A Sense of Common Purpose

This article contends that a flawed interpretation of joint criminal enterprise (JCE) embraced by the Special Court for Sierra Leone (SCSL) has set a dangerous precedent for international criminal adjudication. Breaking from a trend towards more careful application of the liability doctrine at the International Criminal Tribunal for the former Yugoslavia (ICTY), a series of JCE decisions from the Armed Forces Revolutionary Council, Revolutionary United Front, and Charles Taylor cases betray profound doctrinal confusion and overreaching at the Special Court. The problem began with indictments that failed to satisfy the pleading requirements for a common criminal purpose at the core of each alleged JCE. Since this defect in the JCE pleadings has not been recognized as such by the SCSL Appeals Chamber, the Court has struggled to properly assess the individual liability of each accused, with negative consequences for the clarity and correctness of the JCE jurisprudence. Most recently, in Sesay, Kallon and Gbao, Majorities in the Trial and Appeals Chambers entered and upheld convictions based on an interpretation of ‘common purpose’ so flawed that it detached the basic and extended forms of JCE from the core mens rea that defines them, thereby expanding the doctrine from a legitimate liability theory into a vehicle for guilt by association. This article offers a critical assessment of the SCSL’s JCE jurisprudence to date, framing the Court’s experience as a concrete cautionary tale of the doctrine misapplied. JCE fails to be a useful tool for assessing individual liability, unless its basic elements are clearly pled in the indictment and rigorously applied by judges. The authors recommend that future international criminal proceedings abandon the SCSL’s misconceived approach, and instead take care to adhere to the procedural safeguards articulated in recent ICTY jurisprudence - ensuring that the JCE is pled with an unambiguously criminal common purpose, and that the trier of fact strictly construes each legal element of the doctrine in accordance with the culpability principle, the principle of legality and the fair trial rights of the accused.

This paper demonstrates that parasitic accessorial liability (sometimes known as “joint enterprise”) is the erroneous tangent from two strands of common law jurisprudence. The original two strands are (1) liability for aiding, abetting, counselling and procuring, known here as basic accessorial liability and (2) liability for participating in a common illegal purpose, known here as the common purpose rule. The second of these, the common purpose rule, was an extension of the normal accessory liability principles: it was a way to conceive of the parties as committing a series of acts together, rather than as isolated events where one aided, abetted, counselled or procured another. The tangent, (3), was parasitic accessorial liability, a new form of liability, created entirely by the judiciary, particularly from 1966-1985. Here, no aiding, abetting, counselling or procuring was required for further crimes beyond the first (unlike in (1)), nor that the crime was part of a common purpose (as in (2)).Since its conception and slow development in the 1960s, the parasitic accessorial liability tangent has created serious doctrinal and practical difficulties. First, despite some assertions to the contrary, it is indeed a tangent from the historic position of the common law. It is not based on the principles of basic accessorial liability or the common purpose rule; it is clearly a departure from those authorities. To the extent that the rule can be justified it must be justified by arguments not from history, but from theory or practice. Unfortunately, it lacks both. To justify parasitic accessorial liability in theory requires the difficult idea that to foresee a non-negligible risk of another committing a crime is automatically to authorise that risk. Should the risk eventuate, without any physical link to the secondary party, that party is then liable in full for it. There is no lower form of subjective culpability other than strict liability and there is no lower form of physical contribution at all. In practice, parasitic accessorial liability certainly permits convictions for most serious offences where it is hard to prove events, but that is not clearly a good to society.However, the unhappy result of this tangent is even worse than simply having a very wide form of accessorial liability. In the last two decades, the tangent has become dominant: the language and liability rules of “joint enterprise” have taken over almost entirely. Prosecutors by default charge and defendants are then convicted on the basis of a “joint enterprise”, rather than on the basis that the defendant was an accessory, or a party to a common illegal purpose. This new terminology elides all the distinctions the law had good grounds for making. Most troublingly, it has led to a downward shift in the liability for all secondary parties. Traditionally, to be liable in full for the principal’s offence, the secondary party needed to contribute in some minor way to the principal’s crime, knowing of the principal’s purpose to commit that crime or one like it and intending to aid or encourage him. Now, a secondary party need only contribute in some minor way, intending his or her own act, while foreseeing that the principal might commit that crime or one like it. In practice, the narrative presented for accessories is that they were “in it together” and insufficient effort is put into distinguishing between relative contributions and fault.

