Appendix: Government Response
Letter dated 27 January 2015 from Rt Hon Chris
Grayling MP, Lord Chancellor and Secretary of State for Justice
to Rt Hon Sir Alan Beith MP, Chair, Justice Committee.
THE LAW ON JOINT ENTERPRISE
I am writing in response to the report on joint enterprise
that you published on 10 December 2014 in which you recommended
Ministry of Justice, in co-operation with the Crown Prosecution
Service and Her Majesty's Courts and Tribunals Service as necessary,
establish a system which records homicide cases brought under
the joint enterprise doctrine. Information recorded should enable
regular statistics on joint enterprise to be produced which would
include: the number of cases in which any joint enterprise prosecutions
are brought for murder and manslaughter; the number of defendants
in each case charged as primary and secondary participants; the
number charged with each offence and with lesser offences; the
number of prosecutions which result in convictions for each offence
as a primary or secondary offender; the number of appeals brought
against conviction and/or sentence and the number of those which
are successful; and a breakdown by age, ethnicity and gender of
those prosecuted. We also recommend that the Ministry of Justice
commission research to produce this information retrospectively
from case management files for the last five years, although we
recognize that there will be greater cost implications in this
course of action.
the Government should request the Law Commission to undertake
an urgent review of the law of joint enterprise in murder cases.
This review should consider the appropriateness of the threshold
of foresight in the establishment of culpability of secondary
participants in joint enterprise cases. It should also consider
the proposition that in joint enterprise murder cases it should
not be possible to charge with murder secondary participants who
did not encourage or assist the perpetration of the murder, who
should instead be charged with manslaughter or another lesser
offence. The Law Commission should be asked to present proposals
for the codification in statute of the law of joint enterprise,
together with any proposed changes arising from its review. We
consider that the Law Commission should be asked to report on
these matters by the end of 2015.
The Minister of State for Policing, Criminal Justice
and Victims, Mike Penning, explained during oral evidence that
he would explore the possibility of collecting data in joint enterprise
cases relating to homicide on a routine basis. I am grateful to
the CPS for the work they did in collating data on homicide prosecutions
in 2012 and 2013 involving two or more defendants. In a proportion
of those cases, of course, the defendants may have been acting
as joint principals so the aspect of the joint enterprise doctrine
which is of greatest concern to the Committee, namely the operation
of the so-called Chan Wing-siu (or "foresight") principle,
would not have been a relevant factor in the prosecution.
As the Committee identifies, any new system would
ideally be capable of discerning which cases relied on the use
of the foresight principle. These cases would have to be identified
by prosecutors so that officials in Her Majesty's Courts and Tribunals
Service (HMCTS) could record them accurately on the Court Proceedings
Database. Some joint enterprise cases involve many defendants,
for example the murder of Sofyen Belamouadden in Victoria Station,
and it may take several months or even years for all the defendants
to be tried and sentenced. This makes data collection and subsequent
analysis more difficult and further discussions between my officials
and the Crown Prosecution Service are needed before any new system
can be put in place. I have asked my officials to progress this
work and we will revert to you once those discussions are complete.
We cannot, however, commit resources to reviewing historic case
files and I am not convinced that such an exercise would have
any real practical benefit.
Turning to your recommendation on the law itself,
I have carefully considered the evidence that has been submitted
to the Committee. It is worth emphasising that the law on joint
enterprise only applies when a group of people are already engaged
in criminal activity (sometimes very serious criminal activity)
and in the course of that activity another offence is committed.
The law means that all those who foresaw that the 'collateral'
offence might be committed in the course of the original criminal
activity can be prosecuted for that offence. The law certainly
does not criminalise innocent bystanders as has been portrayed
in some sections of the media.
I recognise that families of convicted offenders
and academics believe that the 'foresight' principle is too harsh,
particularly where the conviction is for murder and a mandatory
life sentence is imposed. However, there are many law-abiding
citizens and families of victims who disagree and who may be concerned
if the changes suggested by academics meant that certain offenders
could no longer be prosecuted for murder.
The question of whether the law should be reviewed
and clarified in statute will need to be considered carefully
by Ministers in the next Parliament. It would not be appropriate
for me to ask the Law Commission to launch a review prior to the
General Election, as this would effectively tie incoming Ministers
to a particular course of action. The scope of any review and
who should lead it are issues that should rightly be left to new