Joint Enterprise (17/07/15)
Here's an interesting article by Joshua Rozenberg who writes about legal affairs on a regular basis for The Guardian.
Now I have only one personal experience of a 'joint enterprise' and it involved a neighbour in the building where I live who, along with three other (male) friends got completely drunk one day watching Scotland playing international rugby (no excuse, I know) and then managed to wreck the lift by treating the machining as a trampoline later that evening on they way out for more booze.
The lift got stuck and the four drunken apes were rescued with my help and that of the Fire and Rescue Service, but their jolly jape caused over £6,000 worth of damage which was reported to the police and prosecuting authorities.
None of the individuals were willing to own up to their culpability and they just all blamed each other or said they couldn't recall what happened.
As you would expect I was in favour of charging all four scumbags with vandalism and the crime of committing a 'joint enterprise' but the procurator fiscal service said there was insufficient evidence.
Another case in point is the racist murder of Stephen Lawrence who was attacked and killed by a gang of young men in London as he walked home with a friend one night.
But if you ask me all of them were guilty of Stephen's murder, not just the one who actually wielded the knife, because that individual was actively encouraged to commit his cowardly crime and did so with the active encouragement and mob-like behaviour of his vile friends.
So I have no difficulty at all unsaying that they are all as bad as each other.
If you encourage someone to kill, are you guilty of murder?
The supreme court is soon to consider the law of joint enterprise, in which secondary participants are charged with the same offence
But if you ask me all of them were guilty of Stephen's murder, not just the one who actually wielded the knife, because that individual was actively encouraged to commit his cowardly crime and did so with the active encouragement and mob-like behaviour of his vile friends.
So I have no difficulty at all unsaying that they are all as bad as each other.
If you encourage someone to kill, are you guilty of murder?
By Joshua Rozenberg - The Guardian
The supreme court is soon to consider the law of joint enterprise, in which secondary participants are charged with the same offence
‘Allowing secondary participants to be charged with lesser offences would require legislation. So would abolishing the mandatory sentence for murder.' Photograph: Sarah Flanagan / Rex Features
Does the law of joint enterprise cause injustice? That’s the question the supreme court will confront in October. If its answer is yes, the UK’s most senior judges will have the chance to put things right.
The court has agreed to hear an appeal by Ameen Hassan Jogee, 26, who is serving a sentence of life imprisonment with a minimum of 18 years. Jogee was convicted of murder even though it was his friend Mohammed Adnam Hirsi, 28, who killed their victim, Paul Fyfe, 47.
The jury heard that Jogee and Hirsi went to Fyfe’s girlfriend’s home in Leicester in the early hours of 10 June 2011. While Jogee remained near the front door, Hirsi went in, took a knife from the kitchen block and stabbed Fyfe in the chest.
Joint enterprise murder: ancient law jailing hundreds, say FOI reports
It was what happened earlier that led to Jogee’s conviction under the principles of joint enterprise. He and Hirsi had spent the evening together, getting drunk and taking cocaine. Shortly after midnight, they visited Fyfe’s girlfriend’s home. While there, Jogee picked up a knife and waved it around, threatening to “shank” (stab) another man.
Fyfe’s girlfriend said they should leave before Fyfe got home. Jogee made it clear that seeing Fyfe didn’t worry him. Then Jogee and Hirsi began to wind each other up, saying they could “take Fyfe out”.
The two men left, only to return after Fyfe had got back. Jogee was outside, shouting and damaging Fyfe’s car. At one stage, Jogee threatened to smash a brandy bottle over Fyfe’s head. Jogee was “egging” Hirsi to “do something” to Fyfe, according to Fyfe’s girlfriend. Hirsi then stabbed Fyfe.
Needless to say, the jury heard a lot more evidence than that. Hirsi was convicted of murder and ordered to serve a minimum of 22 years in prison. Jogee was convicted on the basis that he had encouraged Hirsi to stab Fyfe. Neither defendant gave evidence at their trial.
