Joint Enterprise Liability and the Law - Report Example

Joint Enterprise Liability and the Law and Joint Enterprise Liabilityand the Law Allegations have been put across that the law relating to the joint enterprise is intricate, controversial and draconian. The above comment will clarify why it is so while considering the association amid joint initiative and murder. The term involvement will be put to use here as a general term surrounding accessorial obligation and joint enterprise. To preserve this comment at a rational extent, an assumption will be made regarding particular understanding of the law of complicity. The issue of complicity emerges when two or more individuals are engaging in committing a criminal offence. It appears relatively forthright, but the actual simplicity conceals the challenging legal questions involved. The difficulties concentrate on two issues. First, a question arises whether supplementing or inspiring crime is a body of law distinct from where there is a common objective to commit an offence. The article purposefully seeks to pursue the concept of joint enterprise, provide a detailed account regarding the foundation of the concept of joint enterprise and its application in the legal fraternity. With regards to the definition of the actual meaning of the term joint enterprise, Hughes LJ in R v A, defines the collective plan as; i. Where two or more persons collude in committing a criminal act, in circumstances where all the joint principles are in complete effect. ii. Where one individual aids and abets the other to commit a single crime, as for instance where A2 offers A1 with a weapon for the purpose of A1 using it in a robbery, or transports A1 to close to the place where the crime is to be undertaken, and/or delays around as a getaway man so as to aid A1 to escape subsequently. iii. Where A1 and A2 contribute together in conducting the crime and in the course of the offence D1 commits a second crime (crime B) which A2 had foreseen he could commit In the initial circumstance, the law of complicity is candid and flawless as the two or more individuals are joint principals in a joint enterprise. In the subsequent situation, this is supporting crime and illustrates What the common plan is, in several cases, purely an event of accessorial obligation. It is with the third account that the law courts have had challenges in defining secondary responsibility. To take a famous example: Steve and Peter come to an agreement to rob Victor’s house. Steve, aware of Peter’s ferocious nature, implores him to desist from attacking Victor should he notice their robbery activity. Peter agrees that he will not be violent, but Steve, cognizant of Peter’s nature, anticipates that Peter may not keep his promise. At the course of the burglary Peter assaults Victor, consequently killing him. If Peter killed Victor with a purpose to murder or to cause severe harm, he would be accountable for crime. Steve would, on the other hand, be guilty of the collateral offence if he foresaw an actual risk that, during the robbery, Peter may slay Victor with intention to kill or effect grave damage. The principle initially itemised by the Privy Council in R v Chan Wing-Siu and acknowledged as English law in R v Hyde. The Hyde principle was used by the House of Lords in Republic v Powell & Daniels; English and in R v Rahman. Steve would be held liable for murder since he was instinctively irresponsible as to the risk of the occurrence. There is a partial necessity to demonstrate that Steve supported the killing nor that he had the intent or approved that the felony be committed. Whereas both Peter and Steve are mutually responsible for murder and would obtain the compulsory life punishment, there is no equality of accountability. So the law is draconian on Steve. An ethical foundation for Steve being accountable for any crime committed by Peter that is collateral to their joint enterprise is that in having a mutual drive to undertake the burglary, anticipating that this may result in Peter similarly committing the murder crime, he has increased in a responsible way the risk that the assassination crime may occur. It is on this third occasion that accessorial obligation and common enterprise part corporation as in respect of the collateral transgression it is the law of joint enterprise only that oversees the secondary accountability. To supplement to the complexity of the law, numerous recent Court of Appeal verdicts have apprehended that it is satisfactory that Steve foresaw the criminal act of killing as well as shine over the prerequisite that for Steve, to be found liable for murder, needs also to predict Peter’s homicidal intent. The above argument reflects Lord Bingham’s obiter dictum in the case of R v Rahman, where he acknowledged the Crown’s argument that in order to convict a subordinate party of murder, everything that party would have to predict is the principal’s Actus Reus that stands for the act of the unlawful murder of the victim. Anticipation of the principal’s homicidal intent would not be necessary for subordinate obligation for murder. Conversely, the significance of the Hyde principle is that there possibility that a subordinate party could be found liable for felony on the basis of sheer association with a joint enterprise, for instance, through being an affiliate of a gang. In