Joint Enterprise - Justice Committee Contents

Conclusions and recommendations

1.  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. (Paragraph 25)

2.   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. (Paragraph 32)

3.  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. (Paragraph 33)

4.  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. (Paragraph 36)

5.  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. (Paragraph 42)

6.  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. (Paragraph 43)

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Prepared 17 January 2012