1 00:00:00,780 --> 00:00:05,410 It's my pleasure to welcome Enrique Carvalho here today to give the also seminar. 2 00:00:06,150 --> 00:00:10,230 Enrique is assistant professor at the School of Law at Warwick University, 3 00:00:11,550 --> 00:00:19,680 where he and his work explores the link between criminal law, punishment, subjectivity and society. 4 00:00:20,400 --> 00:00:27,900 He's particularly interested in how criminal law and criminal justice reflect and conditions, socio political identity and organisation. 5 00:00:29,070 --> 00:00:33,360 Last year he published his first monograph called The Preventive Turn in Criminal Law, 6 00:00:33,360 --> 00:00:37,410 which some of you in the room, I'm sure have read, and if you haven't, you should. 7 00:00:37,980 --> 00:00:44,220 And today he will be presenting on a particular legal case, as I understand, about joint enterprise. 8 00:00:45,160 --> 00:00:49,890 So. Thank you very much. Thank you very much for having me here. 9 00:00:49,950 --> 00:00:59,040 Thank you very much for coming. I guess I should start with a bit of a disclaimer that this is still very much a work in progress. 10 00:00:59,970 --> 00:01:08,160 It's something I've been perhaps thinking about for some time, but now, only recently, I tried to make a paper out of it. 11 00:01:08,460 --> 00:01:13,410 So, uh, probably there are some rough edges around along the way, 12 00:01:13,410 --> 00:01:21,000 but this means that I very much appreciate your comments and I'll just add because I'm generally interested in them, 13 00:01:21,000 --> 00:01:25,770 but because they'll probably be very helpful in finalising this paper. 14 00:01:27,990 --> 00:01:34,620 Has it gone to sleep? So perhaps I maybe can you fix it? 15 00:01:35,040 --> 00:01:44,310 Because otherwise, before I try with my incompetent technological skills, you have to do this normally and then move it down and then it wakes up. 16 00:01:46,380 --> 00:01:52,170 I don't know why it's so weird also. Thank you. 17 00:01:53,340 --> 00:02:05,169 Right. So I guess the this paper really began two years ago, more almost precisely two years ago, 18 00:02:05,170 --> 00:02:14,160 when I was preparing for my lecture on joint enterprise, which was going to happen about a week or a week and a half from that day. 19 00:02:14,610 --> 00:02:18,330 And suddenly the news came up. There is this case called Joji, 20 00:02:19,020 --> 00:02:31,319 and this case basically has abolished the the doctrine of the law on joint enterprise and has a the Supreme Court has 21 00:02:31,320 --> 00:02:38,460 declared that the law had taken a wrong turn in establishing the doctrine and therefore it should no longer hold. 22 00:02:40,740 --> 00:02:49,020 So I was very annoyed, not just because I had to completely rewrite my lecture in one week, 23 00:02:49,530 --> 00:02:55,679 but also because I really enjoyed criticising joint enterprise and and I was like, 24 00:02:55,680 --> 00:03:09,150 so this but I guess the decision first time I heard about it was the decision sounded really radical and many people came very quickly to praise it, 25 00:03:09,540 --> 00:03:15,509 to say it was a milestone in perhaps some sort of judicial activism, 26 00:03:15,510 --> 00:03:20,850 that it was a long time coming, even chamber joint enterprise, not guilty by association. 27 00:03:20,850 --> 00:03:27,389 This campaigning organisation that tries to campaign against what they consider 28 00:03:27,390 --> 00:03:31,860 miscarriages of justice around this law was very positive about the judgement. 29 00:03:32,340 --> 00:03:41,219 And and so my first impression of all it seems here that something really special has happened in that the law 30 00:03:41,220 --> 00:03:48,750 House and the Supreme Court has really come forth and done something significant with the law in this area. 31 00:03:49,200 --> 00:03:55,110 And this to some extent annoyed me a lot, and I thought it was great if that had happened. 32 00:03:55,500 --> 00:03:59,850 But my feeling about the area, 33 00:03:59,940 --> 00:04:03,959 the area of joint enterprise is that joint enterprise was a very interesting manifestation 34 00:04:03,960 --> 00:04:09,120 of what I considered in my work to be a fundamental problem with criminal law. 35 00:04:09,630 --> 00:04:14,090 And therefore, I thought was maybe, maybe I was wrong. 36 00:04:14,490 --> 00:04:18,840 Maybe these problems were not so ingrained and difficult to deal with because I 37 00:04:18,840 --> 00:04:25,710 thought maybe the laws can change and then things can radically change with them. 38 00:04:26,700 --> 00:04:37,019 However, we thought fast forward two years and actually today I looked on Twitter and Gemba. 39 00:04:37,020 --> 00:04:46,620 The Twitter chamber just retweeted a tweet which talks about the decision that happened either today or very recently. 40 00:04:47,250 --> 00:04:53,190 And the tweet basically said Polestar and Joji. 41 00:04:53,310 --> 00:04:59,400 Nothing changed, right? Nothing changed. How can the CPS sleep at night? 42 00:04:59,500 --> 00:05:10,960 So I. And this case was about a group of five people that were prosecuted in the, uh. 43 00:05:11,520 --> 00:05:14,880 I forgot the name caught on something. 44 00:05:16,200 --> 00:05:28,280 I just read the tweets, like, about an hour ago. So anyway, that there was this conviction that this prosecution, five people were prosecuted, 45 00:05:28,300 --> 00:05:32,000 three of them were convicted for murder, one of them for manslaughter. 46 00:05:32,370 --> 00:05:33,660 One of them has been acquitted. 47 00:05:34,050 --> 00:05:44,070 And in the news, we're very clear that the conviction happened based on joint enterprise, which was supposed to no longer exist. 48 00:05:44,580 --> 00:05:52,350 All right. So this to me shows that there is a very interesting problem around this area of law and especially around this decision of Georgia. 49 00:05:52,710 --> 00:05:57,590 How come the law has changed so much and how come it hasn't changed at all? 50 00:05:58,700 --> 00:06:02,430 So there is an interesting paradox surrounding this case. 51 00:06:03,000 --> 00:06:09,180 And I, I want to discuss a little bit this far. 52 00:06:09,190 --> 00:06:16,980 That's the in light of my previous and current work around criminal law and punishment. 53 00:06:17,700 --> 00:06:32,400 And so this paper is, to some extent, a case study of these more general theories that I try to discuss in my work is is in general very theoretical. 54 00:06:33,960 --> 00:06:42,120 I mean, I'm trying this is an attempt by me to try and grant some of these theoretical ideas in more specific case studies. 55 00:06:42,420 --> 00:06:51,690 But also this is paper is also some kind of a scoping paper for what I hope will become or is already becoming my next project. 56 00:06:52,200 --> 00:06:55,380 So I'll talk a little bit about this. 57 00:06:56,250 --> 00:07:00,780 I'll start by talking a little bit about this more theoretical background, 58 00:07:00,960 --> 00:07:06,750 especially around these two concepts, the concept of ambivalence and the concept of hostility. 59 00:07:07,440 --> 00:07:16,200 And then I'll talk a bit. I'll make the discussion more specific, talking about joint enterprise, both before and after. 60 00:07:17,460 --> 00:07:26,400 So in my previous work, especially the work of developing my Ph.D., that eventually became my monograph. 61 00:07:27,030 --> 00:07:37,170 I, I do an examination of the especially theoretical and conceptual grounds of the criminal law. 62 00:07:37,590 --> 00:07:45,420 And I suggest that at the core of the criminal law and the core of process of criminalisation, their eyes only thc convenience. 