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MENS REA IN JOINT ENTERPRISE: A ROLE FOR ENDORSEMENT?

Published online by Cambridge University Press:  21 August 2015

Beatrice Krebs
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Abstract

This paper argues that the problems commonly associated with the joint enterprise doctrine might be alleviated by supplementing the cognitive mens rea standard of foresight with a volitional element that looks to how the defendant related to the foreseen risk. A re-examination of the case law suggests that a mens rea conception of foresight plus endorsement might be within interpretative reach. The paper considers possible objections to such a development but ultimately rejects them. It concludes that it is not necessary to wait for Parliament to put in place reforms: joint enterprise is a creature of the common law, and the common law is able to tame it unaided.

Keywords

criminal lawjoint enterprisemurderaccessorial liabilitymens rea
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Articles
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The Cambridge Law Journal , Volume 74 , Issue 3 , November 2015 , pp. 480 - 504
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Copyright © Cambridge Law Journal and Contributors 2015 

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References

1 Similar examples are discussed in R v Hyde [1991] 1 Q.B. 134 (CA), 138D; and R v Gnango [2011] UKSC 59; [2012] 1 A.C. 827, at [14].

2 R v Woollin [1999] 1 A.C. 82 (HL).

3 R v Cunningham [1982] A.C. 566 (HL).

4 See R v Rahman [2008] UKHL 45; [2009] 1 A.C. 129, at [33], per Lord Rodger: “[I]f A and B agree to kill their victim and proceed to attack him with that intention, they are both guilty of murder, irrespective of who struck the fatal blow. In Lord Hoffmann's words (Brown v The State [2003] UKPC 10, para 13), they are engaged in a ‘plain vanilla’ joint enterprise.”

5 R v Powell [1999] 1 A.C. 1 (HL); Rahman [2008] UKHL 45; [2009] 1 A.C. 129; R v Mendez and Thompson [2010] EWCA Crim 516; [2011] Q.B. 876; R v A and others [2010] EWCA Crim 1622; [2011] Q.B. 841; R v Stringer [2011] EWCA Crim 1396; [2012] Q.B. 160; R v Carpenter [2011] EWCA Crim 2568; Gnango [2011] UKSC 59; [2012] 1 A.C. 827; R v Jogee [2013] EWCA Crim 1433; R v Odegbune [2013] EWCA Crim 711; R v Winston and Collins [2015] EWCA Crim 524.

6 Gnango [2011] UKSC 59; [2012] 1 A.C. 827, at [42], per Lord Phillips P.S.C. and Lord Judge C.J.; A and others [2010] EWCA Crim 1622; [2011] Q.B. 841, at [27], per Hughes L.J.

7 Virgo, G., “The Doctrine of Joint Enterprise Liability” (2010) Arch. Rev. 6Google Scholar.

8 The Supreme Court adopted this term (coined by Professor Sir John Smith) in Gnango [2011] UKSC 59; [2012] 1 A.C. 827, at [15].

9 See e.g. Clarkson, C.M.V., “Complicity, Powell and Manslaughter” [1998] Crim.L.R. 556, pp. 557–58Google Scholar; Virgo, “The Doctrine”, p. 9; Virgo, G., “Joint Enterprise Liability Is Dead: Long Live Accessorial Liability” [2012] Crim.L.R. 850, p. 854Google Scholar; Wilson, W. and Ormerod, D., “Simply Harsh to Fairly Simple: Joint Enterprise Reform” [2015] Crim.L.R. 3, pp. 5–21Google Scholar; Crewe, B. and others, “Joint Enterprise: The Implications of an Unfair and Unclear Law” [2015] Crim.L.R. 252Google Scholar.

10 Powell [1999] 1 A.C. 1 (HL), 11, per Lord Mustill, 25, per Lord Hutton.

11 Law Commission, Murder, Manslaughter and Infanticide – Project 6 of the Ninth Programme of Law Reform: Homicide (Law Com No 304, 2006); Law Commission, Participating in Crime (Law Com No 305, 2007); House of Commons Justice Committee, Joint Enterprise – Eleventh Report of Session 2010–12, vol. I (HC 1597, 2012); House of Commons Justice Committee, Joint Enterprise: Follow-Up – Fourth Report of Session 2014–15 (HC 310, 2014).

