Joint Enterprise in Homicide
JOINT ENTERPRISE IN HOMICIDE - THE RISK OF A MISCARRIAGE OF JUSTICE
Written July 2014 by:
Peter Doyle QC - 25 Bedford Row - Called 1975 - Silk 2002
A Criminal defence practitioner highly proficient in defending Serious Crime, Complex Fraud & Confiscation proceedings. Peter Doyle QC has a phenomenal eye for detail and is unrivalled in his thorough preparation of cases. He is recommended as a leading Silk in Fraud in the Legal 500 2013 and Chambers & Partners 2014.
- Joint enterprise is a powerful prosecuting tool particularly in the battle against gang crime where a group can be charged if there is sufficient evidence to show that they were “in it together”.
- Between 2005-2013 there were 4,590 homicide prosecutions involving two or more defendants and 1853 involving four or more defendants.
- The widespread use of the doctrine has courted controversy amid concerns that it has in some cases resulted in miscarriages of justice or the risk that injustice might arise because innocent individuals who happen to be in the wrong place at the wrong time may be tarred with criminal conduct and swept into a trial leaving it to a jury to sort out who did what and when.
- Having taken evidence from interested parties, including the then DPP, the House of Commons Justice Committee’s Report on Joint Enterprise (January 2012), made two recommendations. The first, not yet implemented, was for the joint enterprise doctrine to be enshrined in statute in order to introduce certainty, clarity and a continuity of approach. The second was for the DPP to urgently introduce guidance to prosecutors to reduce the risk of innocent bystanders being charged by reason of association. Guidance was issued on 20 December 2012.
- That Guidance emphasised that the prosecution should only use association evidence if, when taken with other evidence, it establishes that the suspect was knowingly assisting or encouraging the offending. The Guidance makes it clear that in some cases it may prove more appropriate to consider alternative charges not based on the joint enterprise doctrine.
- In murder cases the position of secondary parties raises obvious evidential challenges. It is established law that if a number of individuals embark on an unlawful joint enterprise (crime A) but in the course of that enterprise one or more of their number kill with the necessary intent (crime B) then the liability of the secondary party for crime B will depend on what he foresaw or contemplated as part of the original enterprise (crime A). (R v Powell and English).
- The difficulty with such cases arises where there is no direct evidence on this crucial issue and instead the prosecuting authority draws an inference that such was the contemplation of a secondary party. Marlan Cox, recently tried at the Central Criminal Court and defended by Stuart Miller Solicitors together with Peter Doyle QC, is a case in point. He and his friend agreed at very short notice to use their hire van to drop two men off near an address of the formers’ choosing. Whilst waiting for them to return and give them a lift back, the two men entered a flat where cannabis was being grown intending to steal it. There was a large number of knives inside the flat. In a confrontation with the occupier, the latter stabbed one of the two men, albeit not fatally, and in a vicious attack by the two men the occupier was himself stabbed to death. When the two returned to the van and it was clear that one had been injured, Marlan Cox and his friend drove him to hospital dropping the other man off en route at his request.
- All four were charged with murder and conspiracy to burgle. The two principals pleaded not guilty to murder- each blaming the other- but guilty to the conspiracy to burgle. Marlan Cox and his friend pleaded not guilty to each count. It was their case that they knew nothing about the burglary or the murder; in due course confirmed during the trial by the two principals who gave evidence.
- However, because Marlan Cox and his friend had driven the others to the address and waited for their return, there was a prima face case for each to answer on the conspiracy to burgle; they were locked into an allegation of a criminal joint enterprise.
- The issue on the murder count was whether the killing was contemplated by them as part of that joint enterprise. There was no evidence that any knives were taken by the two men into the address or at best, if that could be inferred, no evidence that either Marlan Cox or his friend knew that to be so.
- At the close of the prosecution case it was submitted that given the absence of such evidence no jury could conclude that either men contemplated as a risk that in the course of the burglary a knife or knives might be used with murderous intent. The Crown relied on an inference, namely, that the nature of the burglary, to steal drugs, was bound to have raised concerns that the occupier would resist and that in order to overcome such resistance weapons would have been taken “on the job”.
- The learned Judge rejected the Crown’s submission. He found that there simply was no evidence against the secondary parties to justify such an inference and no evidence that they knew that knives would or might be used by any principal during the course of the burglary. On his direction the jury acquitted both Marlan Cox and his friend of murder. In due course each having given evidence the jury acquitted them of the conspiracy to burgle.
- They had each spent nine months in Belmarsh awaiting their trial. Had they not been charged with murder they would have been on bail. Neither had been in trouble with the police before, save for the friend who had a minor traffic offence which the jury was directed to ignore.
- The two principals were convicted of murder and each sentenced to 30 years; the likely outcome for Marlan Cox and his friend if they too had been convicted. While charging decisions continue to be driven by assessments of the evidence as opposed to the application of a more rigorous statutory criteria, the enhanced risk of a miscarriage of justice remains.
- Those defending secondary parties charged with murder will have to make an early assessment of the charging decision in the light of the Guidance and in an appropriate case invite the DPP to reconsider that decision and/or move to dismiss the charge. This is of course easier said than done.
- In Marlan Cox’s case, he was locked into a prima face case of conspiracy to burgle. It could not be said in his case that there was no evidence that he was part of a criminal joint enterprise. For that reason there could be no purposeful challenge to the charging decision. The direction to acquit of murder was only given after the Crown had identified its case and the evidence in that regard properly tested.
- However, in an appropriate case, the CPS should always be challenged by its own Guidance and if there is clear scope for seeking an internal review of a charging decision it should be taken. It will not be enough to simply assert in correspondence that there is no evidence. Full written representations will have to be made and the relevant evidence dissected.
- Given the financial and other pressures on practitioners, this calls for investment of time and resources. It is, however, the only way that a potential shield can be placed between an over-enthusiastic prosecutor and a client, who on the evidence material to his case, is in peril of being wrongly swept into a trial with others where he faces the risk of life imprisonment.
Expert Murder Solicitor:
Mohammed Zeb: Director - Stuart Miller Solicitors
The expert Serious Crime Solicitors at Stuart Miller Solicitors are proficient with legislation surrounding Homicide offences, knowledgeable in creating the best strategy & able to analyse huge volumes of evidence to find the grain of detail required to achieve success for you. With more than 40 Homicide acquittals in recent years, you can be confident of being defended by one of the best Criminal Law firms in the UK. Having Specialist Serious Crime Lawyers on your side is vital to achieve the best result and ensure fairness in the proceedings. Challenging allegations of Murder & Manslaughter successfully is not a stroll in the park by any means, thus ensuring your Solicitors are leading experts will maximise your chances of retaining your assets and avoiding additional jail time.
This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of its content.