Joint Criminal Confusion: Exploring the Merits and Demerits of Joint Enterprise Liability

Abstract

In February 2016, the UK Supreme Court fundamentally changed the criminal law principles of accessorial liability when it handed down its decision in R v Jogee. The Court abolished the head of liability known as 'joint criminal enterprise' (JCE) and replaced it with the ordinary principles of aiding and abetting, which it restated for this purpose. JCE features prominently in international criminal law (ICL) where it has an equally contentious status. The full implications of Jogee remain at present uncertain, underexplored and divisive. In this chapter, I evaluate the merits and demerits of joint enterprise by comparing JCE in English law and ICL. A cross-jurisdictional analysis of joint enterprise reveals more deeply the role the notion plays in the overall taxonomy of criminal responsibility. There are different concepts of joint enterprise with different theoretical groundings. By not recognising this, past debates of joint enterprise liability have failed to appreciate the concept's merits alongside complicity liability.

Silence, joint enterprise and the legal trap

“…While the former term tends to be avoided by legal scholars and, increasingly, legal practitioners, it remains widely understood and offers short-hand for a complex area of law. It is for this reason that we use it throughout this article to denote the legal rules as they relate to (the variously termed accessorial, secondary or complicity liability (see van Sliedregt, 2019: 187).…”