Appendix: Government Response
I am grateful to the Justice Committee for looking
at this important area of law and have now had time to consider
its recommendations in detail. The Committee's main recommendations
were that:
- The Government should consult
on the Law Commission's Report on Participating in Crime (which
covers the common law on joint enterprise) as a matter of urgency,
with a view to enshrining the joint enterprise doctrine in statute.
- The Crown Prosecution Service should publish
new guidance for prosecutors on dealing with joint enterprise
cases
- Data should be collected on the number of people
charged under joint enterprise law and outcomes of those cases,
including whether they were successfully appealed.
With regard to the third recommendation above, you
will be aware that the Crown Prosecution Service has already indicated
that it will consult my department on the best way forward for
collating statistics around cases involving joint enterprise.
With regard to the second recommendation, I have noted the commitment
made by the Director of Public Prosecutions to publish new guidelines
for prosecutors on handling joint enterprise cases. This will
include guidance on the proper threshold at which association
with an offender potentially becomes evidence of criminality.
I look forward to viewing the draft guidelines in due course.
I think it would make sense for the impact of new
prosecutors' guidelines to be assessed before any decisions are
taken about consulting on new legislation. As Crispin Blunt made
clear in his evidence to you, we remain to be convinced about
the need for law reform. If two or more people embark on an agreed
plan to commit an offence, they will be liable for any offences
they foresaw might be committed by the other members of the group
when putting that plan into effect. They will not be liable for
offences they could not have foreseen would be committed by others
(the 'fundamental difference rule'). In my view, these are sound
legal principles and I am keen to avoid consulting on measures
that could weaken the law in this area or undermine the Government's
efforts to tackle crimes committed by gangs.
I have noted the Committee's recommendation that
the Law Commission's report on 'Participating in Crime' should
form the basis of any consultation on this issue. As Crispin Blunt
explained during the Committee's oral evidence session, that report
goes much wider and covers not only joint enterprise but the law
on secondary liability generally. Although the report suggests
some improvements to the way the fundamental difference rule as
regards joint enterprise operates, it does not propose a relaxation
of the overarching principles which apply in joint enterprise
cases. I am not therefore persuaded that implementing the recommendations
as regards joint enterprise would alter the way the courts deal
with these cases. Prosecutors would still have to consider all
the evidence about a defendant's alleged involvement in a joint
criminal enterprise before making a charging decision. And the
jury would still have to weigh up all the facts about a defendant's
alleged involvement in a particular enterprise prior to any decision
to convict.
While I accept there are some aspects of the law
on secondary liability which might benefit from clarification
in the future and I have said as much to the Lord Justice
Munbythis would be a major piece of work which we do not
intend to take forward in the life time of this Parliament. Although
you suggest that reforms on secondary liability should be taken
forward independently of reform of the murder laws, I am not convinced
that the two issues are easy to disentangle. At this stage, therefore,
we will not be accepting the Committee's recommendations in relation
to consulting on new legislation.
The Rt Hon Kenneth Clarke QC MP
Lord Chancellor and Secretary of State for Justice
13 March 2012
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