12 Kenneth Clarke indicated that the Committee's recommendations in relation to consulting on new legislation would not be taken up in the foreseeable future; see <http://www.publications.parliament.uk/pa/cm201012/cmselect/cmjust/1901/190104.htm> (accessed 21 May 2015). Chris Grayling was even less sympathetic; see <http://www.publications.parliament.uk/pa/cm201415/cmselect/cmjust/1047/104704.htm> (accessed 21 May 2015).

13 Jogee [2013] EWCA Crim 1433. See <https:// www.supremecourt.uk/docs/permission-to-appeal-2015–0102.pdf> (accessed 21 May 2015).

14 A and others [2010] EWCA Crim 1622; [2011] Q.B. 841, at [9]–[10]; Gnango [2011] UKSC 59; [2012] 1 A.C. 827, at [93]. See also CPS Guidance on: Joint Enterprise Charging Decisions, available at <http://www.cps.gov.uk/legal/assets/uploads/files/Joint_Enterprise.pdf> (accessed 21 May 2015).

15 Krebs, B., “Joint Criminal Enterprise” (2010) 73 M.L.R. 578CrossRefGoogle Scholar. On this understanding of how the concepts of co-perpetration, aiding and abetting, and joint enterprise relate to one another, there are only two ways in which an individual can become complicit in someone else's crime: joint perpetration and aiding and abetting. Joint enterprise only comes into play to determine the scope of either head of liability. In this, it fulfils a necessary and important function.

16 See Law Commission, Consultation Paper No. 131, Assi sting and Encouraging Crime (1993), at [2.123]; Dyson, M., “More Appealing Joint Enterprise” [2010] C.L.J. 425CrossRefGoogle Scholar.

17 Crewe et al., “Joint Enterprise”, pp. 255–68.

18 Pedain, A., “Intention and the Terrorist Example” [2003] Crim.L.R. 579, p. 593Google Scholar.

19 Ibid., at p. 586, emphasis in original.

20 Woollin [1999] 1 A.C. 82 (HL).

21 Pedain, “Intention and the Terrorist Example”, p. 586, emphasis in original.

22 Sullivan, G.R., “The Law Commission Consultation Paper on Complicity: Part 2: Fault Elements and Joint Enterprise” [1994] Crim.L.R. 252, p. 261Google Scholar. See also Virgo, “Joint Enterprise Liability Is Dead”, pp. 858–60.

23 The House of Commons Justice Committee heard (anecdotal) evidence to the effect that the current law is applied inconsistently. But as its report points out, this evidence is difficult to verify in the absence of official statistics. The Committee has recommended that the relevant data be collected in future; see House of Commons Justice Committee, Joint Enterprise – Eleventh Report of Session 2010–12, pp. 10–11.

24 Powell [1999] 1 A.C. 1 (HL), 14, per Lord Steyn. S's mental state, falling short of intention (even in the oblique sense), must be one of subjective recklessness. However, it can be doubted whether this amounts to Cunningham recklessness. Jury directions focus on S's foresight; foresight is not synonymous with recklessness in the Cunningham sense which requires the defendant consciously to have taken an unreasonable risk. This latter limb is conspicuously absent in cases decided under joint enterprise principles. See also A. Ashworth and J. Horder, Principles of Criminal Law, 7th ed. (Oxford 2013), 439: “Thus the basis of joint enterprise liability is now a restricted form of (subjective) recklessness, similar in spirit to the Maxwell decision.”

25 On these and related concerns, see most recently The Bureau of Investigative Journalism, Joint Enterprise – An Investigation into the Legal Doctrine of Joint Enterprise in Criminal Convictions (April 2014), 23–31.

26 E.g. text messages sent from the scene of crime B.

27 Arguably, Odegbune [2013] EWCA Crim 711 is a case of this kind: although S had orchestrated the event (a fight between rival groups), he was chasing another boy at the time of the murder and so did not actually encourage the killing of V. However, it is arguable that his overall conduct shows not just foresight, but endorsement of the possibility of the fight turning lethal.

