Joint Enterprise - Justice Committee Contents

3  The use of joint enterprise

16. Witnesses representing offenders who claim they have been wrongly convicted, those who represent people who have lost family members through gang attacks and others told us that they believed the current law on joint enterprise was leading to miscarriages of justice. The Prison Reform Trust (PRT) told us that:

The Prison Reform Trust is concerned that joint enterprise may be used disproportionately in cases involving children and young adults and can act as a drag-net, bringing individuals and groups into the criminal justice system who do not necessarily need to be there. Our visits to young offender institutions have produced anecdotal evidence that this is the case.[32]

17. Gloria Morrison, from the campaigning group JENGbA (Joint Enterprise Not Guilty By Association) told us that the complexity of the law presented serious difficulties for juries: "The juries often come back to the judge to say, "We don't want to convict this person." They are very confused. They can see who is culpable and they do not want to do it. The judge will say, 'No; it's a joint enterprise. You have to convict or acquit.' "[33] The complexity of the law can be overwhelming; Ms Morrison told us that: "In Laura Mitchell's case [the jury received] a 49-page route to verdict."[34] Tim Moloney QC, Simon Natas,[35] PRT[36] and JENGbA[37] all thought the use of joint enterprise was increasing. JENGbA submitted some evidence to us on this issue but accepted that in the absence of official records it must remain partial.

18. Jean Taylor of Families Fighting for Justice, a campaign group seeking to ensure prosecutions in cases of unlawful killing, told us that the lack of clarity over joint enterprise led to it being inconsistently applied. In some cases, she told us people are "taken in just for standing by and watching"[38] while in other cases "a group or gang has been allowed to walk free...they have not been charged with joint enterprise."[39]

19. There is little or no evidence, beyond the anecdotal, on the use of joint enterprise in England and Wales against which the above allegations can be tested. While, as the Director of Public Prosecutions told us, joint enterprise "is available for pretty well all offences, unless there is a statutory reason it cannot be used"[40] no statistics are collected on its use or whether its use is increasing. The Director of Public Prosecutions told that, in his experience, "It is very commonly used for violence, affray, burglary and those sorts of offences. They would be the most common ones..."[41]

20. Although there are no statistics on the use of joint enterprise there is evidence to suggest that the doctrine is causing some confusion in the courts. Joint enterprise has been the subject of a high number of appeals in recent years, as Professor David Ormerod, Criminal Law Commissioner at the Law Commission, observed:

Despite the experience at the bench and bar in these cases, and the now commonplace use of written directions and routes to verdict for the jury, the steady flow of appeals continues. In 2010 there were eight Court of Appeal decisions on this topic. The outcomes of the trials and indeed of the appeals are often perceived as illogical or unfair.[42]

21. During the course of this inquiry the Supreme Court was also required to consider an aspect of the law on joint enterprise. In R v Gnango the defendant was engaged in a gunfight with another man across a car park in South London. Tragically, a young woman on her way home from work was killed by a bullet fired from the gun of the other man. The question for the court was whether, by participating in the gunfight, the defendant was guilty of engaging in a joint enterprise with the other gunman and so guilty of murder, or whether he was guilty solely of attempted murder. The Supreme Court found that the definition of joint enterprise could include a 'shoot-out' between two people where each was intending to harm the other.[43] This case illustrates the difficulties that can arise for courts and juries considering the cases based on joint enterprise.

22. The Director of Public Prosecutions, while appreciating that we may have concerns that there were no data on the use of joint enterprise, told us:

I think the reason there are not specific statistics is that at the moment the prosecutor can, and arguably should, charge an individual both as a principal and as a secondary party in the same indictment. There is an argument that as a matter of law you have to do that. At the outset, the advantage for the prosecutor is being able to charge in that broad and, if you like, alternative way. The only way to collect statistics would be to try to work out after the event, looking at jury verdicts, whether they had in fact convicted on the basis of the principal offence or secondary liability. I accept that can probably be done, but it is not something we have done up to now. Therefore, unlike other offences where we are able to put a flag in the system when an offence is charged and then marry it up to a conviction, that is simply not possible under our current arrangements. I think that is why you do not have statistics...[44]

23. Crispin Blunt MP, Parliamentary Under Secretary of State at the Ministry of Justice and the Minister with responsibility for the criminal law, agreed with the DPP and told us that the collection of statistics would be resource intensive:

You would have to go back to the cases individually and manually to do that. If there were an immediate prospect of an issue to address—I understand the scale of how often joint enterprise is used—we would, obviously, have to consider whether to devote that scale of resources to it, but I would be misleading you if I suggested that that were an immediate prospect.[45]

24. Mr Blunt accepted that there were some problems: "it comes back to the issue of availability of resources. If it is possible to get a better fix on this without it costing an arm and a leg in terms of either people or money, it is an area where we could do with better data."[46]

25. We were surprised to learn in the course of this inquiry that the number of people charged as secondary participants in a joint enterprise is unknown. This means it is difficult to judge whether any, or all, of the criticisms on the use of joint enterprise that we heard from several witnesses are well-founded. What is clear is that applying the law on joint enterprise presents the courts with such difficulties that cases are regularly reaching the Court of Appeal, and even the Supreme Court. We consider whether the law should be clarified through being enshrined in legislation below but it is evident that any statute would inevitably take some time to come into effect. We therefore recommend that data on the number of joint enterprise cases, and the number of appeals, be collated. This will allow the Director of Public Prosecutions to consider how best to alleviate problems, whether through guidance, training or otherwise. We look forward to studying the data as soon as it is available.

Is there a particular problem with the law and use of joint enterprise in cases of murder?