The legal doctrine of ‘common purpose’ in South African criminal law considers all parties liable who have been in implicit or explicit agreement to commit an unlawful act, and associated with each other for that purpose, even if the consequential act has been carried out by one of them. It relieves the prosecution of proving the causal link between the conduct of an individual member of a group acting in common purpose, and the ultimate consequence caused by the action of the group as a whole. The National Prosecuting Authority’s controversial and vociferously challenged decision (initially upheld, then withdrawn at the beginning of September 2012) to charge 270 demonstrators at Lonmin Platinum Mine in Marikana with the murders of 34 colleagues under the ‘common purpose’ doctrine, implying liability by association or agreement, raises the question as to the constitution and characteristics of the crowd and of the public, respectively. This article outlines the history of the application of the common purpose rule in South Africa, to then examine ‘common purpose’ within the philosophical parameters of group psychology and collective intentionality. It argues for methodological individualism within a psychoanalytic theorisation of group dynamics, and a non-summative approach to collective intentionality, in addressing some problems in the conceptualisation of group formation.

In the case of S v Govender (2023 (2) SACR 137 (SCA)), the Supreme Court of Appeal (SCA) was required once again to examine the common purpose doctrine, which although it has been in use in South African law for the past century, has in recent years seen significant development, in its expansion from being applied solely to a prior agreement, to also being applied in the case of an active association between two or more persons. The importance of distinguishing between these different forms of the common purpose doctrine has concomitantly also become increasingly important.As the court points out in S v Mzwempi (2011 (2) SACR 237 (ECM) par 56), prior-agreement common purpose encompasses “any conduct which falls within the wide and general common design”, whereas active-association common purpose is “restricted to particular conduct”. Thus, in active-association common purpose, the association is with a “specific act” by which the crime was committed by another participant in the common purpose. It follows that, given the “marked differences” between the two forms of common purpose:“in a case where the state seeks to place reliance on the doctrine of common purpose, the trier of fact will be required to determine the nature of the common purpose relied upon, what the scope of that common purpose happened to be, and whether the accused was a participant, and remained a participant, in the common purpose.”The discussion examines the significance of the distinction between the different forms of common purpose doctrine, in light of the SCA judgment in the case of Govender.

In an important scholarly intervention on African publics, Raufu Mustapha argues that the multiplicity of publics is not an obstacle but instead a creative resource that can be used to forge common purpose through public deliberation. However, he does not elaborate how common purpose operates and to what effect. In this article, we examine the dynamics of common purpose among student teachers in South Africa. Teachers inculcate the dispositions and habits of public deliberation in young people. How teachers are trained and where they teach is therefore crucial to understanding the constitution of publics. We analyse data from a cohort of student teachers regarding their reasons for becoming teachers, their future plans and their anxieties about their profession. We find little evidence of race and class differences among student teachers. Instead, the evidence suggests that student teachers shared a common purpose informed by hyper-particularistic notions of the public, which was not only raced and classed, but also limited to a narrow understanding of their own community. In light of this, we seek to explain how policy contributes to the conditions under which common purpose leads to segregated publics, closing off the generative possibilities of multiple publics.