28 E.g. filming of P's commission of crime B.

29 For an example, see R v Broda [2015] EWCA Crim 1000 (CA): S bought Ps a beer after the assault.

30 See note 12 above.

31 The Court of Appeal suggests that there are three categories of case in which resort is had to the term joint enterprise; see A and others [2010] EWCA Crim 1622; [2011] Q.B. 841 (CA), at [7], 845, per Hughes L.J.: “(i) Where two or more people join in committing a single crime, in circumstances where they are, in effect, all joint principals …. (ii) Where D2 aids and abets D1 to commit a single crime …. (iii) Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a second crime (crime B) which D2 had foreseen he might commit.” Likewise, Toulson L.J. in Stringer [2011] EWCA Crim 1396; [2012] Q.B. 160 (CA), at [57]. D. Ormerod (ed.) subdivides these categories still further and identifies five joint enterprise situations: see Smith and Hogan's Criminal Law, 13th ed. (Oxford 2011), 213. There is thus no settled taxonomy of joint enterprise cases. See also R. Fortson Q.C., “Inchoate Liability and the Part 2 Offences under the Serious Crime Act 2007” in A. Reed and M. Bohlander (eds.), Participation in Crime – Domestic and Comparative Perspectives (Farnham, Surrey, UK; Burlington, VT, 2013), 173, p. 202: “[I]t is doubtful that there is consensus among criminal law practitioners as to what ‘joint enterprise’ means.”

32 Kirby J. in Clayton v The Queen (2006) 168 A. Crim. R. 174, at [63].

33 This choice of terminology – common rather than joint intention – is potentially misleading: a joint enterprise requires concerted action on the basis of an understanding that is shared between the actors. To describe an intention as common (to two or more actors) might suggest that it can be held concurrently, namely individually, without one actor being aware that the other has the same intention.

34 Gnango [2011] UKSC 59; [2012] 1 A.C. 827 (SC), at [42], per Lord Phillips and Lord Judge.

35 See e.g. R v Badza [2009] EWCA Crim 2695, at [32]–[33]: Sir Anthony May described the joint enterprise as “a late night outing together which, as the appellant must have foreseen, might result in their participation in violence during which [the principal offender] … might use the knife aggressively with the requisite intent for murder”. Such a loosely circumscribed venture (crime A) is not a particularly strong candidate to bear the load of S's conviction, especially where P's offence (crime B) constitutes murder. In fairness to his Lordship, it becomes clear later in his judgment that he does not think that a “late night outing”, not being criminal in itself, can ever constitute “crime A” for the purposes of joint enterprise. The quote nevertheless demonstrates that we are on a slippery slope. It does indeed not take much to infer an agreement to commit a crime, and this becomes clear in the judge's directions to the jury expressly approved by his Lordship. Thus, the judge said that “agreement to commit an offence may arise on the spur of the moment. Nothing needs to be said at all. An agreement can be inferred from the behaviour of the parties”.

36 Although the mere fact that S participated in crime A when he had foresight of crime B being possibly committed by his associate is said to amount to assistance and encouragement of crime B.

37 In Mendez and Thompson [2010] EWCA Crim 516, at [18]–[23] and Stringer [2011] EWCA Crim 1396; [2012] Q.B. 160, at [47]–[51], Toulson L.J. suggested that, in such cases, S's liability is based on a broad concept of causation.

38 An implied agreement between P and S to commit crime A seems to suffice.

39 See evidence given by Tim Moloney Q.C. and Simon Natas, cited in House of Commons Justice Committee, Joint Enterprise – Eleventh Report of Session 2010–12, p. 8. The CPS Guidance on: Joint Enterprise Charging Decisions, available at <http://www.cps.gov.uk/legal/assets/uploads/files/Joint_Enterprise.pdf> (accessed 21 May 2015), issued in December 2012 in response to concerns raised in front of the House of Commons Justice Committee, now states that “without some participation by D … association with or membership of a group or gang” is insufficient to support a charge of joint enterprise (at [36]) and that “D's association with P or a gang cannot, on its own, make D complicit in a joint enterprise” (at [46]). However, according to [48]–[49], “[t]here are many ways in which D's links with P or a group or gang can form part of the circumstantial evidence in a case. … Where such association evidence is relied on, the circumstances of the association of D with P, together with the other evidence in the case, must give rise to the inference that D was assisting or encouraging P's offence”.

