A term that we often see used in newspaper articles to describe where two or more persons are charged/convicted for an offence is Joint Enterprise.
A Joint Enterprise in simple terms is called a “joint plan” where two or more persons acting together commit a crime. The plan can either be made beforehand, for example, a plan to commit a robbery or on the other hand, the plan can develop spontaneously where one person decides to commit a crime, and the other persons participate by assisting or encouraging that crime as it takes place ‘on the fly’.
Who can be a party to a Joint Enterprise?
Joint Enterprise can arise where persons all equally participate in a crime. In that case all participants are principal offenders who have each committed the offence.
An example can be where Rishi, Martin and Zaheer are liming when an intoxicated passerby starts cursing and harassing them. Rishi after being repeatedly cursed, curses at the passerby and a fight erupts.
Martin and Zaheer upon seeing their friend being beaten up, join the fight and the passerby is badly beaten and receives injuries. Under the principles of joint enterprise, Martin and Zaheer can all be charged as principal offenders for assault.
Principal and Secondary Offenders
Quite often however, with Joint Enterprise, there is a principal offender and other person(s) who assisted or encouraged him to commit the offence but did not commit it themselves. These persons are termed secondary offenders.
The two examples listed below can assist with understanding these concepts:
- Adrian and Barry plan to kill Carl. Adrian has a gun and shoots Carl. Barry is the lookout man who makes sure that the coast is clear before Adrian does the shooting. Barry is arrested and tells the police that he should be released because he did not shoot anyone.
- Similarly, Adrian wants Carl dead. Adrian hires Barry to do the killing. Adrian gives Barry a gun and tells him where Carl lives and what time Carl will be home. Adrian is arrested and tells the police that he should be released because he was nowhere near the scene of the shooting.
In the first example, Adrian is the principal offender because he is the main culprit or shooter. But under the concept of joint enterprise, Barry is also liable for murder because although it was not his finger that pulled the trigger, through his actions he assisted Adrian who did shoot Carl.
Similarly, in the second example, Adrian provided the gun to encourage and assist Barry in committing the offence, so even though Adrian is not actually present on the scene of the shooting he is also liable for murder under the principle of joint enterprise.
Ways to avoid Joint Enterprise Liability?
Mere Presence
It is possible to escape liability from Joint Enterprise. For example, if Martin and Zaheer did not join the fight, then they would not be liable under the joint enterprise principle having only a mere presence on the scene and providing no assistance or encouragement to Rishi.
Withdrawal
Similarly, if Rishi and Martin plan to rob someone and at some time before the crime is committed Martin communicates to Rishi that he wants to withdraw or pull out of the crime (and then he plays no further part), then Martin would have withdrawn his assistance and encouragement to Rishi to commit the crime and Martin would not be liable under the principle of joint enterprise.
However, determining whether there has been an effective withdrawal is not a straightforward issue and whether a person has withdrawn from a joint plan is usually a question to be decided in court. Therefore, in many cases a person who relies on withdrawal as a defence, may still be charged with the offence.
Recent Developments
The last major change to the law of joint enterprise was made in 2016.
Most crimes require not only a physical act but also a mental element. For example, in cases of murder, the physical act could be the shooting or stabbing of another. On the other hand, the mental element would be an intention to kill or to do grievous bodily harm.
In cases where a mental element is required, for the principles of joint enterprise to apply, secondary parties must intend to assist or encourage principal offenders to commit the crime acting with whatever mental element the principal has.
For example, if Adrian and Barry plan to rob Carl and steal his Iphone©, but during the robbery, Barry arms himself with a cutlass and chops Carl until he dies, then Adrian would be guilty of the lesser offence of Robbery and not Murder as he did not intend to assist Barry to act with an intention to kill.
However, Barry would be guilty of the offence of Murder.
It is worth noting once more, that in practice this is not a straightforward issue, and many times secondary parties can be charged for Murder under another legal principle called the felony/murder rule which applies where two or more parties set out to commit a violent arrestable offence and during the course of that offence, a person is killed.
Submitted by:
Public Defender
Public Defenders’ Department
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port of Spain.
Contact: 638-5222
Email:
Published in The Trinidad Guardian News Paper on Friday 27th October, 2023