In the face of rising concerns about citizenship, national identity, diversity and belonging in Britain today, politicians from all sides of the political spectrum have looked to schools to inspire and invigorate a strong, modern sense of patriotism and common purpose, which is capable of binding people together and motivating citizens to fulfil their obligations to each other and to the state.In this timely and astute analysis, Michael Hand unpacks the claims made on both sides of the debate to assess whether love of country is a defensible aim of education. Remarking on the curious failure of engagement between defenders and opponents of patriotic education, he looks beyond the usual arguments for and against, to offer original insight into whether teaching patriotic attachment can be defended on rational grounds. Rather than looking merely to the practical difficulties of cultivating common bonds without misrepresenting or distorting the country's history, Hand's tightly argued conclusion is that reasonable disagreement about the desirability of loving one's country rules out the explicit teaching of Patriotism in schools, and therefore, it should not be actively promoted but rather taught as a controversial issue in the classroom.Breaking new ground in the intellectual debates around teaching citizenship and promoting common patriotic purpose, Patriotism in Schools is an illuminating treatment of a pressing contemporary issue, which will animate and provoke debate amongst parents, teachers, students, academics, politicians and policy‐makers alike.

A network is a way of making connections to enhance what we do, why we do it and when we do it. Our networks evolve naturally, personally and professionally through the people we know and the connections we make. How big or small our networks are depends on our personality, our role and preferred approach. As busy people where do we go to expand our knowledge network when we need to know something or someone? We may ask colleagues for advice, search the internet or social media. We may strike lucky within seconds, but we may return many hits that we have neither the time nor the skill to distil. To determine a network’s capacity to deliver its functions, we should ask whether its structure is the most appropriate one (Mendizabel & Hearn, 2011), revisiting the Network’s purpose ensures its adaptability. The structure and types of Networks were explored by Plastrik & Taylor (2006), Wilson-Grau (2007) with Battilana & Casciaro (2013) suggesting two types of networks: Cohesive and Bridging with the latter driving divergent change and the former non-divergent change. Kotter (2014) advocates two systems working simultaneously: hierarchies and network structures. This supports organisations to maximise network flexibility with hierarchy bureaucracy. Network leaders have to be authentic, adaptable and able to work with ambiguity. Leaders are ‘collaborative, accessible and engaged, acting as ‘facilitators’ rather than traditional bosses (The Health Foundation: Effective networks for improvement Learning Report 2014) As networks evolve and grow and support social change across boundaries their impact and evaluation is growing with the development of evaluation frameworks. Emerging evaluations contribute to the evidence of the necessity of networks to support the complexity of health and social care integration (Network Impact, Boston). The journey of health and care networks in Scotland evolved in 1999 through the concept of Managed Clinical/Care Networks focusing mainly on healthcare but with collaborative working between people with lived experience. Two National networks have operated in a similar health, care and cross sector landscape: the Improvement Network (IN), hosted by the Joint Improvement Team evolved in 2011 to support partnerships implement the Reshaping Care for Older People (RCOP) programme and Change Fund. The IN developed improvement tools, delivered a series of cross sector learning events, WebEx’s and eBulletins in collaboration with partners. These activities created the conditions for knowledge exchange, innovation, networking and benchmarking around the RCOP objectives and initiatives. The Leading Quality Network (LQN) was established, 2011, as a national leadership and quality improvement network to support the national Quality Strategy implementation. It delivered a series of collaborative masterclasses and learning events, developed Mentoring for Leading Quality, an online mentoring matching application, People Connect and Communities of Practice. The LQN Evaluation and Impact Review reported: -The importance of a clear and compelling Network purpose statement, developed by members, and meaningful to people within and out with the Network. - Networks are successful in connecting people from different organisations, backgrounds and specialties, providing mutual support to members, and access to expert resources. - Networks need a coherent and organised communications strategy, both to existing and potential new members. - To demonstrate effectiveness consider quantitative measures alongside qualitative measures of Network impact. - Networks are particularly effective in enabling members to share and discuss ideas, evidence, good practice and learning. The evolution of the IN and Integrated Care and Support will build on learning from The Health Foundations (THF) Network Maturity Model and THF ‘Effective networks for improvement’ which identifies the 5 core features for effective networks: - Common purpose - Cooperative structures - Critical mass - Collective intelligence - Community building With the legislation of Adult Health and Social Care Integration in Scotland networks are well placed to lead and facilitate shared learning, links, connections and engagements between a variety of networks and communities of practices that support improvements in integrated care: within and across localities and partnerships at regional and national level; and beyond Scotland. The consolidation of the national improvement teams into the Integrated Improvement Resource offers the opportunity to maximise the learning from these networks, evidence of impact and evolving network theory to develop a network that is response to the improvement needs to support integrated care and health and social care integration and to share our learning across our national and international networks. Engagement with a wide range of stakeholders and improvement leads will be used to inform network scope, design, communications and reach of a network to support improvement for health and social care integration.