40 On the (contested) idea that criminal liability is to be ascribed in accordance with moral responsibility, see R.A. Duff, Intention, Agency and Criminal Liability (Oxford 1990), 103–04 (with reference to R.A. Duff, Trials and Punishment (Cambridge 1986), chs. 3–4).

41 See the case studies in The Bureau of Investigative Journalism, Joint Enterprise, pp. 19–31.

42 Some raise the question whether the foresight element does even have to relate to death as opposed to acts committed by P with the intention of killing or causing GBH by those acts; see Wilson and Ormerod, “Simply Harsh”, pp. 5–6.

43 Rahman [2008] UKHL 45; [2009] 1 A.C. 129, at [36], per Lord Rodger.

44 While Powell [1999] 1 A.C. 1 (HL), which was not entirely clear on this point, has been taken to mean that joint enterprise is an all or nothing approach (resulting either in a murder conviction or acquittal) – for a recent example, see Mendez and Thompson [2010] EWCA Crim 516, at [21]–[22], [38], per Toulson L.J. – Carpenter [2011] EWCA Crim 2568; [2012] Q.B. 722 (CA) now clarifies that in appropriate cases the defendant may still be charged with murder and manslaughter in the alternative. This is in line with dicta in R v Yemoh [2009] EWCA Crim 930, which was heard in the Court of Appeal after Powell, and reconfirms pre-Powell Court of Appeal decisions such as R v Roberts [2001] EWCA Crim 1594, which support the view that someone, who takes part in an joint venture realising that this will involve some degree of violence, will usually be guilty of (unlawful dangerous act) manslaughter (or murder, if he had the requisite mens rea), if death results.

45 Likewise, Kirby J. in Clayton (2006) 168 A. Crim. R. 174, at [98]. See also Fortson Q.C., “Inchoate Liability”, p. 203: “[I]t is submitted that persons ought not to be stigmatised as “murderers”, and sentenced as such, on mere foresight of what another might do.”

46 Sullivan, G.R., “Participating in Crime: Law Com No 305 – Joint Criminal Ventures” [2008] Crim.L.R. 19, p. 29Google Scholar.

47 Powell [1999] 1 A.C. 1 (HL), 11: “Many would say, and I agree, that the conduct of S is culpable, although usually at a lower level than the culpability of the principal who actually does the deed.”

48 Powell [1999] 1 A.C. 1 (HL), 11.

49 Rahman [2008] UKHL 45; [2009] 1 A.C. 129, at [36].

50 Similar in outcome, if not reasoning, see Virgo, “Joint Enterprise Liability Is Dead”, p. 862: “[S] should not then be convicted of crime B, because his explicit rejection of it means that he is not associated with it.” See also B. Mitchell, “Participating in Homicide” in Reed and Bohlander, Participation in Crime, p. 13: “Supporters [of an increased dangerousness rationale for joint enterprise liability] would presumably argue that if [S] and P agree that a burglary be committed and, having expressed his opposition to any violence, [S] continues with the venture, he cannot then exclude his liability for violence because he still chose to take the risk (that the level of criminality might increase). The problem with this argument is that it is too open-ended.”

51 R v Howe [1987] A.C. 417 (HL); R v Gotts [1992] 2 A.C. 412 (HL).

52 Powell [1999] 1 A.C. 1 (HL), 11.

53 Though the Law Commission notes that “[a]lmost all our consultees were agreed that duress should be a defence to murder in some manner or form”; see Murder, Manslaughter and Infanticide – Project 6 of the Ninth Programme of Law Reform: Homicide (Law Com No 304, 2006), at [1.56].

