Joint Criminal Enterprise
| Author | Beatrice Krebs |
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00809.x |
| Date | 01 July 2010 |
| Published date | 01 July 2010 |
Joint Criminal Enterprise
Beatrice Krebs
n
The doctrine of joint crimi nal enterprise is in disarray. Despite repeated judicial scrutiny at the
highest level, the doctrine’sscope, proper doctrinal basis and function in relation to other modes
of complicity remain uncertain. This article examines the doctrine’s elements and underlying
principles. It argues thatwhile joint criminal e nterprise is largelyused to make individuals liable
for o¡ences committed by their associatesi n excessof the common criminal purpose, its proper
function is to police the limits of associate liability and thus to exculpate rather than inculpate.
The doctrine governs not only instances of accessorial liability; it also applies where the parties
involved are joint principal o¡enders. As this puts into question the prevalent view that joint
criminal enterprise is a form of secondary participation that results in accessorial l iability, the
article concludes that it is best se en as a doctrine sui generis.
INTRODUCTION
Joint criminal enterprise is the doctrine most commonly drawn upon to deter-
mine the liability of o¡enders for crimes of violence committed en groupe which
have escalated into death. In the typical case, the fatal act has been committed by
one individual, and the issue is whether other parties in the attack, who intended
harm short of death, can be heldl iable for the killing.
1
The basic doctrine consists
of two limbs. The ¢rst recognises that parties to a joint criminal enterprise are
liable for each and every actwithin the scope of the enterprisecommitted by their
associates.The second provides thatif one party does something thatis outside the
scope of the enterprise, then other parties will only be liable if they foresaw the
conduct in question. Despitesome commentson these requirements in the House
of Lords decisions of Powell, Engli sh
2
and, more rece ntly, Rahman,
3
the doctrine’s
proper scope, appropriate doctrinal bas is and functio n in relation to other modes
of complicity remain uncertain and continue to generate diverging opinions in
the courts and literature.
4
Looking at the governing principles of joint criminal
enterprise and related concepts of complicity,this article argues that thedoctrine’s
¢rst limb is redundant (becauseit merely restates whatthe law on aidingand abet-
ting on the one hand and joint perpetration on the other already establish), and
that the second l imb ought to be recognised as a doctrinesui generis which governs
liability for participants in crimes where one o¡ender intentionally strays from
n
Corpus Christi College, Oxford.I am grateful toJonathan Herring, Grant Lamondand Lucia Zedner
for their comments on earlier drafts of this article.
132 n61above,at[97].
1Powell, English [1999]1 AC 1 (HL); Rahman [2008] UKHL 45, [2009]1 AC129 (HL).
2ibid.
3ibid.
4cf (some of) the leadi ng textbooks,esp. J. C.Smith and B. Hogan (edited by D. Ormerod),Crim-
inal Law (Oxford: OUP, 12
th
ed, 2008) 182^183, 206^219 and A. P. Simester and G. R. Sullivan,
CriminalLaw:Theoryand Doctrine (Oxford:Hart Publishing,3
rd
ed, 2007) 220^230.
r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2010)73(4) 578^604
the commonplan. In these situationsthe doctrine originally servedto de-limit an
individual’s liability for the criminal ‘excesses’ of his associates. However, it has
more recently been draw n upon to extend liability. Under the doctrine as now
understood, an individual might be held liable for actionsof his associates which
did not formpart of their commonplan or purpose,provided thathe foresaw that
these might be committed in the context of the agreed scheme.Thus, the doctrine
is now commandeered to impose liability on all parties who foresaw the perpe-
trator’s act as a possible incident to the purpose crime.This i nculpatory practice is
most commonlydefended in terms of an‘assumptionof risk’ or ‘change of norma-
tive position’ resulting from the initial criminal association. Mere foresight as a
cognitive concept, however, is not capable of taking into account the volitional
element involved in accepting to run a risk. Moreover, to avoid lowering the
thresholdof liability more than is desirable, theli nk betwee n basecrime and inci-
dental o¡ence needs to be more substa ntial than the tenuous con nection presently
deemed su⁄cient. This article concludes that the prevalent understanding of the
doctrine of joint enterprise as a distinct head of liability is misguided and has led
to an unwelcome extensionof l iability for associates in crime. It is suggested that
this development cannot be defended either in terms of legal principle or policy.
I would argue that once the ideaof joint enterprise as a distincthead of liability is
abandoned and its function as a limiting device in instances of criminal ‘excesses’
re-discovered, the law oncomplicity generally will appear more coherent.
THE BASIC DOCTRINE
The doctrineof joint criminal enterpriseas currently applied consists of two prin-
ciples. The ¢rst ext ends liability for o¡enders who operate as a joint enterprise
beyond their owncontributions to acts committed by theirassociates; the second
restricts this type of liability ^ formerlyto acts done in furtherance of the common
criminal goal, now to acts done in furtherance of the common goal and to acts
foreseen as a possible incident of the common goal’s pursuance. Historic accounts
make this two -limbed approach more obvious than contemporary lawand com-
mentary. According to Article 17 (‘common purpose’) of Stephen’s Digest of the
Criminal Law:
5
When several persons take part in the execution of a common criminal purpose,
each is a principal i n the second degree, in respect of every crime committed by
any one of them in the execution of that purpose. If any of the o¡enders commits
acrimeforeign to the common criminal purpose, the others are neither principalsin the
seconddegree, nor accessories unlessthey actually i nstigateor assist in its commiss ion.
6
The ¢rst sentence essentially asserts that where an o¡ence is committed jointly
and pursuant to a shared criminal purpose (the elements constituting a joint
enterprise), the culpability of each participant is determined collectively rather
5L. F. Sturge (ed), JF Stephen: A Digest of the CriminalLaw (Indictable O¡ences) (London: Sweet &
Maxwell,9
th
ed,1950).The text i s the same as in the 4
th
edition published by J.F. Stephen in1887.
6Emphasis added.
Beatrice Krebs
579
r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
(2010)73(4) 578^604
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