63 00:07:46,640 --> 00:07:53,490 And so this ambivalence is first fundamental to criminal law in itself, in that it, 64 00:07:54,030 --> 00:07:57,660 in a nutshell, can be seen as torn between two paradoxical dimensions. 65 00:07:57,900 --> 00:08:03,389 On the one hand, and especially formally, the criminal law aims to promote individual autonomy, 66 00:08:03,390 --> 00:08:09,660 equality and justice through notions such as individual responsibility, autonomy, 67 00:08:09,660 --> 00:08:14,610 etc. But on the other hand, and especially more substantially, 68 00:08:15,090 --> 00:08:24,810 it preserves it's a very important instrument for preserving conditions of structural inequality and structural violence in society. 69 00:08:25,440 --> 00:08:36,200 So it does these two things at the same time. And so the criminal law is inherently ambivalent or inherently has to promote aspects of that lead, 70 00:08:36,240 --> 00:08:41,490 or that should lead towards notions of human emancipation and preserves conditions that 71 00:08:41,940 --> 00:08:48,900 hinder and actually depends upon these very aspirations being or remaining hindered. 72 00:08:50,040 --> 00:08:55,500 I also talked about how the criminal law manages this, 73 00:08:55,930 --> 00:09:05,220 this ambivalence through what I called after Ackerman, the reassurance function of the criminal law. 74 00:09:05,850 --> 00:09:15,810 So the criminal law tries to reassure citizens, especially the law abiding citizens of society, 75 00:09:16,260 --> 00:09:30,200 that the insecurities that exist in society, especially in securities with regards to people's capacity to obey the law, the law, 76 00:09:30,210 --> 00:09:33,930 the capacity to protect their freedom, etc., etc., 77 00:09:34,320 --> 00:09:45,780 and that these securities should and are not the product of inherent problems in the way the law conceptualise this society, 78 00:09:46,050 --> 00:09:49,770 but rather they are problems of deviance. 79 00:09:51,120 --> 00:09:59,850 So in other words, what the law tries to do is that it says that responsibility, individual responsibility, holds despite its problems. 80 00:10:00,220 --> 00:10:06,370 And mainly because the limit what can be seen as limitations in the ideas around individual responsibility, 81 00:10:07,540 --> 00:10:14,410 rule of law, etc., actually the consequence of individuals or groups that don't respect the law. 82 00:10:15,320 --> 00:10:25,299 All right. So it shifts the burden or the cause of insecurity from what I consider more structural 83 00:10:25,300 --> 00:10:32,740 aspects of society towards individuals that the criminal law identifies as dangerous. 84 00:10:34,060 --> 00:10:40,690 So in doing so, it reassures an individual's society that society is in fact a civil order. 85 00:10:40,780 --> 00:10:43,300 It is civilised. Those values hold. 86 00:10:45,340 --> 00:10:55,840 The aspirations of the law are civil can be achieved, and therefore they should be reassured that if they act in accordance with the law, 87 00:10:56,200 --> 00:11:05,770 they are acting in a way that can be seen as right and that can be conditioned to the good society, to the promotion of their own interests. 88 00:11:06,490 --> 00:11:15,970 All right. And this reassures works, as I had just suggested, through processes of identification and estrangement. 89 00:11:16,550 --> 00:11:16,800 All right. 90 00:11:17,300 --> 00:11:29,470 So the law gives cues that suggests to individuals that if they're law abiding, they identify with the interests of society, with notions of welfare, 91 00:11:29,470 --> 00:11:37,390 with the values of the criminal law, etc., and those who don't, those who break the law are estranged from these very values. 92 00:11:38,530 --> 00:11:46,610 So effectively, the criminal law suggests that there is a distinction between us and between dangerous others. 93 00:11:47,290 --> 00:11:53,949 So obviously the criminal law does this at the same time as it formally suggests that the criminal 94 00:11:53,950 --> 00:11:59,830 law treats everyone equally and that people who come before the criminal law are respected, 95 00:12:00,760 --> 00:12:03,640 have their agency respected, have their autonomy respected. 96 00:12:03,670 --> 00:12:13,360 The criminal law has procedural safeguards that would theoretically prevent exactly this distinction between us and them. 97 00:12:14,830 --> 00:12:25,240 So the result of this is that the criminal law is inherently ambivalent, especially the subject of the criminal law. 98 00:12:25,810 --> 00:12:37,420 The person who is subjected to the criminal law is presented or can be seen as inherently ambivalent, torn between responsibility and dangerousness. 99 00:12:37,840 --> 00:12:45,940 So in my book, I try to look at some aspects of criminalisation, especially in relation to preventive criminal laws, 100 00:12:46,510 --> 00:12:53,170 to show how this ambivalence is behind some of the problems around preventive criminal offences, 101 00:12:53,680 --> 00:13:03,670 in the sense that A and one of the main problems that identify in the book is that there's this ambivalence. 102 00:13:03,940 --> 00:13:07,960 It follows a specific, dynamic, specific dynamics. 103 00:13:09,760 --> 00:13:17,770 So on the one hand, the responsibility side of criminal subjectivity, 104 00:13:17,770 --> 00:13:24,850 of the subjectivity of the subject of criminal law is there to provide and to promote the image of the responsible legal subject. 105 00:13:25,240 --> 00:13:34,660 So ideas of responsibility in the law, they especially ideas of responsible subjectivity, notions, for instance, 106 00:13:34,660 --> 00:13:47,630 embedded in in notions of capacity in the criminal law, demands for for the predominance of offence, rare, the presumption of innocence, etc. 107 00:13:48,190 --> 00:14:01,179 It talks about it provides and promotes this image that individuals that are subjected to the law are responsible and they are treated as so. 108 00:14:01,180 --> 00:14:03,010 They are respected as so. Right. 109 00:14:03,280 --> 00:14:12,640 And this idea of responsibility grounds the possibility for individual justice and the aspiration of individual justice in in the law. 110 00:14:13,480 --> 00:14:18,640 At the same time, the law is also permeated by notions of dangerousness. 111 00:14:18,940 --> 00:14:27,880 And this dangerousness occurs precisely to differentiate between legal and criminal subjectivity, subjectivity of those who break the law. 112 00:14:28,630 --> 00:14:37,450 Right. And the criminal subjectivity is presented as distant from or precisely falling short of legal subjectivity. 113 00:14:37,450 --> 00:14:45,460 And you see that in many aspects of what criminal law scholars called instances of character responsibility. 114 00:14:46,570 --> 00:14:51,010 So those who are deemed, those who can be criminalised, who can be liable for crimes, 115 00:14:51,250 --> 00:14:55,720 are precisely those who have failed to act as responsible legal subjects. 116 00:14:58,510 --> 00:15:08,000 And. And these two sides, they they occur under criminal law and obviously they occurred dynamically. 117 00:15:08,180 --> 00:15:14,900 So you can see that there are aspects of the criminal law that prioritise one or another of these two sides or one of them. 118 00:15:15,170 --> 00:15:19,670 But my argument in the nutshell is that these two sides are always there. 