R v Mitchell, the perpetrator and her associates engaged in a ferocious argument that led to a fight over a taxi with a different set of persons. After the fight, the respondent’s co-defendants went to a neighbouring house and equipped themselves with weaponry. The defendant did not work with the entire group. They came back to the car park where they met their opponents and pursued them. Upon catching up with them, an attack ensued and severe head injuries were initiated by the victims. During the brawl, the suspect was in the car park looking for her shoes. The case was left open to the jury to determine whether the enterprise that the respondent had joined during the fight over the taxi still continued at the time of a severe attack. She, through her continued presence in the car square, had not withdrawn from it. The perpetrator was consequently sentenced for murder although it was acknowledged that she may not have taken part in the second attack at all. The Appeal Court dismissed her application for appeal claiming that by sticking to the area, the suspect was still within the joint enterprise. The verdict demonstrates the severity of the law of joint enterprise as the conclusion of the Hyde principle is that: Prosecutions for homicide on the basis of collective enterprise have become additionally common in recent years and are progressively focussed on proof of association. There is accumulative possibility for cases to be left to judges principally on the basis of evidence of affiliation amid the defendants; a tendency that we believe is directly associated with the Hyde principle. If the Hyde principle is to remain to be a portion of the common law of joint enterprise, then it should be applied in a reliable and vigorous way to elude potential lapses of justice. There should be substantial prima facie proof that the subordinate party foresaw an actual risk that, during the collective initiative, the principal may kill with a purpose to really effect serious injury or kill. Additionally, the principle ought to be complemented by a prerequisite that there must be certain evidence of support of the felony so that it was actually part of a joint enterprise. Presently, the law of joint enterprise is ambiguous, therefore, citizens cannot oversee their future behaviour by it and that raises suspicion as to whether it is acquiescent with Article 7 of the European Convention on Human Rights, which needs the criminal law to be determinable and certain. The Law Commission has made a recommendation regarding the preservation of the Hyde principle for a couple of reasons. First, a subordinate party may avoid the obligation by convincing the bench that the collateral felony of murder was undertaken in a fundamentally different manner from that foreseen by the subordinate party. Furthermore, the inferior party may show that he or she evidently and explicitly withdrew from the initiative before the crime took place. On another account, It is a reputable common law opinion that those accused with murder need to have the necessary Mens Rea; an intent to kill or effect serious bodily harm. One would be ethically irritated if anything less availed when the definitive punishment of life incarceration is the value one pays for undertaking the most atrocious of crimes. Nonetheless, in response to the leading certified problem, that is eventually what their Lordships were requested to deliberate whether the subordinate party has to hold the intent himself or is sheer foresight of the principle’s intention adequate to impose criminal obligation for an offense that the subordinate party held no objective to undertake. Lord Hutton initiated his principal judgement addressing that same issue, maintaining that their Lordships should determine if such opinion had been advocated by previous authorities and if there is such a conventional principle, it might stand as decent law with respect to the verdict of this House that forethought is not adequate to constitute Mens Rea for murder. In interpreting whether an established principle exists in the authorities, one should, as his Lordship in the contemporary case states, examines a number of earlier verdicts; particularly R v Smith; Chan Wing-sui v R; R v Hyde; and Hui Chi-ming v The Queen. In Smith, a brawl broke out during the course of a disagreement amid a set of men, whereby one of the males stabbed a bar attendant to death. All the four men were taken to court and charged with murder; Smith appealed that he was separate during the stabbing; however, he knew that Atkinson was in possession of a dagger. He was sentenced at trial for manslaughter ensuring what Slade J referred to in the present-day case as an exclusively irreproachable course to the jury that any person who is a party to a violence which results in a criminal offence is an affiliate to the crime. Slade J also accredited that the position proclaimed by the law courts was that any action originating from the rigorous arrangement shall be the complete liability of any person who elects to enter into the illegal venture. The principle established in Smith has continued to be functional in a range of cases, none less so than in Chan Wing-Siu. Sir Robin Cooke’s verdict categorically proclaimed that the criminal liability lies in partaking in the venture with that forethought. This principle was also