The Law of 'Joint Enterprise': Graham Virgo
Channel: Cambridge Law Faculty
Date: 2014-07-11

Professor Graham Virgo is Professor of English Private Law at the Faculty of Law, University of Cambridge, and also Deputy Chair of the Faculty Board.

In this video, Professor Virgo considers the current position of the law relating to defendants who are prosecuted in cases of 'common purpose'.  Several different circumstances are often combined to form the confused category of 'Joint Enterprise'.  Professor Virgo outlines these different circumstances, criticises the current state of the law in this field, and seeks to provide some possible reforms to clarify the situation.

In April 2014, the Bureau of Investigative Journalism published the results of the first statistical analysis of 'Joint Enterprise' homicide cases.  Both Professor Virgo and Dr Matthew Dyson (also of the University of Cambridge) were consulted by the BIJ as part of the investigation (see http://www.law.cam.ac.uk/press/news/2014/04/graham-virgo-and-matthew-dyson-consulted-on-joint-enterprise-report-by-bureau-of-investigative-journalism/2602)

A BBC documentary broadcast on 7 July 2014 examined this area of law and specifically the case of Alex Henry, who was found guilty of stabbing Taqui Khezihi, despite him claiming to have never touched the knife.  (See http://www.bbc.co.uk/programmes/b049bb31)

The BBC also broadcast a drama based on 'joint enterprise' law on 6 July 2014 entitled 'Common'. (See http://www.bbc.co.uk/programmes/p021gb62)

Notes and structure:

1. There is no law of 'joint enterprise': no statute, no doctrine, just a tag which hides much confusion as to the state of the law. 

2. Three senses of 'joint enterprise':
(a) Two principal offenders with a common purpose
(b)  General accessorial liability
 (i) Procures, assists or encourages the principal to commit a crime.
 (ii) Intention to do the act of assisting or encouraging.
 (iii) Knowing, believing or foreseeing that the principal will/might commit the crime.
 (iv) Not liable where an unequivocal withdrawal.
 (c) Departure from a joint enterprise ('parasitical accessorial liability')
 (i) A common purpose to commit one crime (A). This purpose may be express or tacit.
 (ii) The principal departs from the common purpose to commit crime B.
 (iii) The accessory foresees that the principal might commit crime B as a possibility.
 (iv) Not liable where crime B is fundamentally different from that contemplated.

3. The prevalence of 'joint enterprise'. The Bureau of Investigative Journalism (April 2014) identified 1,853 people convicted of homicide between 2005-2013 where there were four or more participants. These are assumed to involve joint enterprise cases. 

4. What has gone wrong with 'the law on joint enterprise'?
(a)  The language of 'joint enterprise'. Accessorial liability is preferable.
(b)  Prosecution policy. CPS Guidance on Joint Enterprise Charging Decisions (2012).
(c) The state of the law: foresight suffices, but foresight of what?
(d) Judicial directions of the jury and the dangers of inference.
(e)  Complex trials involving a significant number of defendants.
(f)  Sentencing, especially for murder.

5. Reform