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When the law reaches beyond what was done to what was foreseen, proximity can become liability, writes Rebecca Ward, MBA.
The doctrine of joint criminal enterprise sounds like a term reserved for organised syndicates, but its reach is far wider and, at times, far more personal. It is a principle that can transform bystanders into offenders, and moments of silence into acts of participation. For lawyers, it is both a technical instrument and a moral test. For citizens, it is a warning about proximity, perception, and the company we keep.
The definition: Common purpose, shared liability
In Australian law, joint criminal enterprise (JCE), sometimes called common purpose or extended joint enterprise, describes a situation where two or more people act together in an unlawful venture. If, during that venture, one participant commits another crime that was a probable consequence of carrying out the plan, all participants may be held liable, even those who never lifted a hand.
The High Court set the modern framework in McAuliffe v The Queen (1995), reaffirmed in Miller v The Queen (2016). If two people agree to rob a store and one unexpectedly kills the attendant, the other can still be convicted of murder if they foresaw that death or grievous harm might occur in the course of the robbery.
Australia has retained this foresight test. The United Kingdom, by contrast, reversed it in R v Jogee (2016), holding that foresight of what might happen is evidence, but not proof, of intent. In Britain, the law now demands intention; in Australia, possibility still suffices.
The lawyer’s lens: Precision and restraint
For defence lawyers, JCE represents one of the profession’s most delicate frontiers. The task is to separate presence from participation, and knowledge from agreement. They must remind juries that criminal law punishes acts and intentions, not assumptions or proximity. The line between foresight and intent must be drawn clearly, and redrawn often.
A client who knew a co-offender was armed is not automatically a murderer. Knowledge is not consent; fear is not encouragement; and silence is not agreement. These distinctions are not semantic; they are determinative. A defence lawyer’s craft lies in returning the conversation to first principles: Did my client intend for this crime to occur?
For prosecutors, the doctrine is both powerful and perilous. It captures organisers who orchestrate crimes from the sidelines, but risks ensnaring bystanders who merely failed to flee. The ethical prosecutor must ask not only, “Can I prove this?” But “Should I?” The distance between participation and association is often the distance between justice and overreach.
Judges, for their part, must guide juries through that nuance, explaining that foresight of a possibility is enough for liability under current law, but that the standard of proof remains beyond a reasonable doubt. It is a doctrine that tolerates breadth but demands precision.
The citizen’s lens: The company we keep
For citizens, the principle is confronting. It means that standing beside someone who acts unlawfully can carry real legal risk. If you join a friend in an illegal act, however small, and they escalate it, your own liability may escalate with theirs.
The law assumes that adults who willingly participate in an unlawful plan accept the foreseeable risks of that plan. But “foreseeable” is doing a lot of work here. What one person sees as possible, another may never imagine. When juries are asked to decide what someone “must have foreseen,” they are, in truth, being asked to read a stranger’s mind in hindsight.
And hindsight is a persuasive narrator.
Human perception is fallible. In moments of fear or chaos, witnesses mishear, misremember, and misattribute words. A single mistaken phrase, “I heard her say ‘do it’”, can alter a life. Courts know this. They instruct juries to treat such evidence with caution. But the risk remains.
The system’s dilemma
Joint criminal enterprise exists to prevent people from avoiding responsibility by outsourcing violence. It closes the gap between mastermind and executioner, between planner and participant. Yet its breadth makes it blunt. When the doctrine conflates foresight with intent, it risks punishing association rather than action.
Lawyers see this tension daily. The doctrine is essential; without it, group crimes would go unpunished. But it is also dangerous; with it, people can be condemned not for what they did, but for what someone else imagined they understood.
The United Kingdom’s retreat from the foresight test reflects a growing discomfort with that imbalance. Australia, so far, has chosen continuity over reform. The result is a system that still treats foresight of a possibility as enough to sustain a conviction for the gravest of offences.
The lesson for the profession
For lawyers, JCE is a reminder that facts still matter more than fear. It asks practitioners to uphold both precision and restraint; to prosecute where evidence truly supports agreement, and to defend where the evidence shows only proximity or panic.
For citizens, it is a reminder that intent travels with the company. The people beside us can shape not just our choices, but our legal fate.
And for everyone who works in or around the law, it is a reminder of why words, spoken, shouted, or imagined, must never outweigh proof.
The law draws its lines carefully. The difficulty is that human behaviour rarely fits neatly inside them.
Rebecca Ward is an MBA-qualified management consultant with a focus on mental health. She is the managing director of Barristers’ Health, which supports the legal profession through management consulting and psychotherapy. Barristers’ Health was founded in memory of her brother, Steven Ward, LLB.