26. A number of witnesses expressed particular concerns about the operation of joint enterprise and murder. A conviction for murder carries with it a mandatory life sentence. Despite recommendations from the Law Commission[47] and others[48] no government has produced a bill on the abolition of the mandatory life sentence or on creating a two or three tier approach in which intending to cause really serious harm is treated differently from premeditated killing. The difficulties over the "parity of culpability" are thrown into particular relief when the court has limited discretion over the length, and no discretion over the type, of sentence.

27. The Committee on the Reform of Joint Enterprise (CRJE), "an ad hoc collection of lawyers, academics and otherwise concerned individuals and groups",[49] told us the operation of joint enterprise and the mens rea for murder contradicted "three fundamental principles" of the criminal law:

First, in the absence of a clear mental element for liability, it imputes intention or foresight on the basis of the unconnected actions or agreement of D2 with D1. Second, there is a perilous slope involved in guiding juries on joint enterprise. Although the strict letter of the law does require D2 to know or subjectively foresee the elements of the ultimate offence committed, the reality is different. The courts' and prosecutors' readiness to allow a jury to find that D2 foresaw a risk that a weapon would be used on the basis of his knowledge of its presence detracts from the subjective nature of the mental element. Third, there being no connection required to be proven between D2 and the victim's death, D2's guilt is constructed from a wide range of precarious bases—essentially his association with the person who actually committed the murder.[50]

This results, the CRJE concluded, with "the labelling of individuals who—albeit not entirely innocent—cannot properly be called 'murderers'."[51]

28. The Director of Public Prosecutions acknowledged that the imposition of a life sentence when "someone has played a very minor part in a very serious offence" has the potential to appear disproportionate. Juries, the DPP told us, "may feel that it simply does not feel fair to convict someone" in those circumstances.[52] This evidence reflected that drawn to our attention by Professor Lee Bridges, Emeritus Professor at Warwick University, which suggested that public support for the imposition of mandatory life sentences in "typical joint enterprise scenarios" was weak.[53]

Gang-related and group violence

29. Public fears over gang-related and group violence have been heightened in recent years. We heard evidence that the principle behind the doctrine of secondary liability, that everyone involved in a criminal enterprise should be held accountable, may also have a deterrent effect on young people who could become involved with such activity. Jean Taylor, of Families Fighting for Justice, told us that being aware they could be prosecuted for even minor involvement in a crime could have a direct effect on young people's behaviour. Ms Taylor's organisation had sought to raise awareness of the law among young people through the relatives of those who had lost family members talking through the consequences for all involved in gang-related violence:

I strongly believe there are no better people to do that talk. It is no good a police officer getting up there, because they don't like the police; they don't welcome the police. Families go in and do these workshops.[54]

30. We also heard evidence that public policy considerations relating to gang violence, together with a lack of clarity over the ambit of the law, may mean that joint enterprise could lead to over-charging in gang related matters. The Committee on the Reform of Joint Enterprise told us that:

The adverse effect on young people of being charged and put on trial for serious offences for which they are eventually acquitted on the basis of precarious charges, and in respect of which they may spend substantial periods of time remanded in custody is grave and cannot be ignored.[55]

31. The CJRE's evidence reflected similar concerns from both JENGbA and Families Fighting for Justice.[56] Professor Horder agreed, telling us "there is a terrible temptation to charge—I do not say indiscriminately—everyone involved in the gang or who has some association with it."[57] He suggested that "guidelines might do a lot to ameliorate some of the harshness of the law":

if the people involved—the Director of Public Prosecutions, the Attorney-General, and so on—could get together and decide what threshold must be met before it would be appropriate to charge people on that basis, I, for one, would be very relieved. It is there, I think, that there is a real risk of injustice, because it is inevitable that everyone who is arrested in that scenario will say, "It wasn't me. It was the other person." That is also what the perpetrator will be saying, of course. It will be very difficult for a jury to distinguish between the credibility of those claims unless the police and the prosecution exercise—I do not say greater restraint than they are doing, as I am sure that would be controversial—restraint in accordance with principles. That is very important.[58]

32. The law on joint enterprise, and secondary liability more generally, was developed by the courts to ensure that all participants in a criminal enterprise could be held accountable. We welcome evidence to suggest that the deterrent effect intended by the courts can discourage young people, who may be on the periphery of gang-related activity, from becoming involved in criminality. At the same time, the Crown Prosecution Service and the police should have in mind that it is not the purpose of the law of joint enterprise to foster gang mentality or draw people into the criminal justice system inappropriately.

33. Over-charging under joint enterprise will not assist the task of those trying to deter young people from becoming involved in gangs. It may also deter potential witnesses to an offence who fear that they might be charged under joint enterprise if they come forward, impeding the justice process. We recommend that the Director of Public Prosecutions issues guidance on the proper threshold at which association potentially becomes evidence of involvement in crime. Such guidance should deal specifically with murder, although we acknowledge such guidance will not assuage the concerns of some of our witnesses.

32   Ev w14 Back

33   Q 78 Back

34   IbidBack

35   Ev w6 Back

36   Ev w14 Back

37   Ev 27 Back

38   Q 44 Back

39   IbidBack

40   Q 2 Back

41   Q 2 Back

42   Ev 42 Back

43   R v Gnango [2011] UKSC 59 Back

44   Q 2 Back

45   Q 135 Back

46   IbidBack

47   Murder, Manslaughter and Infanticide, Law Commission paper No. 304, November 2006, HC 30 Back

48   For example, the Homicide Review Advisory Group who published its report in November 2011. Back

49   Ev w18 Back

50   Ev w20 Back

51   IbidBack

52   Q 24 Back

53   Ev w2 Back

54   Q 54 Back

55   Ev w20 Back

56   Q 57 Back

57   Ev 27 Back

58   Qq 120-121 Back

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© Parliamentary copyright 2012
Prepared 17 January 2012