“Anyone who thought that the House of Lords' decision in Rahman [2008] UKHL 45 had clarified the law on secondary participation in murder would have had that view disabused if he had been in this court yesterday.” These were the words of the trial judge, repeated by the Court of Appeal, in R v. Mendez and Thompson [2010] EWCA Crim 516, [46]. Despite more than 15 Court of Appeal and House of Lords decisions in the last 11 years, the doctrine of joint enterprise remains unclear.
Joint enterprise liability enables parties to one crime to be convicted of a second crime where they foresaw that this second crime might take place (Chan Wing-Siu [1985] A.C. 168). This seems to set the bar for joint enterprise liability lower than for basic accessorial liability which, though in flux, appears to require some encouragement or assistance towards the second crime as well as a slightly higher level of foresight of a crime (“real or substantial risk” per Bryce [2004] 2 Cr.App.R. 35, [70]).
Mendez and Thompson presents a paradigm set of facts for joint enterprise liability. A group of men chased down a victim who was attacked with a variety of weapons and eventually stabbed to death. It was not proved who had actually used the knife which had killed the victim, but the two appellants were convicted as secondary parties to murder. At first it had been argued that Thompson stabbed the victim, but the trial judge left it to the jury to convict him as a secondary party rather than as a principal. It was never suggested that Mendez had known about the knife until it was used.
The Court of Appeal allowed the appeals against conviction on the basis that the trial judge's direction to the jury had underplayed the role of the knife and especially Mendez's lack of knowledge of it. Convictions for violent disorder were substituted. So far, there is little remarkable about the case and the outcome seems perfectly reasonable. However, the Court of Appeal considered two significant issues about joint enterprise liability.
First, the Court recognised that the orthodox view of joint enterprise liability is that it is doctrinally an aspect of the ordinary principles of secondary criminal liability. Although Toulson L.J. noted the academic controversy surrounding this, he preferred the orthodox view as identified in Smith and Hogan's Criminal Law, 12th ed. (2008), 207. While this is probably the right answer, there is usually a deeper purpose in even raising the question. Here it was as a portal for Toulson L.J.'s view of the core of both: causation. Identifying this core has been an elusive quest for criminal lawyers. It may be that no one idea suffices. Certainly there appear to be inconsistencies if the core is causation. First, a secondary party's acts do not need to be a “but for” causation so it is unclear what minimal standard is to be applied. It would also ignore the principle that the principal's free, informed and deliberate act in committing the second crime would make any earlier causal contribution of the accessory irrelevant. It even sits uncomfortably with the rules for basic accessorial liability, where only procuring requires proof of causation (Attorney-General's Reference (No. 1 of 1975) [1975] Q.B. 773, 780). Secondly, the case does not offer any normative grounds for causation being relevant. Causation would be strained if the first crime was relied on to supply such grounds. In practice a “joint enterprise” can be inferred when two people happen to be committing the same crime at the same time and even then there is no clear minimum connection between the first and second crime. In short, there is a detailed legal and philosophical debate on the role of causation in secondary participation (see, e.g., Smith [1986] Crim. L.R. 663) but that debate has not matured into a doctrine coherent enough to support Toulson L.J.'s reliance on it.
Second, and much more promising, is the discussion of the “fundamental difference” test. Even where the accessory foresees that his partner will commit another criminal offence, he is not liable where the offence is committed in a “fundamentally different” way from that foreseen: Powell and English [1999] 1 A.C. 1. While some view this defence as an afterthought to joint enterprise, the better view is the one expressed by counsel for Mendez that it is “essential protection against the law of murder going too far” ([15]). However, the difficulty in giving a clear test of fundamental difference makes it one of the principal grounds for joint enterprise appeals, despite much discussion in appellate decisions. Luckily, Toulson L.J.'s analysis is one of the best yet. At [47] he said (emphasis added):
It would not be just that D should be found guilty of the murder of V by P, if P's act was of a different kind from, and much more dangerous than, the sort of acts which D intended or foresaw as part of the joint enterprise.
This explanation is not grounded on technical arguments, but on a clear sense that without the defence joint enterprise is unjust. The Court's terminology is also more expansive than simply using foresight of the existence of a particular type of weapon as evidence of foresight of future acts. The fundamental difference principle should also be available where other circumstances make the acts more dangerous. Foreseeing an assault around the corner from a hospital is one thing, but it may well be “altogether more life-threatening” ([48]) if the assault is the same except that it takes place in the wilderness, 100 miles from help.
It is not just difficult questions of fact about foresight and dangerousness which make the “fundamentally more dangerous” defence so commonly pleaded: if the plea is successful the accessory cannot be liable at all for the death. In English the House of Lords ignored earlier case law cited to them, including Stewart and Schofield [1995] 1 Cr.App.R 441, which had allowed a conviction for manslaughter when the principal was convicted of murder. The availability of a conviction for a lesser offence than the principal would be fairer, more appropriate and more logical than an acquittal. If an accessory foresees grievous bodily harm caused intentionally and the victim dies, albeit with the involvement of more dangerous means, the accessory is connected to that death sufficiently for a manslaughter conviction. Courts had not previously faced up to English's silent dismissal of earlier cases, and it is to be hoped that Toulson L.J. is wrong that the case closed the door to a conviction for a lesser offence ([21]–[22]), [38]).
Mendez and Thompson is a significant attempt to explain the law. While the focus on causation may not be optimal, there is much of value. Given the supposed panacea of the fundamental difference principle in English and the increasing trend of prosecutors to use joint enterprise even when basic accessorial liability is more appropriate, more appeals seem likely.
