The fight came to an end and the defendant left the scene to go in search of her shoes she had left in the car park. Her friends and co-defendants had also left the scene however unfortunately for the defendant they had only left to visit a local house to retrieve weapons and continue the attack. Upon arrival back at the taxi rank the co-defendants, unbeknown to the defendant, chased the victim around the corner and attacked the victim to such an extent he later died from his injuries. The defendant on CCTV still remained in the car park during the entirety of the second attack. However the jury held that as she participated during the first affray she therefore foresaw that serious harm could have occurred and as her withdrawal was not communicated it could not have served 'unequivocal notice' upon the others involved in the violence. She is now serving a life sentence for murder despite not being present.