In this article, the central or principal issue for consideration is the appropriate standard that should be adopted at common law for foresight of consequences at common law where death has arisen out of an unlawful joint enterprise and the complicity or otherwise of a secondary party is in issue. Although the discussion is focussed upon the common law, the same issues of principle and policy arise in relation to potential reforms of the ’common purpose’ rule under the Criminal Codes.

The decision to charge 270 miners from the Marikana platinum mine with the murder of 34 of their colleagues shot by the South African Police Service was greeted with shock. How could workers standing up for their rights be charged with the death of their colleagues? Was the African National Congress cynically using an ‘Apartheid law’ to impose its power? In other countries we may well sit comfortably in the belief that such an affront to justice could never happen under our legal systems. But things are not so simple. In fact, there is quite a lot of truth in the assertion by National Prosecuting Authority (NPA) spokesman Frank Lesenyego that the ‘common purpose’ doctrine, under which the miners are being tried, is part of the common law.

This article will engage with the difficult question of whether common purpose could be successfully used to prosecute the surviving Marikana miners for the murder of their fellow miners, shot and killed by the police. It will conclude that this is entirely possible,on the law as it stands. However, I will argue that the law is not what it ought to be. I will argue that common purpose violates fundamental principles of criminal law, beyond the arguments traditionally raised. The one traditional argument raised and rejected by the Constitutional Court in Thebus, which bears repeating, is that it is a violation of the presumption of innocence to attribute causation and that this is not solved, as the Constitutional Court stated, by placing the issue of causation beyond questions of proof for both parties. I will note also that Thebus does not seem to answer the charge that common purpose violates the dignity of an accused. In addition, I will argue that, contrary to fundamental principles, common purpose punishes evil thoughts alone to the extent that it relies upon subjective thought to establish conduct, and it violates the requirement of voluntariness and capacity for self-control because it allows for liability where the accused did not, and could not, control the conduct in question. It allows for the resort to unreasonable force in response to an attack. Furthermore, I will argue that common purpose has an effect which can, in many instances, be met with a valid defence of mistake of law. I will conclude that, if principle is observed, and while fairly broad defences are conceivable, common purpose ought to be abolished as a deep source of embarrassment in our criminal law.

During the late twentieth and early twenty-first centuries there was a push towards greater inter-organizational working in many countries as a way of addressing complex public policy challenges. Practitioners often pursue structural or cultural solutions, with a collaborative culture seen as a prerequisite for successful inter-organizational working. However, the disruptive challenges with structural change are well-known, and cultural change can be difficult, if not impossible, to achieve. In this chapter the role of common purpose is advocated as a more effective solution, with performance management then suggested as a way to support its development. Using a comparative qualitative case study design a typology is developed which depicts the interplay between structure, culture and common purpose, offering a nuanced analysis of how to support different types of inter-organizational working. Performance management is then reconceptualized as a mechanism to align individuals with the common purpose of an inter-organizational arrangement, thereby enhancing its chances of success.