119 00:15:20,080 --> 00:15:26,870 Right. And since the side of dangerousness is so important to the reassurance function of the criminal law, 120 00:15:27,560 --> 00:15:33,380 it tends to be emphasised whenever that reassurance function is deemed most necessary. 121 00:15:34,670 --> 00:15:34,970 All right. 122 00:15:35,210 --> 00:15:46,220 So the more people are insecure and anxious about specific problems or specific aspects of society problem with regards to specific crimes or events, 123 00:15:46,220 --> 00:15:50,400 etc. the more the criminal law needs to discharge its reassurance function. 124 00:15:50,840 --> 00:16:04,760 So the more the law appears in its exclusionary aspect rather than in its expressive dimension. 125 00:16:06,980 --> 00:16:16,340 So the need for prevention and security was one of the things that I discussed in my book emphasises dangerousness over responsibility. 126 00:16:16,700 --> 00:16:21,680 So this this balance seems to prioritise dangerousness over responsibility. 127 00:16:24,040 --> 00:16:33,180 So that's more or less the gist of and I'm being really perhaps simplistic, but I, 128 00:16:34,050 --> 00:16:42,050 I guess I hope hopefully I manage to give an idea of, of what I was trying to talk about in relation to that. 129 00:16:43,100 --> 00:16:49,910 Then in my sense, it when I was finishing the book, I already started working on another project, 130 00:16:50,480 --> 00:16:59,600 a project more directed at analysing punishment or more specifically issues of punitive ness, the urge to punish. 131 00:17:00,050 --> 00:17:06,830 Why do people why do people desire to punish? Why the people adopt punitive attitudes, etc.? 132 00:17:07,220 --> 00:17:20,480 And in my collaborative work, which I do with my colleague, Associate Chamberland, we started to develop this idea of hostility. 133 00:17:22,040 --> 00:17:28,850 And especially from my perspective, the way I go about it is that the reassurance function of the criminal law, 134 00:17:29,150 --> 00:17:37,460 this symbolic function that the criminal law has in reassuring the prevalence of civil order, etc., needs enemies. 135 00:17:38,330 --> 00:17:46,880 It needs individuals and groups to be identified as dangerous criminals who should and who must be punished, 136 00:17:47,360 --> 00:17:55,489 spite of the reassurance function of the criminal law, that we believe that there are individuals out there who cannot or who refuse to behave as 137 00:17:55,490 --> 00:18:02,750 responsible subjects and who therefore pose a danger to not only to society in the future, 138 00:18:02,750 --> 00:18:15,700 but often social order more broadly. And in my collaborative work, we explore the idea that this this aspect of the reassurance function, 139 00:18:15,720 --> 00:18:24,650 this hostility speaks very intimately to an emotional urge that we have in contemporary society, 140 00:18:25,130 --> 00:18:31,520 which is an urge to feel a sense of belonging when especially when we feel that 141 00:18:31,790 --> 00:18:40,369 their sense of belonging is that this idea of of solidarity is lacking in society, 142 00:18:40,370 --> 00:18:53,060 especially in our social experience. And we develop in a few papers this notion that punishment, through its symbolic role, 143 00:18:53,540 --> 00:19:03,170 it provides individuals with a notion of solidarity, a notion that individuals belong to something, to society. 144 00:19:03,440 --> 00:19:12,860 They are part of the community that is brought together through punishment. 145 00:19:13,850 --> 00:19:19,490 However, we also theorise that this notion of solidarity brought forth by punishment is very problematic. 146 00:19:20,210 --> 00:19:23,330 It's problematic because, first of all, it's hostile. 147 00:19:23,780 --> 00:19:31,880 It brings people together only insofar as they are together against, you know, antagonism to others, to somebody else. 148 00:19:32,180 --> 00:19:37,040 So the sense of solidarity is from its outset, exclusionary, right. 149 00:19:37,400 --> 00:19:43,700 And we develop in this favours as well, this sense that this sense of solidarity is ultimately illusory. 150 00:19:44,480 --> 00:19:55,450 All right. So basically, contrary to what Durkheim anticipated, we do not feel punitive because we have strong bonds of solidarity. 151 00:19:55,460 --> 00:20:00,770 There are violated by crime. Rather, nowadays it seems to be the case that we feel. 152 00:20:00,840 --> 00:20:10,200 More clarity when we don't have lots of sort of social solidarity, when we feel alienated, when we feel disgruntled, anxious, insecure, and the law, 153 00:20:10,680 --> 00:20:14,790 and therefore we pursue punishment as a way to tell ourselves, 154 00:20:15,540 --> 00:20:24,360 to pretend or to perhaps to emotionally experience some sense of a solidarity in society. 155 00:20:24,720 --> 00:20:29,010 But the problem is that because it's this sense of solidarity, it's not really there. 156 00:20:29,580 --> 00:20:36,870 The moment we stop punishing, we are thrown back into the very sense of alienation that we had before. 157 00:20:37,110 --> 00:20:41,490 And therefore we feel that we need to punish more. And so on and so forth. 158 00:20:42,300 --> 00:20:46,280 Self-perpetuating. Well, so. 159 00:20:48,600 --> 00:20:55,770 So this ties in very nicely with this idea of the reassurance function of the criminal law, and especially this notion of dangerousness. 160 00:20:57,180 --> 00:21:07,290 So this insecurity that perhaps is to some extent in endemic to to societies that perpetuate structural inequality and violence, 161 00:21:09,390 --> 00:21:17,160 is then becomes a permanent stimulus for us to indulge in punitive measures to some extent, 162 00:21:17,160 --> 00:21:24,270 and which is exacerbated depending on when situations become a especially precarious. 163 00:21:24,700 --> 00:21:30,239 Right. So this insecurity that is generated is then work through and externalised through 164 00:21:30,240 --> 00:21:35,100 the image of these uncivilised barbarians at the borders of civil society, 165 00:21:35,100 --> 00:21:44,549 of these dangerous individuals that are within society, and yet at the same time, outside of it, 166 00:21:44,550 --> 00:21:49,710 because they don't behave in the civilised manner in which they were supposed to behave, 167 00:21:52,920 --> 00:22:03,569 it seems the criminal law to some extent needs these images of a dangerousness in order to discharge its reassurance, 168 00:22:03,570 --> 00:22:08,640 function and rituals of criminalisation. 169 00:22:09,880 --> 00:22:17,610 And in many ways, and especially in specific cases such as our support of suggest joint enterprise evil. 170 00:22:17,850 --> 00:22:20,580 What I'm calling are the construction of dangerous belonging. 171 00:22:22,170 --> 00:22:36,420 These ideas of dangerousness are constructed, and they are preserved and perpetuated as part of these symbolic apparatus and of this symbolic process. 172 00:22:40,970 --> 00:22:49,160 Okay. So there are those this ambivalence around the criminal law, especially around that subject. 173 00:22:49,940 --> 00:22:52,970 And this ambivalence tends towards dangerousness, 174 00:22:53,030 --> 00:23:01,909 especially when there is an emphasis on ideas of insecurity that in turn, lead us to feel that we need to be secure. 175 00:23:01,910 --> 00:23:06,890 We need the criminal law to make us feel safe and to make us feel reassured. 