Criminal Law Update- Joint Enterprise
On 18 February 2016 the Supreme Court ruled in a landmark decision that the law of joint enterprise has been interpreted incorrectly for 30 years.
Joint enterprise is a controversial law dating back several centuries that allows for more than one person to be charged and convicted of the same crime. It is a powerful prosecuting tool that applies even if defendants have played different roles in the alleged offence. It can apply to all crimes but more recently it has been used to prosecute gang related cases for murder when it cannot be proved which member of the group inflicted the fatal blow.
Previously defendants could be convicted under this law if they foresaw that another defendant ‘might’ kill or ‘might’ inflict serious harm. In the landmark judgement Lord Neuberger said it was wrong to treat ‘foresight’ as a sufficient test to convict someone of murder. The ruling imposes a higher bar not just for there to be foresight but the intention to encourage or assist.
Lord Neuberger, the president of the supreme court said “the correct position is that … foresight of what the principal might do is evidence from which the jury may infer that he intended to assist or encourage to do so… but it is for the jury to decide on the whole evidence of whether he had the necessary intent.”
So will this ruling result in people convicted under joint enterprise being freed from jail? No, this ruling is not retrospective. Provided individuals can prove that they would suffer “substantial injustice” if they were not allowed to appeal, they can seek to appeal against their conviction.
This ruling will apply in England, Wales, Northern Ireland and most UK overseas common law territories. It will not apply in Scotland, which has its own rules on joint enterprise.
Ilana is a criminal litigator specialising in white collar crime and corporate fraud matters. She is currently representing client’s both pre and post charge in relation to allegations of money laundering, tax evasion, land banking and LIBOR fixing. Ilana also specialises in representing clients in Restraint and Confiscation proceedings.