Characterising Joint Criminal Enterprises
| Published date | 01 June 2023 |
| DOI | http://doi.org/10.1177/00220183231181386 |
| Author | Beatrice Krebs |
| Date | 01 June 2023 |
| Subject Matter | Case Notes |
Characterising Joint Criminal
Enterprises
R v Rowe [2022] EWCA Crim 27
Keywords
Accessory liability, causation, characterisation, joint enterprise, manslaughter, murder,
overwhelming supervening act
Facts
The appellant Rowe and three others were tried for joint enterprise murder. It was the prosecution’s case
that they had participated in a planned shooting to avenge the killing of one of their associates by a rival
gang. The shooting resulted in the death of an innocent member of the public. He had been mistaken for a
member of the rival gang and had been followed and then confronted by the four accused, one of whom
shot him in the face.
The judge directed the jury that they had the alternative of returning a manslaughter verdict. Rowe was
acquitted of murder but convicted of manslaughter. His co-accused were convicted of murder. Rowe and
two of the others appealed their convictions.
Rowe’s appeal was primarily based on there having been no proper basis for a verdict of manslaughter.
Where the joint plan had been described as a shooting rather than an attack, it was impossible to conceive
of circumstances in which an accessory could be not guilty of murder but guilty of manslaughter. This
was because it would not be logically possible for someone to intend to shoot someone (at close
range, and not merely to shoot at them) and, at the same time, intend to cause anything less than
serious bodily harm.
Rowe’s fellow appellants sought inter alia to rely on the argument (which Rowe adopted) that the
judge was wrong not to direct the jury that encouragement or assistance must have had some effect on
the relevant events to establish criminal liability. An accessory could not be held criminally responsible
for a homicide to which he had not contributed. There needed to be at least some causal link between the
accessory’s encouragement and the principal’s offence, albeit not a sine qua non. They submitted that
there was a tension in Jogee [2016] UKSC 8 between the first part of [12] and the last two sentences
of that paragraph. Whilst the first part suggested that once assistance or encouragement had been ren-
dered, this did not need to have had any effect on the principal or his commission of the offence, the
court’s explanation of overwhelming supervening act (OSA) was concerned with a break in the chain
of causation. They argued that it was therefore essential for the prosecution to show that the encourage-
ment or assistance had had some effect upon the course of events relating to the principal offence.
Held, allowing Rowe’s appeal against conviction (and dismissing the other appellants’appeals), that
the way in which the questions [for the jury] had been ultimately framed provided neither a sensible nor a
secure route to a manslaughter verdict on the facts; Rowe’s conviction for manslaughter could not be
regarded as safe and needed to be quashed. Once the planned act which the secondary party encouraged
or assisted had been characterised as a shooting, it was difficult to see that there could be circumstances in
which a secondary party could say that the harm intended was some harm, but not really serious harm.
Care should be taken to ensure that the natural desire to pose a series of simple questions did not override
Case Note
The Journal of Criminal Law
2023, Vol. 87(3) 223–226
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183231181386
journals.sagepub.com/home/clj
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