ⓘ Common purpose

                                     

ⓘ Common purpose

The doctrine of common purpose, common design, joint enterprise, or joint criminal enterprise is a common law legal doctrine that imputes criminal liability to the participants in a criminal enterprise for all that results from that enterprise.

This article principally considers English law. Other legal jurisdictions approaches are discussed.

Common design also applies in the law of tort. It is a different legal test from that which applies in the criminal law. The difference between common designs in the criminal law and the civil law was illustrated in NCB v Gamble a device with the object of promoting its use to infringe copyright". That test was satisfied because clear statements and positive steps were taken by the administrators of the website to encourage infringement.

A common application of the rule is to impute criminal liability for wounding a person to participants in a riot who knew, or were reckless as to knowing, that one of their number had a knife and might use it, despite the fact that the other participants did not have knives themselves. In England and Wales and certain other Commonwealth countries, this was the understanding of the courts until February 2016, when the Supreme Court of the United Kingdom and the Judicial Committee of the Privy Council jointly ruled in R v Jogee that it was wrong, and that nothing less than intent to assist the crime would do.

The common purpose doctrine was established in English law, and later adopted in other common-law jurisdictions including Scotland, Ireland, Australia, Trinidad and Tobago, the Solomon Islands, Texas, Massachusetts, the International Criminal Court, and the International Criminal Tribunal for the former Yugoslavia.

                                     

1.1. Jurisdictions English law

An old example of this doctrine in English law is R v Swindall and Osborne 1846 2 Car. & K. 230. Two cart drivers engaged in a race. One of them ran down and killed a pedestrian. It was not known which one had driven the fatal cart, but since they were encouraging each other in the race, it was irrelevant which of them had actually struck the man and both were held jointly liable. Thus the parties must share a common purpose and make it clear to each other by their actions that they are acting on their common intention, so that each member of the group assumes responsibility for the actions of the whole group. When this happens, all that flows from the execution of the plan makes them all liable. This is a question of causation, in that oblique intention will be imputed for intermediate consequences that are a necessary precondition to achieving the ultimate purpose, and liability will follow where there are accidental and unforeseen departures from the plan, so long as there is no novus actus interveniens to break the chain.

Until 2016, in cases where there is violence beyond the level anticipated, the prosecution had to prove:

In R v Jogee UKPC 7)

                                     

1.2. Jurisdictions Repentance

One person who has been an active member of a group with a common purpose may escape liability by withdrawing before the others go on to commit the crime. Mere repentance without any action, however, leaves the party liable. To be effective, the withdrawing party must actively seek to prevent the others from relying on what has been done. In R v Becerra 1975 62 Crim. App. R. 212 it was held that any communication of withdrawal by the secondary party to the perpetrator must be such as to serve "unequivocal notice" upon the other party to the common purpose that, if he proceeds upon it, he does so without the further aid and assistance of the withdrawing party.:

  • Where an accomplice has supplied the principal with the means of committing the crime, the accomplice must arguably neutralise, or at least take all reasonable steps to neutralise, the aid he has given.
  • In more serious cases, it may be that the only effective withdrawal is either physical intervention or calling in the police.
  • If an accomplice only advised or encouraged the principal to commit the crime, he must at least communicate his withdrawal to the other parties.

In R v Rook 1997 Cr. App. R. 327, the court held that, as in the case of joint enterprise where both parties are present at the scene of the crime, it is not necessary for the prosecution to show that a secondary party who lends assistance or encouragement before the commission of the crime intended the victim to be killed, or to suffer serious injury, provided it was proved that he foresaw the event as a real or substantial risk and nonetheless lent his assistance.

Rook was convicted as one of a gang of three men who met and agreed the details of a contract killing of the wife of a fourth man on the next day. Rook did not turn up the next day and the killing was done by his two fellows. His defence was that he never intended the victim to be killed and believed that, if he failed to appear, the others would not go through with the plan. Lloyd LJ. described the evidence against him in this way:

So the position, on his own evidence, was that he took a leading part in the planning of the murder. He foresaw that the murder would, or at least might, take place. For a time he stalled the others. But he did nothing to stop them, and, apart from his absence on the Thursday, he did nothing to indicate to them that he had changed his mind.

This did not amount to an unequivocal communication of his withdrawal from the scheme contemplated at the time he gave his assistance.

                                     

2. Controversy

The use of this doctrine has caused concern among academics and practitioners in the legal community and has been the subject of an investigation by the House of Commons Justice Select Committee in the UK. In 2010, a campaign group was formed in the UK called JENGbA Joint Enterprise: Not Guilty by Association, which seeks reform of the law and supports those convicted by this means. JENGbA asserts that the misapplication of the principle constitutes a form of human rights abuse.

On 6 July 2014, Common, a 90-minute television drama written by Jimmy McGovern, was shown on BBC One. It examined the issues surrounding a case of joint enterprise or common unlawful purpose murder. On 7 July 2014, a documentary regarding a number of joint enterprise cases, Guilty by Association, was also shown on BBC One.

One of these cases is that of Alex Henry, convicted in March 2014 at the Old Bailey alongside Janhelle Grant-Murray and Cameron Ferguson, for the murder of Taqui Khezihi and the non-fatal stabbing of Bourhane Khezihi. The court heard how Alex Henry was shopping in Ealing Broadway on a Tuesday afternoon in August 2013 with his two co-defendants. He exited the shopping centre with Ferguson to see Grant-Murray being confronted by a group of four older men who were unknown to all defendants. CCTV showed that Grant-Murray was holding a wine bottle by the neck and Bourhane Khezihi had removed his belt to use as a knuckle duster. A combination of CCTV evidence and mobile phone video footage was used to piece together the 47-second affray in which Alex Henry can be seen running into the affray and running back to the shopping centre. At trial Cameron Ferguson pleaded guilty to murder and grievous bodily harm. Alex Henry and Janhelle Grant-Murray were both found guilty by a majority verdict of 11–1. It was their presence at the scene of the spontaneous 47-second affray which was held to amount to encouragement of the stabbing. They both received a life sentence with a minimum prison term of 19 years.

On 25 February 2015, an appeal to the Court of Appeal by two convicted murderers was successful. A young man, Jonathan Fitchett, had been killed at a retail park after an altercation with Childs, who was joined by his friend Price. Although both defendants had punched the victim, an expert medical witness said that just a single punch was fatal, and it was unknown who threw the fatal punch. The Liverpool Crown Court had convicted both of murder using the device of common purpose. The Appeal Court found that there had been no intent to cause really serious injury, and that there was no evidence of "common purpose". The first defendants conviction was reduced to manslaughter, and the second was reduced to affray. The Court said that for common purpose/joint enterprise to arise, there must be satisfactory evidence of a joint plan. The absence of precise actus reus was glossed over.