176 00:23:07,500 --> 00:23:21,230 Right. And in turn, this function ties in to what can be seen as an emotional a how do you say link? 177 00:23:21,260 --> 00:23:30,260 An emotion I want dependence is too strong, but an emotional tendency that we have that we, 178 00:23:30,380 --> 00:23:40,670 we people in contemporary societies might have towards seeking a feeling of a sense of solidarity through hostility. 179 00:23:41,990 --> 00:23:47,360 So moving on to joint enterprise then, huh? 180 00:23:48,110 --> 00:23:57,590 So first thing to I guess to talk about is that joint enterprise has been widely recognised as a broad, imprecise term. 181 00:23:58,280 --> 00:24:02,180 So there are many different meanings that are given to this idea of joint enterprise. 182 00:24:02,570 --> 00:24:12,200 And mostly it's used perhaps in the broader meaning of joint enterprise is up to people who are who engage together in criminal activity, 183 00:24:12,470 --> 00:24:16,040 either as joint principles or its principles and accessories. 184 00:24:17,000 --> 00:24:20,389 The idea is that there is a common purpose. I guess what? 185 00:24:20,390 --> 00:24:25,040 That's what the notion of joint enterprise suggests. 186 00:24:26,060 --> 00:24:35,780 But the criminal law, a criminal law doctrine, joint enterprise also acquired a more specific meaning which relates to this now old 187 00:24:35,780 --> 00:24:43,220 doctrine or parasitic accessory of liability or power for friends to make it a bit cuter. 188 00:24:44,900 --> 00:24:53,270 So what is follow about? So basically this idea of parasitic accessory liability covers instances in 189 00:24:53,270 --> 00:24:59,120 which or at least was supposed to cover instances in which people are together, 190 00:24:59,630 --> 00:25:08,210 people engaged together in criminal activity. Let's say from whatever a burglary is or a big fight, something like that. 191 00:25:08,360 --> 00:25:16,340 And in the middle of that criminal activity, one of them, one of these individuals goes on to commit a more serious crime. 192 00:25:17,750 --> 00:25:25,530 So and very the most common example is, yes, there is a fight between two groups. 193 00:25:25,550 --> 00:25:31,490 Let's say in the middle of the fight, one of the people kill one of the people from the other group. 194 00:25:31,940 --> 00:25:32,210 All right. 195 00:25:32,420 --> 00:25:42,050 So the question that arises is, can the other people can the remainder of the group also be held liable for that killing, especially for that murder? 196 00:25:43,560 --> 00:25:50,540 Right. And the idea of the old doctrine of parasitic accessory liability is that, yes, 197 00:25:50,540 --> 00:26:00,950 the they could be held liable for that more serious crime of the different crime that arose from a joint enterprise. 198 00:26:01,730 --> 00:26:10,160 As long as they could be said to have realised that in the course of the joint enterprise, the primary party might commit a more serious crime. 199 00:26:10,160 --> 00:26:16,010 For instance, might kill with intent to do so, or with the intent to cause grievous bodily harm. 200 00:26:16,470 --> 00:26:26,870 That's part of the. So I don't know if everybody's familiar here with this aspect of criminal law, but in the mens rea, the, 201 00:26:26,870 --> 00:26:36,050 the the elements of murder include unlawful killing with either the intent to kill or with the intent to cause grievous bodily harm or serious harm. 202 00:26:36,440 --> 00:26:43,730 So if the defendant has either one of these two mental states, they can be held liable for murder. 203 00:26:44,180 --> 00:26:51,469 And so if this murder happens in the middle of a joint enterprise, then everybody else was involved in. 204 00:26:51,470 --> 00:26:57,620 The joint enterprise, according to the doctrine, say that they can also be held liable for murder for the same crime. 205 00:26:57,920 --> 00:27:03,170 As long as it can be said that they have realised that the crime was likely to happen. 206 00:27:04,100 --> 00:27:08,899 All right. And this is a very complex aspect of legislation. 207 00:27:08,900 --> 00:27:19,879 There are many different elements to it, this notions of conditional intent that become very complicated but very important in this area. 208 00:27:19,880 --> 00:27:21,020 Because, for instance, 209 00:27:21,410 --> 00:27:33,230 if A knew that he was carrying a knife and that he might use this knife to commit to seriously harm somebody in the middle of the joint enterprise, 210 00:27:33,500 --> 00:27:38,780 even if this intent, so to speak, was only conditional when they might use a knife. 211 00:27:38,950 --> 00:27:46,930 If necessary, it is sufficient to grant a liability if that murder then goes on to occur. 212 00:27:49,270 --> 00:27:57,940 So this is a very broad aspect of liability. 213 00:27:57,940 --> 00:28:06,669 The possibility of liability coming from this doctrine is very broad, has been severely criticised not only among all the things, 214 00:28:06,670 --> 00:28:14,140 because by saying that someone can be held liable by merely foreseeing that murder might occur, 215 00:28:14,440 --> 00:28:20,589 means that someone can be held liable for murder as an accessory with a mental element that's 216 00:28:20,590 --> 00:28:28,090 much lower than or much less specific than the mental element required for the principle. 217 00:28:30,040 --> 00:28:37,350 So it's much harder to commit murder as a principle, in other words, than to commit murder as an accessory due to this group. 218 00:28:37,850 --> 00:28:50,710 Right. So if we look at some of the previous cases, the rationale for this doctrine has been very clear. 219 00:28:51,360 --> 00:29:01,960 Right. So even when it's rationalised in terms of principle and we can see that it is strongly grounded on the idea of association. 220 00:29:02,440 --> 00:29:13,120 All right. So by participating in the joint enterprise, the defendant has associated themselves with here foreseen murder. 221 00:29:13,680 --> 00:29:16,979 Right. Obviously, 222 00:29:16,980 --> 00:29:22,180 the I imagine that the idea of a foreseen murder and that someone associating themselves 223 00:29:22,180 --> 00:29:29,530 with the foreseen murder is may sound a bit bizarre and may sound a bit non-specific, 224 00:29:30,010 --> 00:29:38,620 but some other decisions, such as this decision in Poland, Daniels has made it very clear that, 225 00:29:38,620 --> 00:29:45,160 well, it's okay because these rules are not necessarily based solely on logic. 226 00:29:45,580 --> 00:29:57,040 This is not really about logic. This is about an important law that is necessary to deal with an important problem, 227 00:29:57,580 --> 00:30:03,100 to give effective protection to the public against criminals operating in guns. 228 00:30:03,520 --> 00:30:08,079 All right. So the idea behind this doctrine that behind this often there was always this 229 00:30:08,080 --> 00:30:12,700 very strong notion that there is a there's an important policy element here. 230 00:30:13,310 --> 00:30:18,430 Right. Is this law is there to keep us safe, safe from these dangerous guns? 231 00:30:21,130 --> 00:30:28,450 However, besides former problems, the law of joint enterprise had many substantive issues as well. 232 00:30:28,930 --> 00:30:38,380 So several reports were recently made around joint enterprise and showed just how problematic this area of the law has been. 233 00:30:38,800 --> 00:30:49,870 So this 2014 report by the Bureau of Investigative Journalism, in which I participated with that minor role, 234 00:30:50,830 --> 00:31:03,100 it was found that around 44 of all homicide prosecutions between 2015 and 2013 were for homicides where two or more defendants were involved. 