Criminal Law: Legal Impact Of Mens Rea For Joint Enterprise Liability

This essay will evaluate the legal impact of mens rea for joint enterprise liability according to the decisioning in R v Jogee (2016). To be discussed is the mens rea requirement of complicity and the absence of actus reus. Other derivative liabilities will be discussed in order to show the difference in the outcome of the case compared to past laws. Inchoate crimes will be defined and discussed referencing mens rea.

To understand and evaluate the Jogee case and mens rea there are a few degrees of mens rea that will need to be explained Which are full which takes into account intention , partial which links to recklessness and negligence none which links to strict liability and secondary participation also known as derivative liability which links to joint enterprise and assisting and encouraging a criminal act. In cases such as these there is usually an absence of a prohibited act which is an absence of actus reus. Another term of this would be inchoate crimes which means something that is not fully formed or developed but is being related to in the knowledge of criminal law. Inchoate offences are usually steps that have been taken to prepare for an act that would be deemed a crime although the act itself has not been completed so no harm has been done to the victim, this can be an offence such as an attempted murder or conspiracy.

One of the arguments of criminal liability is whether criminal liability should be imposed on where no harm has been caused from the book Kyd et al. (2017) It suggests that an approach one could use is ‘desert’ which is the idea that a person who attempts in offence should be held liable as their moral culpability is the same ask the person who committed the full offence . It can also be said that there is a potential second order of harm or threat of harm to the victim. The general law for attempt applies to substantive offences then offences that are seen to be separate in including the attempt element of its own. The law of attempt is not part of substantive offences aiding and abetting and conspiracy although this does apply to all other offences. Another argument can be said whether the law of attempt is justifiable, In reasoning it can be deemed fair, although the defendant has not committed the act or in other words the actus reus is omitted the mens rea is still current and the law should still include mens rea in its criminal decisions. Where there should be a difference is the difference in sentencing or criminal liability for example grievous bodily harm instead of murder.

Complexity is also known as aiding and abetting , accessory, accomplice law or those that encourage and help others to commit a crime while on the other hand inchoate offences are focused more on the efforts that have not been completed or agreements that have not been completed to commit a crime. Complicity deals with the completed offence which would be the actus reus and the mens rea of intent. Although this is different in the case of murder as both parties liable would be prosecuted for murder rather than a different offence like complicity, the same degree of liability and punishment as the main offender. In the case of murder the punishment would be a mandatory life sentence although it can be said this is a harsh result as murder takes into consideration the actus reus whereas within complexity there’s an absence of a prohibited act which is the actus reus. This can be considered a grey area that needs to be interpreted or looked into whether it is fair or is under the requirements of mens rea and actus reus.

In the case of Jogee the decision raises key concerns about the mens rea requirement regarding a secondary participant that could be convicted if they could have foreseen the possibility of the events being committed. although the secondary participant must intend to encourage the participant in committing the offence , if the secondary participant has foresight of the possibility of an offence this still does not stand under the men’s Rea a requirement but can be taken into consideration by a jury in evidence as intention this will then be left to the jury to decide based on the evidence given. It can be said that there are blurred lines here and in fact the joint enterprise is not satisfactory as complicity or derivative liability can put a secondary participant under the same mandatory sentence as the participant. Before the Jogee decision of joint enterprise the previous law before was criticised due to the secondary participant being charged with the same serious offence as the principal offender but this did not seem just. In comparison with the law before and after the Jogee decision it can be deemed that the decision is satisfactory as it stops innocent liability from being prosecuted at such a high level without a hand in the committing of the crime. This shows that this ruling should be taken into consideration case by case rather than the criminal law as a whole. depending on the circumstances the men’s rea element is key in understanding weather a sentence is required for a secondary participant whereas the primary participant has a more obvious decision due to actus reus. It can also be argued that the new law is problematic because it becomes difficult for the courts to prosecute in cases where there are groups of people with several secondary participants which results in a serious crime.

In the case where more than one person has been involved in carrying out the offence although one person has committed the events this can be called complicity regarding the former person. One can have derivative liability as is the case of R v Jogee (2016). Where the separate appellants had been convicted of murder through joint enterprise although one defendant had committed the murder. Jogee had in fact encouraged the murder of the police officer while the other appellant Ruddock was liable regarding the robbery as a result was part of the murder of the victim. To the judge had made the decision based on the liability as an accessory that would be attached to the defendant while the defendant may not have physically done the act but also intended to do serious harm. In this case the court determined the principle of parasitic accessory liability which was first established in the case of Chan-Wing Slu v The Queen (1985).

The case is an example off the developing of the law in joint or criminal enterprise. It has shown that past legal principles in many cases have not been fair in its approach but also brings into consideration foresight and intention in the area of complicity. Foresight and intention has become a vital part of determining whether the men’s rare is to be considered stand alone in a crime although it can be said this is not the first development in such a legal reconstruction as in cases such as R V English and Powell and Chan-Wing Slu, where the judgments from this case started the parasitic accessory liability that has been applied before the difference is the courts have different ways of proving the intention of a secondary participant. In the case of Jogee and Ruddock the appeal to have their convictions overturned was accepted and the courts decided their conviction was unjustly under the former law. This is an important reversal in law although cases similar to this where participants are serving the sentence given can be said that the courts have admitted to the fact that the law was unjust before which shows many participants maybe have completed or concurrently serving a sentence under that law.