REVISED 3 DECEMBER 2008

2.7   JOINT ENTERPRISE

(A)   "The prosecution's case is that (the defendants committed this offence together) (the defendant committed this offence jointly with ...). Where an offence is committed by two or more persons, each of them may play a different part, but if they are acting together as part of a joint plan to commit the offence, they are each guilty of it. The word ‘plan’ does not mean that that there has to be a formal agreement about what has to be done. A joint plan to commit an offence may arise on the spur of the moment. It can be made with a nod or a wink, or a knowing look (and even without such actions you may infer from the behaviour of those involved that they agreed to commit the offence(s)). Put simply, the question for you is "Were they in it together"? [Mere presence at the scene of a crime is not enough to prove guilt, but if you find that the defendant was at the scene, and intended by his presence alone to encourage the others in the offence(s), and did encourage them by his presence, then he is equally guilty.(1)]

Your approach to the case should therefore be as follows: If, looking at the case of [the/either/any] defendant, you are satisfied beyond reasonable doubt that he committed the offence on his own or that he did an act or acts as part of a joint plan with others/ with B and C he is guilty."

(B)   In the ordinary case, the above direction should suffice. However, where there is evidence and argument of unusual consequences etc and of non-participation of one defendant, B, because it is said that the act of another, A, was outside his foresight, it will be necessary to give further directions, for example if the issue arises whether participants in a concerted attack are liable for the use of a weapon which may have been different in character to any weapon foreseen by the others. This issue has to be considered in the light of the decision of R v Rahman [2008] 4 AER 351 where the House of Lords considered the leading authorities and, doubting the correctness of R v Gamble [1989] NI 268, at [68] restated the law as stated by Lord Lane CJ in R v Hyde [1991] 1 QB 134, [1990] 3 AER 892 as follows:

“If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture unless (i) A suddenly produces and uses a weapon of which B knows nothing and which is more lethal than any weapon which B contemplates that A or any other participant may be carrying and (ii) for that reason A’s act is to be regarded as fundamentally different from anything foreseen by B.”

The application of these propositions will require to be carefully tailored to the circumstances of each case, and it will almost always be desirable to discuss the proposed direction with counsel before the closing speeches. The suggested direction given below is, therefore, merely offered as a starting point, and is partly based on the trial judge’s direction in Rahman modified to reflect the restatement above. It assumes there is not an alternative count to be considered by the jury.

“In the circumstances of this case you have to consider a number of questions in order to decide whether B is guilty of the murder of V.

  1. The first question is whether you are satisfied beyond reasonable doubt that A caused the death of V by (e.g. stabbing him with a knife/shooting him/striking him repeatedly with an iron bar) and intended to kill V or cause him really serious injury? If you answer this question “No” then you should find B not guilty because, as a matter of law, B cannot be guilty of murder unless A committed the offence of murder. If you answer this question ”Yes” then you must go to the second question.
  2. Are you satisfied beyond reasonable doubt that B participated in the attack upon V? (Mere presence at, or very near, the scene of the attack is not enough to prove participation. But if you find that B was at the scene, and intended and did by his presence alone encourage A to attack V, that would be participation in the attack(1)) If you answer this question “No” you should find B not guilty. If you answer this question “Yes” then you must go to the third question.
  3. Are you satisfied beyond reasonable doubt that in taking part in the attack on V B realised that A might use such violence by the use of lethal weapons against V as to kill him or cause him really serious injury, even if B did not agree to such violence being used? If you answer this question “No” then you should find B not guilty. If you answer this question “Yes” then you must go to the fourth question.
  4. Was A’s action in (stabbing V with a knife/shooting V/striking V repeatedly with an iron bar) fundamentally different from anything foreseen by B? A’s action will not be fundamentally different from anything foreseen by B unless B knew nothing about (the knife/the gun/the iron bar) which A produced and used, and (the knife/gun/iron bar) was more lethal than any weapon that B contemplated that A may be carrying. If you are satisfied beyond reasonable doubt that A’s action was not fundamentally different from anything foreseen by B then you should find B guilty. If you consider that A’s action was, or might be, fundamentally different from anything foreseen by B then you should find B not guilty.

(C)   If the defendant admits that he agreed to a joint plan, but claims he withdrew, the jury will have to be directed accordingly, and the direction carefully tailored to the circumstances of the case, particularly if the prosecution allege that the defendant could and should have done something to neutralise his earlier agreement or assistance. In such a case consideration should be given to the authorities discussed in ARCHBOLD 18-26 et seq.

“B has admitted that he agreed with A that they would commit this offence of (e.g. burglary), but he says that he had a change of heart and made quite clear to A that he intended to withdraw from their plan before A had time to commit the offence. Before you can convict B of this offence you have therefore to be satisfied beyond reasonable doubt that he did not withdraw from their joint plan, in other words you have to be satisfied that they were still in it together. It is for you to decide whether B had withdrawn from the joint plan in all of the circumstances of the case, but when considering this there are a number of matters which you may think are important. For example, did B tell A that he was withdrawing? Did B make it absolutely clear to A that he was withdrawing, or was B ambiguous about whether he was still taking part in what they had planned to do? The prosecution allege/B admits he (e.g. gave A a key to the house), what did B do to stop A carrying out their plan? Was that all B could have done to prevent the plan from being carried out?”

NOTE.

(1)   This should not be included unless relevant.


ARCHBOLD 2010: 18-15 et seq; 19-24 et seq.

BLACKSTONE 2010: A 5.5 to 15.