54 It might be objected that introducing greater subtleties into the jury direction will lead to more scope for appeals. However, ultimately this is an argument premised on an inherent lack of confidence in the jury system. The Law Commission has recently consistently proposed that more gradations of criminal culpability should be introduced. It could also be argued that the recent abundance of appeals from joint enterprise convictions is a function of a (possibly rightly) perceived mismatch between the crude test of foresight and the ordinary person's intuitive moral judgment. It might also be objected that differences in responsibility should be dealt with at the sentencing rather than conviction stage. This raises a more general issue of criminal law – why have gradations of responsibility reflected at the offence stage at all (e.g. murder versus manslaughter) rather than dealing with them at the sentencing stage?

55 On the significance of one's attitude to one's actions, see also e.g. Duff, Intention, Agency and Criminal Liability, pp. 149, 157–73 (recklessness as “practical indifference”) and the discussion of Duff's view in A. Norrie, Crime, Reason and History – A Critical Introduction to Criminal Law (London 1993), 71–72.

56 See Woollin [1999] 1 A.C. 82 (HL); R v Matthews and Alleyne [2003] EWCA Crim 192; [2003] 2 Cr. App. R. 30, at [43]–[45], per Rix L.J.: “In our judgment, however, the law has not yet reached a definition of intent in murder in terms of appreciation of a virtual certainty.”

57 See also D.J. Baker, “Foresight in Common Purpose Complicity/Joint Enterprise Complicity: It Is a Maxim of Evidence, Not a Substantive Fault Element” (Draft Chapter 2013/14: Reinterpreting Criminal Complicity, forthcoming), available at SSRN: <http://ssrn.com/abstract=2507529> (accessed 21 May 2015). However, while Baker concludes that joint enterprise liability should not be established unless it is “shown that the accessory intended the perpetrator to perpetrate the collateral crime (should the need for it arise) for the purpose of effecting their joint enterprise” and that historically, a jury could infer from S's foresight that S “conditionally intended the collateral crimes that resulted from the unlawful joint enterprise”, my view is that liability depended, and should again depend, on whether or not the accomplice has endorsed the perpetrator's collateral crime, with foresight being part of the evidential matrix from which such endorsement can be proved.

58 Likewise, G. Virgo, House of Commons Justice Committee, Joint Enterprise – Eleventh Report of Session 2010–12, p. 8.

59 Gnango [2011] UKSC 59; [2012] 1 A.C. 827 (SC), at [42], per Lord Phillips and Lord Judge: “[L]iability arises where (i) D1 and D2 have a common intention to commit crime A (ii) D1, as an incident of committing crime A, commits crime B, and (iii) D2 had foreseen the possibility that he might do so.”

60 R v Wakely [1990] Crim.L.R. 119.

61 Chan Wing-siu v R [1985] A.C. 168 (PC), 175, per Sir Robin Cooke.

62 Powell [1999] 1 A.C. 1 (HL), 11, per Lord Mustill.

63 A and others [2010] EWCA Crim 1622; [2011] Q.B. 841, at [27], 850, per Hughes L.J. Similarly, R v Sanghera [2012] EWCA Crim 16; [2012] 2 Cr. App. R. 17, at [90], per Aikens L.J.

64 Powell [1999] 1 A.C. 1 (HL), 27, per Lord Hutton.

65 Rahman [2008] UKHL 45; [2009] 1 A.C. 129, at [11], [21]. Likewise, Lord Neuberger at [103].

66 Powell [1999] 1 A.C. 1 (HL) 13 (emphasis added).

67 Chan Wing-siu [1985] A.C. 168 (PC).

68 Ibid., at pp. 177–78.

69 Ibid., at p. 175, emphasis added.

70 A point also noted in Hui Chi-ming v R [1992] 1 A.C. 34 (PC), 53, per Lord Lowry. But see Ashworth and Horder, Principles of Criminal Law, p. 438: “The element of prior agreement or “authorization” seems to be rather weak here.”

