Joint Enterprise Liability as Omissions

AuthorCyrus Chua,Hin Ting Liu
DOI10.1177/0022018316638984
Published date01 April 2016
Date01 April 2016
Subject MatterArticles
Article
Joint Enterprise Liability
as Omissions
Cyrus Chua
Gonville and Caius College Cambridge, Cambridge, UK
Hin Ting Liu
University of Hong Kong, Hong Kong
Abstract
This article argues that joint enterprise liability should be conceptualised under the doctrine
of omissions as conceived in the recent case of Evans. As such, liability under joint enterprise
is to be triggered when one is under a duty to rectify a dangerous situation and eventually fails
to prevent a prohibited outcome from occurring. This analysis would overcome the two
fundamental difficulties pervading the law on joint enterprise: (i) the overly harsh mens rea
requirement as the law of joint enterprise currently stands, and (ii) the sheer arbitrariness of
the fundamental difference rule. The authors suggest that in view of legislative inaction, the
judiciaryshouldtakeanactiveroletoextendthereasoninginRvEvans so as to cover joint
enterprise cases.
Keywords
Joint enterprise, omissions, Evans, mens rea, fundamental difference
Introduction
The law on joint enterprise
1
is in desperate need of reform. The current mens rea requirement is overly
harsh and the fundamental difference rule yields arbitrary and inconsistent results. Yet multiple pro-
posals calling for reform have gone unheeded as they either require legislative action or are unsupported
by the common law. This article seeks to change this dynamic by examining the relationship between
joint enterprise and the doctrine of omissions. In doing so, we aim to provide a way to reconceptualise
Corresponding author:
Cyrus Chua, Gonville and Caius College Cambridge, Cambridge, UK.
E-mail: cxchua@outlook.com
1. This article was written before the recent Supreme Court decision in RvJogee was handed down. We will adopt the Supreme
Court’s definition of joint enterprise in RvGnango as Type III ‘parasitic accessorial liability’. It is to be taken as a distinct
concept, for purposes of arguments, from standard accessorial liability, otherwise known as Type II ‘plain vanilla accessorial
liability’.
The Journal of Criminal Law
2016, Vol. 80(2) 138–148
ªThe Author(s) 2016
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DOI: 10.1177/0022018316638984
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