successively pursued by the Court of Appeal in the Hyde case, where Lord Lane CJ acknowledged Professor Smith’s statement in R v Wakely that there lays a difference amid tacit covenant and prudence and made it vivid that foresight is the appropriate test. Hence, it is apparent, as indicated by Lord Hutton, that; there lays a solid line of power; nonetheless, one must challenge, as their Lordships did, whether such a code exists and has a place in decent law in esteem of the verdicts of the House of Lords in R v Moloney and R v Hancock. Prima facie, one would be pardoned for fathomably considering that the influential judgment of their Lordships in Moloney had provided confidence and transparency to this challenging area of law. Their Lordships unambiguously reiterated that murder needs unequivocal intention; anything other than an intention to execute or perpetrate serious bodily injury will certainly fail to suffice. Moreover, prudence of a consequence could provide no more than proof of the existence of an impartial and categorically does not habitually conclude the existence of intent. This understanding was highlighted by Lord Scarman in Hancock. Conversely, reliance on this judgment would provide an implausible anomaly. Their Lordships emphatically proclaim that it is inadequate to establish the principal’s Mens Rea for homicide on foreseeability of risk; hitherto in association, a subordinate party may have imposed upon himself a lesser Mens Rea essential than a principal criminal. Where there is one Mens Rea experiment for a primary offender and more secondary examination for a subordinate party who has neither the obligation Actus Reus or Mens Rea for a regular murder charge, that test is patently detrimental to the minor party. However, despite having the chance to overrule explicitly, their Lordships made decisions that the principle was reasonable. Lord Hutton authoritatively justified their rationale, stating that: The common law rules are not built on reason but relate to real concerns and, relative to offences committed in the course of typical enterprises, to the prerequisite to offer adequate fortification to the public functioning in gangs. There are real concerns about weight and significance related to concerns of public policy that validate the principle specified in Chan Wing-Sui v The Queen, that triumph over considerations of harsh logic. The argument epitomises how the strict and intolerant nature of the joint enterprise law reigns supreme. Procedure deliberations, coupled with the necessity for public security and group association restraints, arguably subjugated their Lordships’ power on this common law principle. An additional anomaly ascends from the subsequently certified issue in English on whether a profoundly different rule may be applied. There is a policy of the authorities that prudence of a principle party’s intent is satisfactory to find a conviction for murder on a subordinate party. However, is it reasonable that where a principal party to a venture murders with a lethal weapon, absolutely unknown to the subordinate party and hence, indisputably without prudence, the secondary party must be liable for death. Their Lordships eventually found that if the primary suspect departs from the joint undertaking and commits a primarily different act, the subordinate party shall not be found liable for murder. This policy arguably ascends from the provision specified in Chan Wing-Sui. Indeed Sir Robin Cooke indicated that cases must rely rather on the broader principle whereby a subordinate party is criminally responsible for acts committed by the principle offender of a nature which the former anticipates but does not essentially intend. Conclusively, It has been alleged that the House of Lords’ effort to shed light on the law of joint enterprise in Rahman has proven futile, but a question arise regarding its truthfulness. The law is intricate as the recent verdict in R v Gnango, illustrates, nonetheless, that was an unfamiliar and exceptional case and should be considered as turning on its specifics. In several instances, joint enterprise comprises the application of values of accessorial responsibility they shelter the same ground. Where they isolate, the Hyde principle, as skilled, applies. That code should be pursued in a more vigorous way. It is submitted that the law also should be enhanced by the Hyde principle being improved with the prerequisite that there should also be evidence of supporting or inspiring the murder, that is. There is both Mens Rea and an Actus Reus. These modifications should inhibit subordinate party convictions for murder being based on sheer association. It would mean accessorial obligation and joint enterprise would absolutely overlap. The House of Commons Justice Committee has suggested that the Director of Public Prosecution issue direction as to the appropriate threshold at which association turn out to be evidence of participation in the crime. List of references Archbold, J. F. (1992). Archbold: pleading, evidence, and practice in criminal cases. London, Sweet & Maxwell. Allen, M. J. (2013). Textbook on criminal law. Ashworth, A., & Horder, J. (2013). The Principles of criminal law. Blecker, R. (2013). The death of punishment: searching for justice among the worst of the worst. 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