The Enemy In-Between: Ambivalence, Hostility, and Joint Enterprise

The Supreme Court’s decision in R v Jogee [2016] presented us with a puzzling paradox: on the one hand, the decision categorically affirmed that the controversial doctrine of joint enterprise, or ‘parasitic accessorial liability’, had unjustly expanded the scope of criminal liability for over 35 years in an unprincipled manner, therefore abolishing it; on the other hand, it stressed with as much confidence that cases judged under the old law would not need to be reviewed, that their decisions could mostly be considered safe. Indeed, to this day, all attempts to appeal against such previous decisions have been dismissed, with the sole exception of Ameen Jogee, who has been retried and reconvicted, albeit of the slightly less serious offence of manslaughter. This paper explores the decision in Jogee in light of the context of joint enterprise, and argues that this area of law expresses and exposes an intrinsic ambivalence in the way the criminal law conceives its subject, caught between responsibility and dangerousness, between (broken) recognition and hostility.

Henrique is an Assistant Professor at the School of Law, University of Warwick. His work lies in the areas of criminal law, punishment and society, and legal, social and political theory. He is the author of The Preventive Turn in Criminal Law (OUP, 2017).

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