71 Hui Chi-ming [1992] 1 A.C. 34 (PC).

72 Hyde [1991] 1 Q.B. 134 (CA).

73 Wakely [1990] Crim.L.R. 119.

74 Hui Chi-ming [1992] 1 A.C. 34 (PC), 50, per Lord Lowry, citing Lord Lane C.J. in Hyde [1991] 1 Q.B. 134 (CA), 139.

75 Ibid.

76 Hui Chi-ming [1992] 1 A.C. 34 (PC), 50–51, per Lord Lowry, citing Lord Lane C.J. in Hyde [1991] 1 Q.B. 134 (CA), 139, emphasis added.

77 Not necessarily in the sense that S has caused crime B.

78 Hui Chi-ming [1992] 1 A.C. 34 (PC), 53, emphasis added.

79 Powell [1999] 1 A.C. 1 (HL), 14.

80 Jogee [2013] EWCA Crim 1433.

81 Krebs, “Joint Criminal Enterprise”, pp. 592–602.

82 Wilson and Ormerod, “Simply Harsh”, pp. 22–23, suggest that S should be liable for joint enterprise murder if he intended or believed that P would kill with murderous mens rea or intentionally cause grievous bodily harm. Likewise M. Dyson, see House of Commons Justice Committee, Joint Enterprise: Follow-up – Fourth Report of Session 2014–2015 (December 2014), available at <http://www.publications.parliament.uk/pa/cm201415/cmselect/cmjust/310/31002.htm> (accessed 21 May 2015), at [43].

83 Thus, in Broda [2015] EWCA Crim 1000, the Court of Appeal considered it relevant that the appellant (who had not himself taken part in the assault in question) bought beers for the active participants.

84 Similarly, Sullivan, G.R., “Intent, Purpose and Complicity” [1988] Crim.L.R. 641, p. 641Google Scholar, who locates “the essence of complicity not in the conduct of A but in A's attitude to the conduct of P. A's conduct becomes essentially evidence of his attitude to P's conduct, it being irrelevant that his conduct may lack any facilitative, let alone casual, impact on the commission of P's offence”. Sullivan's position however differs from the view defended in this article in that he would redefine “the mental element in complicity to incorporate an element of purpose” (p. 642).

85 See e.g. Gnango [2011] UKSC 59; [2012] 1 A.C. 827 (SC), at [45], per Lord Phillips and Lord Judge; Mendez and Thompson [2010] EWCA Crim 516, at [17], per Toulson L.J.; Stringer [2011] EWCA Crim 1396; [2012] Q.B. 160, at [57], per Toulson L.J.; Buxton, R., “Joint Enterprise” [2009] Crim.L.R. 233, p. 243Google Scholar; Mirfield, P., “Guilt by Association: A Reply to Professor Virgo” [2013] Crim.L.R. 577, p. 579Google Scholar; D. Ormerod (ed.), Smith and Hogan's Criminal Law, 13th ed. (Oxford 2011), 228–30; Smith, J.C., “Criminal Liability of Accessories: Law and Law Reform” (1997) 113 L.Q.R. 453, pp. 461–62Google Scholar; Virgo, G., “Making Sense of Accessorial Liability” (2006) Arch. News 6, 9Google Scholar; Virgo, “Joint Enterprise Liability Is Dead”, p. 865; Virgo, G., “Guilt by Association: A Reply to Peter Mirfield” [2013] Crim.L.R. 584, p. 586Google Scholar.

86 Krebs, “Joint Criminal Enterprise”, pp. 584–92.

87 Powell [1999] 1 A.C. 1 (HL), 11.

88 Ibid.

89 See below, p. 20.

90 Stringer [2011] EWCA Crim 1396; [2012] Q.B. 160, at [33].

91 W. Wilson, “Murder and the Structure of Homicide” in A. Ashworth and B. Mitchell (eds.), Rethinking English Homicide Law (Oxford 2000), 21, at p. 30.

92 See e.g. Lord Mustill in Powell [1999] 1 A.C. 1 (HL), 11: “Intellectually, there are problems with the concept of a joint venture.” For a recent overview of the problems, see Wilson and Ormerod, “Simply Harsh”.