235 00:31:03,790 --> 00:31:10,120 And one fifth of all homicide prosecutions in this period involved four or more defendants. 236 00:31:10,360 --> 00:31:21,730 So there is perhaps strong indication that many, at least if not all of these instances, involved some notion of joint enterprise in the prosecution. 237 00:31:22,630 --> 00:31:29,920 But obviously, there's another substantive problem in that although joint enterprise can apply to any crime, 238 00:31:30,490 --> 00:31:36,850 it has been substantively significantly used in case of homicide. 239 00:31:37,330 --> 00:31:42,760 And obviously murder carries a special problem in that. 240 00:31:44,470 --> 00:31:51,850 Besides all that, the English law saying that principals and accessories are charged with the same crime. 241 00:31:52,180 --> 00:31:55,239 You're not charged with a different crime of assisting or encouraging. 242 00:31:55,240 --> 00:31:59,559 You're charged with the same crime as an accessory to murder. 243 00:31:59,560 --> 00:32:06,640 Makes things even more complicated, because if someone is convicted of murder, there is a mandatory sentence of life imprisonment. 244 00:32:06,880 --> 00:32:14,950 So the principal and accessory cannot be really differentiated in the sentences stage either. 245 00:32:14,950 --> 00:32:28,839 They can be in relation to the minimum term of imprisonment, but that's in many cases, arguably that's a minor and a possibility for mitigation, 246 00:32:28,840 --> 00:32:38,640 especially when in terms of murder being an accessory that the role, the one place in the murder in the home is. 247 00:32:38,710 --> 00:32:44,680 Sorry is not presenting the guidelines as a possible aspect of mitigation. 248 00:32:45,520 --> 00:32:48,940 Killing in a group, though, is an aggravating factor. 249 00:32:49,870 --> 00:33:07,900 So those little hope in a substantial way that the fact that someone played a minor role in a murder might actually lead to a much lower sentence. 250 00:33:09,250 --> 00:33:13,120 And in this report was estimated that at the time, 251 00:33:13,720 --> 00:33:21,310 at least 500 people were currently serving life sentences for convictions under the joint enterprise. 252 00:33:23,900 --> 00:33:32,180 The problems become even worse when, for instance, if we look at the dangers associations report, 253 00:33:32,660 --> 00:33:38,780 it shown that there is a disproportionate criminalisation of young black, 254 00:33:38,780 --> 00:33:46,370 Asian and minority ethnic men, especially men or women also, but predominantly men. 255 00:33:47,400 --> 00:33:55,100 And that this criminalisation there is disproportionate criminalisation of especially black young men is made through use 256 00:33:55,100 --> 00:34:05,320 of the symbolism of the idea of gang culture in prosecutions that is used to produce evidence of association and force. 257 00:34:05,870 --> 00:34:12,950 So for instance, in this case that I just mentioned, a thought on this. 258 00:34:13,220 --> 00:34:22,310 Yes. Certainly is the case where these five young men were prosecuted and four of them were convicted in Torkham Heath. 259 00:34:24,230 --> 00:34:27,620 In order to to conduct this prosecution. 260 00:34:27,620 --> 00:34:33,620 The prosecutors brought evidence, such as music videos that are very common, 261 00:34:33,620 --> 00:34:43,580 actually a tool of evidence in these cases to prove that they that the defendants involved were members of a gang. 262 00:34:43,970 --> 00:34:49,010 There are all these they used specific forms as long they in the videos, 263 00:34:49,010 --> 00:34:58,100 they talk about possible use of violence, etc., and there were also Facebook messages, etc., etc. 264 00:34:58,280 --> 00:35:06,019 But the problem with this idea of gang culture is that through this image that the individuals involved are part of, 265 00:35:06,020 --> 00:35:10,580 a gang association can be very broadly constructed. 266 00:35:11,060 --> 00:35:17,629 Right. And this is exemplified by the fact that in many joint enterprise cases, 267 00:35:17,630 --> 00:35:26,390 defendants are convicted of murder when they weren't even present at the time of the of the offence. 268 00:35:26,810 --> 00:35:41,660 And actually, in this particular case that happened very recently, one of the people convicted was, oh, I'm trying to remember his name. 269 00:35:41,930 --> 00:35:48,470 But again, I apologise. I just looked at this today, but I think his name was Adam. 270 00:35:49,940 --> 00:35:53,660 Um, Ben, Ben Harvey, something like that. 271 00:35:54,050 --> 00:36:01,760 But anyway, one of the defendants, he had to be physically restrained and removed from the dock after the sentencing, 272 00:36:02,000 --> 00:36:06,050 and he kept yelling as if he was being removed. I wasn't even there. 273 00:36:06,600 --> 00:36:17,000 Right. So this is a very exemplary of some of the main issues that are identified with the law of joint enterprise. 274 00:36:17,810 --> 00:36:23,660 So this black and Asian and minority ethnic individuals who are disproportionately 275 00:36:23,660 --> 00:36:28,640 criminalised by the law were also found in this report to be usually younger, 276 00:36:28,940 --> 00:36:34,640 to have longer sentences and to have more co-defendants during trial. 277 00:36:35,660 --> 00:36:43,219 And these findings were confirmed to some extent by the London Review that stated that up to 278 00:36:43,220 --> 00:36:49,130 half of those convicted under the doctrine of joint enterprise were from VME backgrounds, 279 00:36:50,090 --> 00:36:55,780 as were nine out of ten of the names on the Met Police's database of convicts. 280 00:36:56,210 --> 00:37:09,290 So the the the issue the fact that prosecutors use this gang, the symbol of the gun, as a very important prosecutorial tool in this case, 281 00:37:09,290 --> 00:37:23,240 it leads is one of the main issues that perhaps lead to the overcriminalization of black and other minority ethnic individuals. 282 00:37:26,530 --> 00:37:35,440 And the idea I just mentioned at the moment, you mentioned the idea of a gung ho singular images come to mind. 283 00:37:35,590 --> 00:37:50,739 Right. Especially since the riots, the 2011 riots managed to once again reinforce a specific moral panic around the idea of gun violence, 284 00:37:50,740 --> 00:37:58,130 even though evidence studies around the riots show that most of the violence there was not gang related. 285 00:37:58,150 --> 00:38:10,930 But anyway, so how does this trace back into the issues that I mentioned before around ambivalence, hostility, etc.? 286 00:38:11,440 --> 00:38:21,880 So ambivalence that the doctrine of joint enterprise as it was definitely has a lot of ambivalence in it. 287 00:38:22,210 --> 00:38:31,060 So on the one hand, it is justified as a doctrine of us seem to be and Joji will confirm that until 2016 it was good law. 288 00:38:31,750 --> 00:38:35,299 So it had the semblance of an approach, 289 00:38:35,300 --> 00:38:44,170 a principled or at least an approach that for over 30 years was considered principle in relation to criminal responsibility. 290 00:38:45,550 --> 00:38:49,690 And at the same time, the focus on the dangerousness of gun violence, group violence, 291 00:38:49,690 --> 00:38:55,510 etc., clearly off balances and predominates over the try no aspects in this area. 292 00:38:56,770 --> 00:39:03,910 So it is clearly an area of criminalisation in which these issues of dangerousness can be seen very close to the surface. 