Joint Enterprise Liability as Omissions

Abstract

This article argues that joint enterprise liability should be conceptualised under the doctrine of omissions as conceived in the recent case of Evans. As such, liability under joint enterprise is to be triggered when one is under a duty to rectify a dangerous situation and eventually fails to prevent a prohibited outcome from occurring. This analysis would overcome the two fundamental difficulties pervading the law on joint enterprise: (i) the overly harsh mens rea requirement as the law of joint enterprise currently stands, and (ii) the sheer arbitrariness of the fundamental difference rule. The authors suggest that in view of legislative inaction, the judiciary should take an active role to extend the reasoning in R v Evans so as to cover joint enterprise cases.