At his appeal, Jogee’s counsel argued that he could be convicted only if he knew Hirsi had picked up a weapon and had encouraged him to stab Fyfe. The trial judge, Mrs Justice Dobbs, who noted that both men knew there was a knife in the kitchen, told the jury it was for them to decide whether Jogee realised Hirsi might use it. Three appeal judges, headed by Lord Justice Laws, said that Dobbs had directed the jury correctly and dismissed Jogee’s appeal against conviction.
Joint enterprise is part of English common law, which means it has been developed by the judges over the centuries. It is constantly changing. But the basic principle is simple enough. If you help or encourage someone to commit an offence, you can be just as guilty as the person who did it.
Somebody who carries out a criminal act with the required intent – the person who deliberately fires the gun, for instance– is known as a principal. The person who assists or encourages the principal – in old language, aiding, abetting, counselling or procuring the offence – is known as an accessory or secondary party. Legislation passed in 1861 says that an accessory may be punished in the same way as a principal.
A handy summary of the law has been published by the crown prosecution service. This makes it clear that the accessory must intend to assist or encourage the principal. In addition, they must have knowledge of the essential elements of the principal’s intended offence. Exactly what level of foresight is needed has been the subject of much discussion by the courts.
A traditional gangland shooting might involve two people: one to fire the gun and another to drive the getaway car. The shooter will not pull the trigger unless he has a means of escape. The driver knows there will be no shooting without him. So both are guilty of murder. The same principle should apply if one person encourages another to pull the trigger.
Does the law of joint enterprise cause injustice? That’s the question the supreme court will confront in October. If its answer is yes, the UK’s most senior judges will have the chance to put things right.
The court has agreed to hear an appeal by Ameen Hassan Jogee, 26, who is serving a sentence of life imprisonment with a minimum of 18 years. Jogee was convicted of murder even though it was his friend Mohammed Adnam Hirsi, 28, who killed their victim, Paul Fyfe, 47.
The jury heard that Jogee and Hirsi went to Fyfe’s girlfriend’s home in Leicester in the early hours of 10 June 2011. While Jogee remained near the front door, Hirsi went in, took a knife from the kitchen block and stabbed Fyfe in the chest.
Joint enterprise murder: ancient law jailing hundreds, say FOI reports
It was what happened earlier that led to Jogee’s conviction under the principles of joint enterprise. He and Hirsi had spent the evening together, getting drunk and taking cocaine. Shortly after midnight, they visited Fyfe’s girlfriend’s home. While there, Jogee picked up a knife and waved it around, threatening to “shank” (stab) another man.
Fyfe’s girlfriend said they should leave before Fyfe got home. Jogee made it clear that seeing Fyfe didn’t worry him. Then Jogee and Hirsi began to wind each other up, saying they could “take Fyfe out”.
The two men left, only to return after Fyfe had got back. Jogee was outside, shouting and damaging Fyfe’s car. At one stage, Jogee threatened to smash a brandy bottle over Fyfe’s head. Jogee was “egging” Hirsi to “do something” to Fyfe, according to Fyfe’s girlfriend. Hirsi then stabbed Fyfe.
Needless to say, the jury heard a lot more evidence than that. Hirsi was convicted of murder and ordered to serve a minimum of 22 years in prison. Jogee was convicted on the basis that he had encouraged Hirsi to stab Fyfe. Neither defendant gave evidence at their trial.
At his appeal, Jogee’s counsel argued that he could be convicted only if he knew Hirsi had picked up a weapon and had encouraged him to stab Fyfe. The trial judge, Mrs Justice Dobbs, who noted that both men knew there was a knife in the kitchen, told the jury it was for them to decide whether Jogee realised Hirsi might use it. Three appeal judges, headed by Lord Justice Laws, said that Dobbs had directed the jury correctly and dismissed Jogee’s appeal against conviction.
Joint enterprise is part of English common law, which means it has been developed by the judges over the centuries. It is constantly changing. But the basic principle is simple enough. If you help or encourage someone to commit an offence, you can be just as guilty as the person who did it.
