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    Limitations of Joint Enterprise

    One of the challenges is that certain aspects of the doctrine of joint liability are very uncertain and complicated, making the doctrine’s application difficult. For instance, it is very cumbersome to show in evidence that there was a common intention to commit offence A, particularly where the offenders just met and there was no explicit indication that they had a premeditated plan. The law regarding the question whether the secondary crime is radically distinct from that anticipated by the secondary party is also unclear and complex. There is no case law which clearly explains why the secondary offender cannot be convicted of a lesser offence, and if that is possible, the circumstances under which such conviction can suffice.

    The doctrine’s complexity is such that any reform strategies may cause more difficulties. For instance, the explanation of the mens rea element for the doctrine is inconsistent, with a number of cases assuming that the secondary party should only foresee that the principal is likely to commit a collateral offence, without stating that he must also anticipate the principal’s intention. A good example is the vague dicta in R v Rahman. As regards the general accessorial liability, the fact that the secondary party is culpable because of his association with the principal offender, or presence in the scene of crime is inconsistent with the principle of causation. How this principle comes into play in such cases is very uncertain and courts have the discretion to decide on the basis of public policy and evidential sufficiency.

    Another limitation is that, in homicide cases, both the principal and the secondary party are convicted of murder and, therefore, sentenced…………………….

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