293 00:39:06,430 --> 00:39:20,830 And because this area of the law has a heightened sense of ambivalence, it's an area that has been identified as exposing a very important tension. 294 00:39:22,330 --> 00:39:30,190 And this tension has been addressed and towards the doctrine, or even though this tension could be seen, for instance, 295 00:39:30,190 --> 00:39:42,040 this doctrine has been defended very staunchly throughout its existence as a very important tool of prosecutorial tool in a very important, 296 00:39:42,040 --> 00:39:54,520 perhaps instrument of security. And something that perhaps corroborate this idea is that the doctrine of joint enterprise is just one 297 00:39:54,760 --> 00:40:01,420 of many different instruments that have been developed along this period to deal with the gun problem. 298 00:40:05,110 --> 00:40:12,250 At the same time as it was decried as unprincipled and unjust by others, 299 00:40:14,650 --> 00:40:24,940 and you can say and you can perhaps see that this ambivalence has been increasingly heightened throughout the existence of this doctrine. 300 00:40:25,060 --> 00:40:33,430 And then recently we see a huge reinforcement of criticism around the doctrine coming from many different directions, 301 00:40:33,430 --> 00:40:36,400 from the justice community, from all of these reports, 302 00:40:37,030 --> 00:40:48,940 etc., etc., so that the legitimacy of the doctrine was increasingly seen to be questioned due to its predominantly preventive and punitive conduct. 303 00:40:51,080 --> 00:41:01,970 So I also suggest that there is a very clear element of hostility being expressed for the law of joint enterprise 304 00:41:03,320 --> 00:41:11,809 in that the dangerousness around this area is used as a very interesting tool to overcriminalization, 305 00:41:11,810 --> 00:41:19,370 to criminalise over criminalise specific populations especially, and to do so in a very hostile manner. 306 00:41:19,550 --> 00:41:28,820 For instance, the symbolism of gang related violence in joint enterprise is clearly used as a marker of dangerous belonging, 307 00:41:29,570 --> 00:41:36,170 which ends up essentially as individuals and increasing criminalisation, you know, instead of limiting it. 308 00:41:36,590 --> 00:41:45,620 It is very interesting. If you look at studies around gangs and especially sociological studies around gangs in the US, we see that gangs, 309 00:41:45,680 --> 00:41:51,709 the idea of a gang can be constructed in a very restricted manner as a specific subgroup 310 00:41:51,710 --> 00:41:56,900 belonging to a subculture in which people have bonds of solidarity towards each other, 311 00:41:57,230 --> 00:42:00,980 that they have specific forms of identification, etc., etc. 312 00:42:01,640 --> 00:42:07,580 And although if you look at the definition of a gang with some legal instruments, we see that, for instance, 313 00:42:08,270 --> 00:42:14,300 the need for some form of identification to be established in order for us to be able to talk about the gang is there. 314 00:42:14,930 --> 00:42:23,360 And especially in joint enterprise prosecutions, we see that the idea that the individual was related to gang culture, 315 00:42:23,960 --> 00:42:31,640 related to gun violence in some way is used to broaden the scope of criminalisation so that individuals end up being criminalised if they were, 316 00:42:32,300 --> 00:42:36,350 you know, if they had any kind of association with gang members. 317 00:42:37,700 --> 00:42:47,120 I think people seeing seem to be too frequently on someone's Facebook and texting each other a lot and maybe appearing in music videos, 318 00:42:47,120 --> 00:42:53,149 etc. They can be easily constructed as participants of a gun. 319 00:42:53,150 --> 00:43:02,450 That gang immediately gangs this idea of this image of a group that pursues and perpetuates violence, 320 00:43:02,780 --> 00:43:08,510 etc., etc. and this leads to these individuals being prosecuted. 321 00:43:09,510 --> 00:43:09,670 Right. 322 00:43:10,460 --> 00:43:20,390 And I think this is well, very well put in the dangerous associations report problematic application of the gang discourse as a prosecution strategy. 323 00:43:20,690 --> 00:43:27,680 So reliant on this common sense, racialized and stereotypical discourse that links black, 324 00:43:27,740 --> 00:43:33,740 Asian and minority ethnic men with an involvement with guns, with drugs and with violence. 325 00:43:35,020 --> 00:43:43,670 Right. So especially if you look at the socioeconomic aspects of this criminalisation, 326 00:43:44,780 --> 00:43:49,159 we can suggest that this construction of dangerous belonging around gang related 327 00:43:49,160 --> 00:43:53,930 violence translates structural problems into a problem of dangerousness. 328 00:43:54,590 --> 00:44:04,340 Why these people are not together, because I don't know of their their social conditions, of cultural aspects, etc. 329 00:44:04,340 --> 00:44:08,419 No, they were together because they were planning to do something wrong. 330 00:44:08,420 --> 00:44:15,410 They were planning to engage in violence. And therefore this helps to channel hostility through otherness and estrangement. 331 00:44:15,800 --> 00:44:22,490 These people are estranged from society. They are in being labelled as gang related. 332 00:44:22,970 --> 00:44:27,410 They are estranged from law abiding society, and it's civil order. 333 00:44:28,430 --> 00:44:35,180 So and an interesting aspect which has been discussed here and others like, 334 00:44:35,450 --> 00:44:48,740 but an interesting aspect of this problem that I'm not going to talk about in detail here is that the focus of the criticism of the doctrine, 335 00:44:51,110 --> 00:44:58,940 the idea that the what if if we if we do not see this broader, 336 00:44:59,090 --> 00:45:06,890 deeper aspects of the problems around to enterprise and instead focus criticism on its doctrinal aspects, 337 00:45:07,790 --> 00:45:11,810 a problem of joint enterprise as being a problem of law and a problem of principle. 338 00:45:12,320 --> 00:45:21,740 We can lose sight of these larger problems around penal hostility and instead emphasise 339 00:45:21,740 --> 00:45:27,470 this idea of reform as a solution which we suggest is itself very problematic. 340 00:45:27,740 --> 00:45:38,000 And there is a paper that's coming out now in which we talk about the problems of the idea of reform around prisons and the prison crisis. 341 00:45:38,420 --> 00:45:41,540 But I think the same could be, say, about legal reform. 342 00:45:43,490 --> 00:45:49,820 Okay. I think we're coming towards the end of the presentation. 343 00:45:49,920 --> 00:45:52,560 So finally, just talk about Georgie. All right. 344 00:45:52,980 --> 00:46:07,200 So when Georgie came, as I mentioned, right, he was it initially appeared to be a very strong decision in terms of its criticism of joint enterprise. 345 00:46:07,770 --> 00:46:12,020 So the Supreme Court also acting as the private counsel, 346 00:46:12,570 --> 00:46:19,080 and that decision said that there is no doubt that the principle that they identified as 347 00:46:19,110 --> 00:46:26,370 giving birth to the doctrine of parasitic accessory or liability was a new principle. 348 00:46:26,820 --> 00:46:31,710 And that this principle, the Supreme Court has concluded, 349 00:46:32,010 --> 00:46:41,370 cannot be supported and cannot be supported because it was based on an incomplete and in some respects erroneous reading of previous case law, 350 00:46:41,640 --> 00:46:49,470 which was and that's, I guess is an interesting aspect for critics of joint enterprise coupled with generalised and questionable policy argument. 