Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Thursday, 1 November 2012

On joint enterprise

Those of us who work in the area of criminal law should never forget that the rules of criminal law have a profound impact on the lives of members of our society. This is brought home powerfully by this short film from campaigning group JENGbA (Joint Enterprise Not Guilty by Association).

The film (and the work of the group) highlights the large number of cases where individuals who appear to have been on the fringes of groups that have carried out killings have been charged with and convicted of murder, leading to heavy prison sentences. This is made possible because of the doctrine of joint enterprise.

This is a legal rule that basically holds that all those who are involved in a common enterprise can be held liable for the outcome of that enterprise provided that it is possible to demonstrate some sort of common purpose. Thus it is not necessary for the Crown to prove that the individual charged had the mens rea for the ultimate crime (say murder) provided that it can be proved that intended to share in the purpose or joint enterprise of the group. The existence of the rule is explained on the ground that where a group commits a crime it should not be possible for a member of that group to avoid liability. The rule is thus explicitly aimed at  groups or gangs where proof of membership or involvement may be enough to establish liability for crimes committed by the group.

But this is also where problems arise, because as JENGbA contend, there is evidence that the supposed social threat posed by gangs is being used to prosecute and convict individuals of serious crimes where, if they are guilty of anything at all, it is a much lesser involvement in the crime.

The question is what is to be done. This is an issue that has been looked at by the House of Commons Justice Committee, which has produced a report on the law and recommended both that the DPP produce guidelines for prosecutions in this area - and these have been promised - and that the law be placed on a sttautory footing. But while this has the potential to deal with future cases, by placing some sort of constraints on how the doctrine is used, it is not clear that this can deal with underlying problems with the doctrine itself.
Just as importantly, though, what will happen to those convicted under the use of this harsh and iniquitous doctrine?

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