The Future of Joint-up Thinking

Abstract

The law of secondary liability continues to trouble defendants, victims, politicians, practitioners, judges, academics and laypeople. In a recent report, the House of Commons Justice Select Committee called even more forcefully for the Government to consult on reforming the law of ‘joint enterprise’. The committee called, in particular, for a stronger fault requirement: at the moment a secondary party can be liable for the full offence merely because he foresaw a chance that the principal might commit a crime. This article discusses the report, analyses the substantive law in issue and considers appropriate reforms. The report is also a chance to reassess what secondary liability looks like today, a process that reveals that we now live in a post-accessory liability world where ‘joint enterprise’ rules. This shift in language and corresponding shift in fault elements has caused significant uncertainty in understanding the law as well as practical injustice, making it easier to convict for more serious crimes than should be the case. The paper draws on an analysis of the joint enterprise cases decided in 2014 to show how attitudes to evidential and sentencing issues are shaping the substantive law.