351 00:46:49,490 --> 00:46:59,640 So the Supreme Court was very clear in Georgia that the law took a wrong turn in establishing the doctrine, so to speak, of joint enterprise. 352 00:47:00,180 --> 00:47:08,040 And therefore, it stated in this decision that power should no longer be good law. 353 00:47:08,940 --> 00:47:17,040 All right. And that from from now on, uh, sorry. 354 00:47:18,330 --> 00:47:20,490 My my laptop went to sleep now. 355 00:47:22,470 --> 00:47:33,120 And the cases which would previously fall into this idea of joint enterprise should now follow general rules of accomplice liability. 356 00:47:33,630 --> 00:47:40,290 So joint enterprise should be no more or any particular in terms of doctrine. 357 00:47:40,770 --> 00:47:48,480 This decision said that intention is not only foresight should it would be necessary for the military in this case. 358 00:47:48,550 --> 00:47:54,629 So that main doctrine of criticism of parasitic accessory liability was directly 359 00:47:54,630 --> 00:48:03,540 addressed and said someone cannot be held liable for murder in those cases anymore, 360 00:48:03,540 --> 00:48:07,529 only for having foreseen that the murder might occur now, 361 00:48:07,530 --> 00:48:14,280 then they will need to be proved that they intended to assist or encourage the commission of that murder. 362 00:48:15,480 --> 00:48:18,990 Right. So in the answer it sounds that's pretty good, right? 363 00:48:19,290 --> 00:48:23,460 So why didn't it work? Basically, why? 364 00:48:23,790 --> 00:48:28,290 Why two years on? People can say that nothing has changed, but. 365 00:48:28,680 --> 00:48:35,610 Well, like I identified in relation to issues around the criminal law, more generally, 366 00:48:36,930 --> 00:48:44,010 there is a symmetry here in attention and ambivalence in relation to the form and the substance of the judgement. 367 00:48:44,520 --> 00:48:49,380 So we can say that formally the judgement is saying no more joint enterprise. 368 00:48:49,740 --> 00:48:53,910 Now we only have accomplice liability and this is good. This is better. 369 00:48:54,330 --> 00:49:01,350 All right. However, if we dig a bit deeper, there are several problems with that case. 370 00:49:02,160 --> 00:49:14,010 Right. First is that although it said foresight is no longer sufficient to ground them in Syria for a murder in those cases. 371 00:49:15,330 --> 00:49:21,660 This idea of foresight still remains at the heart of the mainstream cases of joint enterprise. 372 00:49:22,050 --> 00:49:30,090 Right. So Supreme Court was very clear that the error there was to equate foresight with intent to assist as a matter of law. 373 00:49:30,510 --> 00:49:34,260 The correct approach is to treat it as evidence of intent. 374 00:49:34,710 --> 00:49:40,150 Right. However, in the case, if we read the case in more detail, we see that the idea, 375 00:49:40,150 --> 00:49:46,000 the foresight, what would be in those cases, the main evidence of intent is very clear. 376 00:49:46,890 --> 00:49:54,240 So still, the idea is that although there is a formal difference there, which we the jury needs to be satisfied, 377 00:49:54,240 --> 00:50:03,540 that the defendant intent is to encourage the way in which this intention is constructed in the case will still be through the same route. 378 00:50:04,740 --> 00:50:15,540 Right. And this was made even clearer when the Supreme Court was going to went on to discuss the effect of its decision on previous convictions. 379 00:50:16,580 --> 00:50:21,870 So the Supreme Court was seemed very confident in their decision that this doesn't mean 380 00:50:21,870 --> 00:50:30,210 that previous convictions are in any way insecure or they led to any form of injustice. 381 00:50:31,320 --> 00:50:35,309 All right. And is this part of the decision was really interesting. 382 00:50:35,310 --> 00:50:40,800 So the error identified of equating foresight with intent is important as a matter of principle, 383 00:50:41,250 --> 00:50:45,120 but it does not follow that to have been invoked into the facts of the outcome. 384 00:50:45,720 --> 00:50:49,770 So at the same time, as I said, there's something really wrong here and there's a lot. 385 00:50:49,880 --> 00:50:54,410 35 years, they said. But this doesn't mean that previous cases were wrong. 386 00:50:54,920 --> 00:51:04,520 Right. And this has been translated in the aftermath of the decision so far in which all appeals but 387 00:51:04,520 --> 00:51:12,260 one have been dismissed because virtually the Court of Appeals is adopting this principle, 388 00:51:13,070 --> 00:51:23,840 which is a well-established principle, that changes in the law should not necessarily lead to appeals unless substantial injustice can be established. 389 00:51:24,200 --> 00:51:28,580 Right. But the fact that this law has been so severely criticised, 390 00:51:28,850 --> 00:51:35,240 considered unjust by so many people and to some extent also by the Supreme Court in this decision, 391 00:51:37,040 --> 00:51:47,750 and that at the same time, none but one so far cases could actually challenge the previous law is curious. 392 00:51:49,100 --> 00:51:54,559 And this one case was very recent like a couple of weeks ago, and a retrial was overturned. 393 00:51:54,560 --> 00:52:01,760 So we can still see what will actually be the outcome of this retrial. 394 00:52:02,690 --> 00:52:12,800 So, I mean, formally speaking, we can say, well, there are many reasons why there is such a protection on past convictions here. 395 00:52:13,280 --> 00:52:20,600 All right. If we allowed all these appeals, you know, chaos would ensue, the floodgates, etc. 396 00:52:20,840 --> 00:52:23,870 And also it would be very onerous. Right. 397 00:52:23,990 --> 00:52:32,090 So there are these these, of course, a pragmatic aspect to this element of the decision. 398 00:52:32,420 --> 00:52:39,950 But I suggest that this element of the decision is also an expression of the 399 00:52:39,950 --> 00:52:47,120 inherent ambivalence around this area of the law in which the Supreme Court itself, 400 00:52:47,130 --> 00:52:52,850 in many ways seemed to say that, that although the principle, the form of the law had to be protected, 401 00:52:53,240 --> 00:53:04,610 the message of of around the responsibility and individual justice in the law needed to be protected and reform substantially more. 402 00:53:04,610 --> 00:53:09,259 So we could be safe. We could be assured that most of these cases, 403 00:53:09,260 --> 00:53:18,970 these previous cases manage to identify dangerous individuals who could have been fairly convicted of murder or. 404 00:53:21,550 --> 00:53:35,560 And so we can identify this ambivalence and we can also identify an element of hostility in the decision, in the sense that the decision, 405 00:53:36,400 --> 00:53:44,860 although it was very clear that we wanted to to reform this this formal aspect of the law, it still did a lot. 406 00:53:44,950 --> 00:53:55,300 There was a lot of work in the decision to protect the efficacy of the law, in preventing gun violence, preventing group violence. 407 00:53:55,570 --> 00:53:59,140 Just like the old doctrine was doing. Right. 408 00:53:59,620 --> 00:54:06,520 And we can see that in many aspects of the decision. For instance, this new mens rea and we you say intention is still required, 409 00:54:07,000 --> 00:54:15,909 is interestingly left really open to the idea that the courts need to prove intention. 