Joint Enterprise - Justice Committee Contents

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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Prepared 17 January 2012