93 Wilson and Ormerod also advocate a tightening of the mens rea requirement. In “Simply Harsh”, p. 23, they suggest that the joint enterprise law should be reformed so that “D would now have to believe that P will intentionally kill or do GBH, or would do so if a particular condition was met. D can be legitimately labelled a murderer in either case because he lends support to a criminal venture in which death or GBH is (genuinely) an expressly or tacitly understood outcome”.

94 The Law Commission, Consultation Paper No. 131, Assisting and Encouraging Crime (1993), at [2.123].

95 See e.g. House of Commons Justice Committee, Joint Enterprise – Eleventh Report of Session 2010–12, pp. 8–9, 12–15; The Bureau of Investigative Journalism, Joint Enterprise, pp. 23–31; Krebs, “Joint Criminal Enterprise”, pp. 578–604; Wilson and Ormerod, “Simply Harsh”.

96 Carpenter [2011] EWCA Crim 2568; [2012] Q.B. 722.

97 See also Wilson and Ormerod, “Simply Harsh”, pp. 22–23. Graham Virgo advocates substituting joint enterprise murder with joint enterprise manslaughter; see “JEF 11” (written evidence submitted to the 2014 Justice Committee follow-up inquiry into joint enterprise), available at <http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/justice-committee/joint-enterprise-followup/written/10873.pdf> (accessed 21 May 2015), at [15]–[16].

98 As Lord Steyn observed in Powell [1999] 1 A.C. 1, 14: “Experience has shown that joint criminal enterprises only too readily escalate into the commission of greater offences.”

99 Wilson and Ormerod, “Simply Harsh”, p. 20.

100 Note, however, that the House of Commons Justice Committee in its follow-up inquiry into Joint Enterprise found that “[p]ublication of the CPS's guidance represents a step forward, but the extent to which the guidance has improved prosecutorial practice in the way that we envisaged it might do, by reducing levels of overcharging, is open to question”; see House of Commons Justice Committee, Joint Enterprise: Follow-up – Fourth Report of Session 2014–2015, at [14].

101 In 2010 alone, the Court of Appeal dealt with eight cases involving joint criminal enterprise.

102 Recent examples include R v Paul [2011] All E.R. (D) 122 (Nov), where the trial judge failed to instruct the jury properly on the mental element, and R v Mickevicius [2012] EWCA Crim 1477, a rape by joint enterprise case, where it was found that the trial judge “took the verdicts in a reverse order. He asked the jury for their verdicts in relation to joint enterprise before asking for their verdicts in relation to individual acts. This must have led to confusion and appears to have confused the jury”, at [18], per Moses L.J.

103 The 2012 Report on Joint Enterprise by the House of Commons Justice Committee describes the relevant mens rea rather inaccurately as involving a determination of “what the offender could have anticipated or foreseen”, which amounts to a foreseeability standard rather than one of actual foresight, see House of Commons Justice Committee, Joint Enterprise – Eleventh Report of Session 2010–12, p. 8, emphasis added.

104 Kaveny, M.C., “Inferring Intention from Foresight” (2004) 120 L.Q.R. 81, 95Google Scholar.

105 Although in joint enterprise cases involving several defendants there usually is uncertain and/or contradictory evidence, in many appeal cases where a joint enterprise conviction has been upheld, the jury was assumed to have believed that the defendant's participation in the events went beyond mere presence at the scene with foresight. Evidence such as the defendant's chasing the victim down the road might (as seen against all the evidence) lead a jury to infer endorsement of the fatal consequences; see e.g. Rahman [2008] UKHL 45; [2009] 1 A.C. 129; Yemoh [2009] EWCA Crim 930.

106 Similar in outcome, if not reasoning, is Virgo, “Joint Enterprise Liability Is Dead”, p. 862: “[S] should not then be convicted of crime B, because his explicit rejection of it means that he is not associated with it.” See also Mitchell, “Participating in Homicide”, p. 13.

107 House of Commons Justice Committee, Joint Enterprise – Eleventh Report of Session 2010–12, p. 3.

108 See note 12 above.