410 00:54:15,910 --> 00:54:21,130 Jury needs to be satisfied that the defendant intended to assist the most serious crime. 411 00:54:21,670 --> 00:54:31,060 But no real substance is given as to what degree of foresight this this this intention really requires. 412 00:54:31,300 --> 00:54:43,750 And this is interesting because this contrasts with, for instance, the discussions around oblique intent that relate to the law of murder, 413 00:54:44,140 --> 00:54:54,160 in which the current law suggests that in order to find intention to kill or intention to cause grievous bodily harm, 414 00:54:55,480 --> 00:55:02,350 the courts need to be satisfied when looking at the misery of the principle that the principle, 415 00:55:02,350 --> 00:55:08,650 if the intention was not the principles primary aim in the sense of their purpose. 416 00:55:08,980 --> 00:55:13,660 Nevertheless, the principle can still be said to have intended to cure, to seriously harm the victim. 417 00:55:13,930 --> 00:55:23,470 If they could have been said to have foreseen that the result death or serious harm, was a virtual certainty of the arising from their conduct. 418 00:55:24,070 --> 00:55:39,940 So discussions around intention and liability as as a principle seem to really try to protect these oblique form of establishing intent. 419 00:55:40,300 --> 00:55:41,860 And in this decision here, 420 00:55:42,190 --> 00:55:50,440 it's almost as if the opposite was attempted in which the Supreme Court was very clear that although intent is not necessary, 421 00:55:50,620 --> 00:55:53,920 intent can be construed as constructed through foresight. 422 00:55:55,150 --> 00:56:04,240 So although there is this formal difference, substantially nothing suggests that things need to change that much in this area. 423 00:56:06,430 --> 00:56:15,550 And perhaps for that reason, liability for joint enterprise both strategy continues to rely on the same prosecutorial strategies. 424 00:56:15,790 --> 00:56:20,350 And this approach has been condoned by the Court of Appeal, 425 00:56:21,940 --> 00:56:28,839 which suggests that in in this decision that it's difficult to foresee circumstances in which there might 426 00:56:28,840 --> 00:56:36,370 have been a case to answer for joint enterprise before Joji and then might no longer be after Georgie. 427 00:56:36,890 --> 00:56:42,310 All right, so singing for us is the same evidential strategies. 428 00:56:42,310 --> 00:56:47,740 The same prosecutorial strategies can be used before and after the new case. 429 00:56:48,430 --> 00:56:51,460 What changes is mainly the articulation of the mens rea. 430 00:56:52,500 --> 00:57:03,250 Right. And another interesting aspect of the this expansion of the law of manslaughter or this this hostility around joint enterprise, 431 00:57:03,250 --> 00:57:04,540 which I only briefly mention, 432 00:57:04,540 --> 00:57:16,150 though, because I need to wrap up, is that interestingly, this decision in Georgia could be said to have expanded the law of manslaughter. 433 00:57:18,100 --> 00:57:28,209 And this is a technical point in the sense that before in the old doctrine of joint enterprise, although it was said, 434 00:57:28,210 --> 00:57:35,910 it was clearly said that someone could be held liable for murder, for merely foreseeing that that murder might take place by someone, 435 00:57:35,920 --> 00:57:43,959 could use cause to try to relieve themselves of liability by using this idea of fundamental departure that the crime, 436 00:57:43,960 --> 00:57:48,340 the murder was a fundamental departure from the common purpose of the joint enterprise. 437 00:57:48,670 --> 00:57:52,390 And one of the practical ways in which it was proven is that the defendant could 438 00:57:53,620 --> 00:57:58,390 sufficiently establish that they did not know that the principal was carrying a knife. 439 00:57:58,630 --> 00:58:07,720 Let's say the if they did not know the principal had the lethal weapon, then they could be said to not have foreseen that crime, 440 00:58:07,720 --> 00:58:11,440 because the crime was a fundamental departure from the joint enterprise. 441 00:58:11,740 --> 00:58:18,790 And interestingly, in those cases, the old law seemed to suggest that these defendants should be should not be held liable for the death. 442 00:58:20,110 --> 00:58:23,240 So it was murder or no liability. 443 00:58:23,470 --> 00:58:29,590 If there was fundamental departure and the Supreme Court in Georgia was very clear that, well, 444 00:58:29,590 --> 00:58:37,750 one problem with tort law is that we seem to have forgotten that if for some reason a defendant in this case cannot be held liable for murder, 445 00:58:37,990 --> 00:58:41,140 they can still be held liable for manslaughter. Right. 446 00:58:41,560 --> 00:58:48,910 So even though the Supreme Court said fundamental departure is off, we no longer have this rule. 447 00:58:48,940 --> 00:58:55,870 After Georgia, we have something as overwhelming super meaning incident. 448 00:58:55,880 --> 00:59:05,020 So that just wanted to make the idea more complicated to make sure that this fundamental department is to be a really fundamental departure. 449 00:59:05,380 --> 00:59:05,690 Right. 450 00:59:07,540 --> 00:59:14,590 So but even so, they so even with this real fundamental departure, it's fine because such defendants will still be held liable for manslaughter. 451 00:59:15,040 --> 00:59:24,060 That's fine. So not only this decision did very little to reduce the scope of criminalisation for murder. 452 00:59:24,640 --> 00:59:29,080 It has also increased the scope of criminalisation for manslaughter. 453 00:59:29,930 --> 00:59:40,060 So potentially, people who in the old law might not have been held liable for anything will now be held liable for a very serious criminal offence, 454 00:59:41,050 --> 00:59:45,580 which carries a potential penalty of life imprisonment. 455 00:59:46,810 --> 00:59:54,670 All right. So I would suggest that it's clear hostility exemplified through this decision as well. 456 00:59:56,200 --> 01:00:08,830 So to conclude, just some broad reflections tried to argue that the law is constrained, the condition, but its fundamental ambivalence. 457 01:00:09,670 --> 01:00:17,560 And this ambivalence can be seen as expressed through the subject of joint enterprise, and especially after Georgia. 458 01:00:18,580 --> 01:00:28,570 We can see that there is an effort to make it responsible reform, to make the criminalisation as upheld by principles of autonomy and responsibility, 459 01:00:28,810 --> 01:00:33,850 however dangerous in substance, still fundamentally dangerous in substance. 460 01:00:35,440 --> 01:00:40,360 The fact that joint enterprise is only one example of this construction of dangerous belonging also 461 01:00:40,360 --> 01:00:48,099 reinforces to me this idea that we should place little hope that this kind of judicial reform can, 462 01:00:48,100 --> 01:00:57,850 in fact, in any significant way change these problems around the criminal law. 463 01:00:58,990 --> 01:01:08,290 Because as long as the law continues to preserve structurally violent conditions, it will remain permeated and driven by hostility. 464 01:01:08,800 --> 01:01:18,070 So as long as the law, especially the criminal law, inhabits this very problematic space, it will still need its barbarians. 465 01:01:18,910 --> 01:01:27,460 It cannot do away with its forbearance because its forbearance are, unfortunately, some kind of a solution to these issues. 466 01:01:29,020 --> 01:01:29,410 Thank you.