Somebody who carries out a criminal act with the required intent – the person who deliberately fires the gun, for instance– is known as a principal. The person who assists or encourages the principal – in old language, aiding, abetting, counselling or procuring the offence – is known as an accessory or secondary party. Legislation passed in 1861 says that an accessory may be punished in the same way as a principal.
A handy summary of the law has been published by the crown prosecution service. This makes it clear that the accessory must intend to assist or encourage the principal. In addition, they must have knowledge of the essential elements of the principal’s intended offence. Exactly what level of foresight is needed has been the subject of much discussion by the courts.
A traditional gangland shooting might involve two people: one to fire the gun and another to drive the getaway car. The shooter will not pull the trigger unless he has a means of escape. The driver knows there will be no shooting without him. So both are guilty of murder. The same principle should apply if one person encourages another to pull the trigger.
‘Exactly what level of foresight is needed has been the subject of much discussion by the courts’. Photograph: Ammentorp Photography/Alamy
But killings can be utterly mindless. A group of youths hang around together. Some carry knives. There is a fight and somebody is stabbed. Should someone at the back of the crowd – or someone who had merely been in touch with the group by phone – be convicted of murder? The campaign group known as JENGbAclaims that the law has gone too far. It recently launched a crowdfunding campaign to support legal submissions in the Jogee appeal.
It must be bad enough to find that your teenage son is involved with what the police regard as a gang. It must be appalling to find that the teenager is facing a mandatory life sentence – with a starting point of 15 years – because somebody he hardly knows has committed murder. And yet we are all responsible for the consequences of our acts. If you go out with people who are carrying knives, it’s no excuse to say you were merely holding the victim down. And getting high on drink or drugs is no excuse.
There is cogent evidence to suggest that the law has gone too far, particularly on the question of foresight. At the end of 2014, the Commons justice committee, then chaired by Alan Beith, recommended an urgent review of whether the threshold for charging secondary participants with murder should be raised. The MPs also suggested allowing those on the periphery to be charged with an offence that does not attract a mandatory life sentence, such as manslaughter.
Allowing secondary participants to be charged with lesser offences would require legislation. So would abolishing the mandatory sentence for murder, which is to blame for so many anomalies in the law. But it should still be possible for the supreme court to limit the use of murder by joint enterprise to cases where the secondary participant clearly foresaw – or certainly should have foreseen – that the person he was assisting or encouraging would commit murder. If the law gets too far out of line with public perceptions of fairness and justice, it’s time for the judges to put it right.
But killings can be utterly mindless. A group of youths hang around together. Some carry knives. There is a fight and somebody is stabbed. Should someone at the back of the crowd – or someone who had merely been in touch with the group by phone – be convicted of murder? The campaign group known as JENGbAclaims that the law has gone too far. It recently launched a crowdfunding campaign to support legal submissions in the Jogee appeal.
It must be bad enough to find that your teenage son is involved with what the police regard as a gang. It must be appalling to find that the teenager is facing a mandatory life sentence – with a starting point of 15 years – because somebody he hardly knows has committed murder. And yet we are all responsible for the consequences of our acts. If you go out with people who are carrying knives, it’s no excuse to say you were merely holding the victim down. And getting high on drink or drugs is no excuse.
There is cogent evidence to suggest that the law has gone too far, particularly on the question of foresight. At the end of 2014, the Commons justice committee, then chaired by Alan Beith, recommended an urgent review of whether the threshold for charging secondary participants with murder should be raised. The MPs also suggested allowing those on the periphery to be charged with an offence that does not attract a mandatory life sentence, such as manslaughter.
Allowing secondary participants to be charged with lesser offences would require legislation. So would abolishing the mandatory sentence for murder, which is to blame for so many anomalies in the law. But it should still be possible for the supreme court to limit the use of murder by joint enterprise to cases where the secondary participant clearly foresaw – or certainly should have foreseen – that the person he was assisting or encouraging would commit murder. If the law gets too far out of line with public perceptions of fairness and justice, it’s time for the judges to put it right.
