The Future of Joint-up Thinking
| Published date | 01 June 2015 |
| Date | 01 June 2015 |
| DOI | 10.1177/0022018315586156 |
| Subject Matter | Articles |
Article
The Future of Joint-up Thinking:
Living in a Post-accessory
Liability World
Matthew Dyson
Trinity College, Cambridge, UK
Abstract
The law of secondary liability continues to trouble defendants, victims, politicians, practi-
tioners, judges, academics and laypeople. In a recent report, the House of Commons Justice
Select Committee called even more forcefully for the Government to consult on reforming the
law of ‘joint enterprise’. The committee called, in particular, for a stronger fault requirement: at
the moment a secondary party can be liable for the full offence merely because he foresaw a
chance that the principal might commit a crime. This article discusses the report, analyses the
substantive law in issue and considers appropriate reforms. The report is also a chance to
reassess what secondary liability looks like today, a process that reveals that we now live in a
post-accessory liability world where ‘joint enterprise’ rules. This shift in language and corre-
sponding shift in fault elements has caused significant uncertainty in understanding the law as
well as practical injustice, making it easier to convict for more serious crimes than should be
the case. The paper draws on an analysis of the joint enterprise cases decided in 2014 to show
how attitudes to evidential and sentencing issues are shaping the substantive law.
Keywords
Secondary liability, joint enterprise, accessory, criminal, Justice Select Committee
Introduction
On 17 December 2014, the House of Commons Justice Select Committee (JSC) released its report Joint
Enterprise: Follow-up
1
(the Report), calling even more forcefully for the Government to consult on
reforming the law of ‘joint enterprise’. The Justice Select Committee also no longer think, as they did
Corresponding author:
Matthew Dyson, Trinity College, Cambridge, UK.
E-mail: mnd21@cam.ac.uk
1. Justice Select Committee, Joint Enterprise: Follow-up, Fourth Report of Session 2014–15, HC 310. See, e.g., B. Crewe,
A. Liebling, N. Padfield and G. Virgo, ‘Joint Enterprise: The Implications of an Unfair and Unclear Law’ [2015] Crim LR 249.
The Journal of Criminal Law
2015, Vol. 79(3) 181–197
ªThe Author(s) 2015
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DOI: 10.1177/0022018315586156
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in 2012,
2
that the Law Commission’s proposals in 2007 are an appropriate starting point.
3
Rather, they
recommended a fresh investigation, one which questions whether a secondary party should be liable in
full where he only foresaw that the principal might commit any further crime beyond the first in whichhe
participated. Within the general picture, the JSC thinks that secondary parties to murder charges need
particular and urgent review.
The Report is a timely reminder that the law of secondary liability continues to trouble defendants,
victims, politicians, practitioners, judges, academics and laypeople. The current law is a source of injus-
tice and needs urgent change for reasons of principle, practice and, as if they were not enough, the burden
on the taxpayer from the resulting sentences of imprisonment and high appeal rate must be reduced.
However, the report also highlights a deeper message: that law reform too easily plays catch-up to the
real world. In fact, our target has moved and secondary liability is no longer what it long has been. The
truth is that we are already living in a world where ‘accessory liability’ is no longer the norm. Prosecu-
tors typically charge, and judges typically convict, on the basis that defendants were ‘in it together’ and
thus, apparently, part of a ‘joint enterprise’. The distinction between this and the traditional categories, of
aiding, abetting, counselling and procuring on the one hand, and parasitic accessorial liability or the doc-
trine of joint enterprise on the other, has largely been lost. That distinction had some benefits, such as
allowing separate substantive, evidential and sentencing rules for truly joint criminality. However, those
same benefits have driven the expansion of the idea of ‘joint enterprise’ to swallow all forms of second-
ary liability. The substantive law has become wider, and therefore harsher, driven on by those same evi-
dential and sentencing concerns. This shift has to be acknowledged and our understanding of secondary
liability re-calibrated. That done, we can go on to deal with the primary problem: to decide what kind of
a world of secondary participation we want to live in.
Terminology
First, we should agree terminology. RvABCD, a recent Court of Appeal decision, is often used as a
useful summary of the present law:
The expressions ‘common enterprise’ or ‘joint enterprise’ may be used conveniently by the courts in at least
three related but not identical situations.
(i) Where two or more people join in committing a single crime, in circumstances where they are, in effect,
all joint principals, as for example when three robbers together confront the security men making a cash
delivery.
(ii) Where D2 aids and abets D1 to commit a single crime, as for example where D2 provides D1 with a
weapon so that D1 can use it in a robbery, or drives D1 to near to the place where the robbery is to be
done, and/or waits around the corner as a getaway man to enable D1 to escape afterwards.
(iii) Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a
second crime (crime B) which D2 had foreseen he might commit. These scenarios may in some cases
overlap
There is utility in the use of the expressions ‘common enterprise’ or ‘joint enterprise’ in each of these situa-
tions, especially to introduce a jury to the proposition that a man may be responsible for acts which his own
hand did not physically commit, if those acts are within the common purpose. But ...the third scenario
depends upon a wider principle than do the first and second. The important difference is that, in the third type
of scenario, D2 may be guilty of an offence (crime B) that he did not want or intend D1 to commit, providing
that he foresaw that D1 might commit it in the course of their common enterprise in crime A.
4
2. Justice Select Committee, Joint Enterprise, Eleventh Report of Session 2010–12, HC 1597.
3. Law Commission, Participating in Crime, Law Com. No. 305, Cm 7084 (2007).
4. RvABCD [2010] EWCA Crim 1622, (formatting added).
182 The Journal of Criminal Law 79(3)
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