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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