Joint to cause severe harm or even kill, the

Joint enterprise doctrine is a form of secondary
liability under the English criminal law that helps in deciding cases involving
secondary parties who aid or encourage one to commit a crime1. Parasitic accessory
liability, as per Sir John Smith, is a phrase used to describe a division of
the Joint enterprise accessory. This subsection was introduced by the Privy
Council in Chan Wing-Siu (1985)2
into the United Kingdom Common Law. The paragraph of the parasitic
accessory liability was further advanced by the House of the Lords in Powell and English (1999)3 with the aim of broadening
the scope of secondary responsibility. With this broadening, the second party
would be liable to unauthorized but foreseen actions of a principal in a joint
enterprise, who goes on to commit additional offense (s).


For more than thirty years, lawyers and juries have
been weighed down with a legal principle which placed individuals at risks of
being convicted of a crime not because they intended to commit it but only
foresaw that someone else who was in a joint criminal enterprise with them might
commit it. This saw the second party being convicted of murder even as his
state of mind was less deserving blame than the person who made the killing. As
per this law, whereas the killer had intentions to cause severe harm or even
kill, the secondary party was also guilty, not because they shared the same
thoughts with the killer, but because he or she foresaw a possibility of death
or serious injury occurring.

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Many issues pertaining Joint operation and
parasitic accessory liability are sighted looking at the doctrine from the
description above. First, most individuals were convicted and sentenced under
the theory on very little involvement in the criminal acts. However, their
level of participation is so slight thereby resulting in considerable injustices.
For instance, a mere presence in the scene of the crime could be seen as
involvement in a crime. Moreover, a previous association between the
co-defendants was regarded as sufficient evidence of shared criminal intent.
Secondly, the penalty for the joint enterprise was too harsh under this
doctrine as it involved life sentence, for example, if the second defendant
knew that the first defendant was carrying a weapon before a crime was
committed, the second defendant would be guilty under this doctrine. The mere
knowledge of weapon possession is, therefore, an unfair punishment to the
second defendant who had no idea of the first defendant’s thoughts of
committing a crime. Second defendants consequently were unjustly punished
through the heavy sentence. Therefore, considering some young people convicted
of such crimes this would mean that many young people with great futures and
economic importance to the country were denied this chance by being sentenced
to jail. Thirdly, Padfield argues that this doctrine was used as a dragnet of
putting away many young people by their associations as well as social classes
without any active involvement in criminal activities4. In the event of public
resistance on any issue that would lead to loss of life, an individual would be
persecuted even without physical participation in the murder. Thus, the manner
in which the law was applied was complex and contradictory as a result of the
numerous uncertainties brought about by the doctrine, which was a burden to
both the legal practitioners and members of the public.  The shortcomings and legal ambiguities of
this principle therefore led to miscarriages of justice.


Other parties did not support the principle. Reid,
for instance, was sighted in Powell and English (1999)5
but failed to get mentions in the court judgment even as the case was a
reserved judgment to the court of appeal and made it clear that a second
defendant could not be convicted for murder if he failed to have strong
murderous intent. The second argument was that Chan Win –Siu (1985)6
together with Powell and the English (1999)7
cases was unable to give substantial considerations to fundamental
policy question whether, and if so why it was appropriate to reclassify murder
to manslaughter and therefore, before the new turn, the law had failed to
provide the public with adequate protection.


The critical twist in law, being the accessory,
demanded the essential elements for parasitic accessory liability which are the
mental and conduct elements to be proved. On the conduct element, the law
requires an absolute proof that the second defendant must have assisted in the
crime committed by the first defendant. On the mental component, the law states
that during the encouragement, persuasion, and assistance, the second defend
and must have intended to encourage and take part in the crime committed by the
first defendant. This turn in law is evident in the case of Jogee and Ruddock, where in
both cases, the defendants were convicted of murder, and both their juries, in
line with the Chang Wing- Siu
(1985)8 case principles agreed that
the evidence provided was efficient to establish a case on secondary liability9. On Jogee’s trial,
he was convicted of murdering a former police officer, whereby in such a case,
the principal offender was liable for the offense. During the time of the
murder, Jogee was shouting encouragement words, outside the building where the
death occurred. On the contrary, Ruddock was found guilty of murder because of
a botched robbery incident, with the principal offender admitting cutting the
victim’s throat in an incident that occurred in Jamaica.


The appellants in this case argued that the court
was wrong in using the Chan
Wing-Siu (1985)10
application as the foresight was enough to constitute a mens rea
for secondary defendants in cases involving murder and that the succeeding
decisions did not abide by the parasitic accessory liability principle. The respondents
disputed the propositions of the appellants tasking the legislature with the
challenge of deciding whether amendments were needed on the existing
constitution. The Supreme Court together with the Privy council agreeably
allowed the appeals with the backing that “the introduction of the parasitic
accessory liability principle in Chan-Wing Siu (1985)11, was based on an incomplete,
and in some respects erroneous, reading of the previous case law, coupled with
generalized and questionable policy arguments” that led to wrongly equating
foresight with intention to assist12. While the court
recognized the need to reversed the thirty-year rule on Chan Wing –Siu (1985)13
principle, it considered the principle’s test for foresight for
secondary liability, thereby extending liability befalling the second defendant
on the basis of a lesser degree of culpability being an abnormal divergent from
the basic rule and therefore needed to be amended. The new law thus demanded
that the jury will only find the second defendant guilty if the prosecution can
prove that he or she assisted or encouraged the first defendant to commit a
crime and did so with an essential mental element that the first defendant
committed. Additionally, as per the Chan Wing –Siu
principles, the new ruling stated that, should a secondary person took
part in the assault in which the principal murdered the victim, yet the
secondary person acted with intent to cause bodily harm, but without intention
of causing death to the victim, the judge should direct the jury on the
possibility of manslaughter conviction15.


The jury, because of several reasons readily
accepted the new changes. First, there were initial complaints from the members
of parliament seeking to change this law, in that, had the courts failed in
doing this, the legislature would have replaced it through the statute.
Secondly, the Supreme Court considered the doctrine of secondary liability falling
under the common law doctrine whereby they had a forum to correct any
deviations from a common law doctrine.


In my point of view, the principle of parasitic
accessory liability’s main weakness was its broadness. Factoring the economic
development of that era and the need for people to look for resources such as
land which was becoming inadequate, the poor were likely to be thrown into
jails and their properties taken over by the rich if one of their associates
were convicted of murder crimes16. Additionally, the
Supreme Court, even after adopting the new doctrine closes the window of
revisiting previous cases concerning the weaknesses of the earlier theory. The
Court’s decision is therefore unfair to those who were innocently serving life
sentences. The law should have created a provision of allowing those
individuals to get a fair trial under the new law.


In conclusion, it is essential to examine the
judicial injustices brought about by the law. The facts from the turn from Chan Win-Sui (1985)17
doctrine should be used as by the lawmakers and the Juries today as a
guideline in looking at other laws which, instead of protecting the people, it
hurts them even more. Countries should, therefore, use an approach of involving
people in the process of law making to identify and eliminate issues that would
lead to inequalities in the society and hence delaying the nation from
developing, and at the same time populating the country’s prisons and
destroying the lives of many young people.