Joint enterprise is a form of secondary liability whereby a person who agrees to commit a crime with another becomes liable for all criminal acts committed by the other person (the principal offender) in the course of their joint criminal venture. It is a common law doctrine, which means it has been developed by the courts over the years. Our primary recommendation is that the Ministry of Justice should take immediate steps to bring forward legislation in this area. We believe the problems to be sufficiently acute, however, that we also recommend the Director of Public Prosecutions issue urgent guidance on the use of the doctrine when charging. In particular, we would welcome guidance on the relationship between association and complicity, which is of vital importance in gang-related violence and homicides.
We were surprised to learn in the course of this inquiry that no record is made of the number of people charged under joint enterprise every year, or the outcomes of those cases. Given the evidence we heard that the doctrine is being applied inconsistently, together with the high number of cases involving joint enterprise being heard in the Court of Appeal, we would have expected that such data would have been collated to ascertain a true picture of the number of charges, convictions and appeals involving the joint enterprise doctrine. We have recommended such data be collated in future.
Having examined the law in this area, and heard from witnesses who have recent experience of the operation of the doctrine, both as the victims of crime and as defendants' representatives, we have concluded that joint enterprise should be enshrined in statute to ensure clarity for all involved in the criminal justice system. While we recognise that there are particular problems with the operation of the joint enterprise doctrine and murder, we feel strongly that reform in this area should not have to wait for a wider review of the law on homicide.