his research investigates the enfolding of InnerCHANGE into Novo. These are two organisations with distinct identities that joined forces in 1985, and InnerCHANGE became one of the collectives under Novo. When they came together, they agreed to prioritise the evangelistic mandate of the church. They fleshed out their agreement into a hybrid model encompassing four areas of growth. These areas of growth are quantitative, qualitative, organic and incarnational. When these have been put to good use, they have contributed positively to their common purpose. However, this hybrid model seems to be a compromise that neither of these organisations fully adhere to. They do not focus equally on the four areas of growth. Sometimes an area of growth is portrayed as the best expression of their common purpose at the expense of others, which has stirred up some tensions in the organisations. This article reflects on the fruitfulness of the cohabitation of Novo and InnerCHANGE, and how this plays out on the local team level of InnerCHANGE South Africa. It also engages the existing tensions around the agreed upon four areas of growth to bring reconciliation and draw wisdom from it. The article is structured around how the cohabitation between Novo and InnerCHANGE started, cross-fertilisation, interaction with internal tensions and how the four areas of growth play out at a local InnerCHANGE level. It concludes that an intentional implementation of the four areas of growth by both Novo and InnerCHANGE could generate much wisdom and effectiveness in terms of their common purpose.

Although the doctrine of common purpose is accepted and repeatedly applied by South African courts, it has acquired a certain infamy in South Africa’s academy. Some of that infamy is due to the doctrine being abused in the apartheid era. Most of the controversy, however, is because the Constitutional Court has defended the doctrine on consequentialist grounds of crime control. This has led some scholars to assume erroneously that there cannot be a non-consequentialist normative justification for the common purpose doctrine. This article aims to correct what has become an uncritical academic orthodoxy and to provide a non-consequentialist justification for the doctrine. We argue that common purpose is a necessary doctrine if the criminal law is to take the individual agency and dignity of an offender seriously. Much of the criticism of common purpose is anchored in a thin conception of collective agency, which fails to appreciate what the criminal theorist John Gardner terms an agent’s individual teamwork reason. This means that all sorts of ill-conceived objections are thrown at common purpose. Our Constitution rightly vindicates the dignity and justice of common purpose in criminal law.

The Royal College of Psychiatrists' Annual General Meeting in Edinburgh in June 2007 witnessed the launch of the joint position statement from the College, the Care Services Improvement Partnership and the Social Care Institute for Excellence ‘A Common Purpose: Recovery in Future Mental Health Services’ as part of its opening session. This is now available as a stimulus and a guide for clinicians and teams to consider how to engage in the recovery agenda and whether to make it their common purpose also.

Common purpose liability remains a controversial aspect of the principles of criminal liability in South African law, despite the doctrine passing constitutional muster in S v Thebus (2003 (2) SACR 319 (CC)). This definition was most recently set out in the latest edition of Burchell’s Principles of Criminal Law (5ed (2016) 477). It is clear from the definition that the common purpose doctrine can apply in two scenarios: first, where there is a prior agreement between persons to commit a crime, and secondly, where there is an intentional active association with the commission of the crime. Where either of these situations can be established on the facts of the case, it is not necessary for the State to prove a causal contribution on the part of all of those involved in the criminal conduct, since the conduct of the individual who caused the consequence is imputed to all the others who are involved. 
 It has been suggested that these requirements apply equally to all cases that involve common purpose, but that they are “more or less self-evident in cases where there is a prior conspiracy”. However, as Snyman points out, there are important distinctions between the two forms of common purpose liability. Thus where reliance is placed on a prior agreement or conspiracy, as opposed to active association, proof of agreement with a general common design (rather than association with a specific act) will suffice for liability. Moreover, with regard to the prior agreement form, presence at the scene of the crime is not required, and it is further not required that the accused actively associated himself with the actual commission of the crime at the time of its commission. In the fourth edition of Burchell, the author introduces an entirely new understanding of the operation of the common purpose doctrine, in explaining the judgment in the case of Mzwempi. Burchell’s discussion is worthy of consideration. My interest is not merely personal ‒ Burchell disagrees with my own interpretation of the judgments in Nzo and Mzwempi – but because adopting this understanding would change the way we view the common purpose doctrine.