4 Should the joint enterprise doctrine
be enshrined in statute?
34. The complicated nature of the law on secondary
liability as a whole was condemned in the following terms by Professor
Andrew Ashworth, Professor of Law at Oxford University:
…[the law is] replete with uncertainties and
conflict. It betrays the worst features of the common law: what
some would regard as flexibility appears here as a succession
of opportunistic decisions by the courts, often extending the
law, and resulting in a body of jurisprudence that has little
coherence.[59]
35. Witnesses were almost unanimous in seeing a legislative
solution as the right approach. Professor Jeremy Horder agreed
that legislation was needed noting that the President of the Supreme
Court had said "that he thought there was certainly a need
for legislation to address the problem."[60]
Professor David Ormerod told us: "The case for legislative
reform seems overwhelming."[61]
Professor Graham Virgo told us that developments in the law had
led to him supporting parliamentary intervention:
Although at one stage I advocated in print that the
law on joint enterprise was broadly satisfactory and clarification
should be left to the courts, my view now is that the common law
doctrine has become so confused, both as to its ambit and interpretation,
that statutory reform is the only solution.[62]
36. The
lack of clarity over the common law doctrine on joint enterprise
is unacceptable for such an important aspect of the criminal law.
We therefore recommend that it be enshrined in legislation. We
do not make this recommendation lightly. We fully appreciate the
pressures on the parliamentary timetable but the evidence we have
heard on joint enterprise has convinced us that legislative reform
is required.
How should the Government begin
the process of statutory reform?
37. In our terms of reference we focused specifically
on whether the proposals in Participating in Crime, the
Law Commission's report from 2007, should be implemented. We have
heard some criticisms of them. Tim Moloney QC and Simon Natas
condemned the Law Commission's retention of the Chan Wing-siu
principle, which they see as opening the door to potential miscarriages
of justice:
In our experience, prosecutions for murder on the
basis of joint enterprise have become more common in recent years
and are increasingly focussed on evidence of association or alleged
gang membership. There is increasing potential for cases to be
left to juries largely on the basis of evidence of association
between defendants, a trend which we believe is directly related
to the Chan Wing-siu principle.[63]
38. Professor Jeremy Horder, Criminal Law Commissioner
in 2007, told us that he believed the retention of the principle
was sound because it was needed to ensure convictions of guilty
parties: "It could be, for example, that I know perfectly
well that you are going to do it and I carry on none the less,
and that is enough to make me liable, even though I did not intend
it."[64]
39. The Director of Public Prosecutions had some
concerns about technical aspects of the Law Commission's proposed
draft bill: "the Law Commission's recommendations made at
the time were somewhat complicated and might not achieve their
stated aim owing to the lack of clarity around some of the wording
used."[65] Professor
David Ormerod, Criminal Law Commissioner, at the Law Commission,
told us that there had also been some movement in the case law
since the Commission's report in 2007, which it would be helpful
to consider before any statute on complicity was passed.
40. Professor Lee Bridges suggested that the Law
Commission's proposals were defective in that they did not make
it clear that mere association was not sufficient to incur criminal
liability.[66]
41. As noted above, the Ministry of Justice said
in written evidence that there was no prospect of the introduction
of legislation on complicity in this Parliament. Crispin Blunt
MP, Parliamentary Under-Secretary of State for the Ministry of
Justice, repeated that evidence when he appeared before us:
We said to the Law Commission that there is no prospect
of addressing [the law on complicity] in the course of this Parliament.
Listening to the evidence that you have just taken on changes
in the area, if we were going to proceed through a Law Commission
review process, we wouldn't simply look at the issue in isolation.
We would obviously have to look at the law of murder. Again, with
that review, we have made it clear that there is no prospect of
doing that in the course of this Parliament.[67]
42. We
fully appreciate that the Government has limited resources for
developing new legislation. We therefore recommend that the Government
consult on the Law Commission's proposals in its report Participating
in Crime. We acknowledge the issues raised by our witnesses
with those proposals but believe they form an excellent starting
point for the Government. Even with the caveats noted above, the
Law Commission's report remains a thoughtful and detailed review
of the law on complicity which allows the Government to proceed
directly to a consultation.
43. While we
have not looked at the wider issue of reform of the law on homicide,
we believe that expecting reform of the joint enterprise doctrine
could be part of a wider review of homicide law is an unrealistic
approach. Reforming the law on murder will always be a high risk
strategy for any Government and it is our view that it is very
unlikely to happen in the near future. Legislative clarification
of the law on joint enterprise should not have to wait for a Government
to embark on wider and potentially controversial changes to the
law on homicide.
59 Principles of Criminal Law, Ashworth (4th
ed 2003) p. 441 Back
60
Q 111 Back
61
Ev 43 Back
62
Ev w10 Back
63
Ev w6 Back
64
Q 116 Back
65
Ev 36 Back
66
Ev w16 Back
67
Q 138 Back
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