2 The Crown Prosecution Service's
guidance
The purpose and content of the
guidance
8. In its December 2012 guidance, the Crown Prosecution
Service identifies three types of joint enterprise -
· where
two or more people join in committing a single crime in circumstances
where they are, in effect, all joint principals
· where
D assists or encourages P to commit a single crime
· where
P and D participate together in one crime and in the course of
it P commits a second crime which D had foreseen he might commit.[9]
9. Dr Matthew Dyson, from the Faculty of Law at the
University of Cambridge, argued that it was unhelpful for the
guidance to classify all these types of offence as joint enterprise,
as this elided the distinction between traditional or basic secondary
liability, and joint enterprise proper.[10]
Professor Graham Virgo from the University of Cambridge also criticised
conflation of joint enterprise with other secondary liability
cases.[11] The focus
of our previous and current inquiries, and the continuing public
controversy and debate, is on the third type of joint enterprise
referred to in the CPS guidance, which is sometimes described
as "parasitic liability" or "parasitic accessory
liability". A hypothetical example provided in the CPS guidance
is as follows:
D and P carry out a burglary (offence A). P acts
as principal, entering the premises and stealing. D assists or
encourages P by acting as a lookout. However, In the course of
the burglary, P kills householder V, with intent to kill or do
really serious harm. P is liable for murder of V as a principal.
D may also be liable for murder, as a secondary party, if D foresaw
when participating in the burglary with P, that P might commit
a criminal act (use unlawful force) with intent to kill or do
really serious bodily harm: Chan Wing-Siu v R [1985] A.C.
168, PC; R v Powell, R v English [1999] 1 A.C. 1, HL; R
v Rahman [2008] UKHL 45; R v Yemoh [2009] EWCA Crim
930; R v Mendez and Thompson [2010] EWCA Crim 516.[12]
This is the kind of offence which we mean in this
Report, and which we meant in our previous Report, when we refer
to joint enterprise. It is worth noting however that it appears
that a high proportion of joint enterprise cases involve more
than two participants and concern criminal activities associated
with groups or gangs of young people.
10. Among other things, the CPS guidance considers
the two main defences which may be advanced by a secondary party
against charges of joint enterprise: that the offence committed
by the principal is "fundamentally different" from anything
foreseen by the secondary party; and that the secondary party
had withdrawn from the joint enterprise before the offence was
committed. The guidance explains the application of the evidential
and public interest stages of the Full Code Test in joint enterprise
cases, and contains a number of useful provisions setting out
matters which prosecutors should take into account in deciding
on whether to bring charges in such cases, and, if so, what charges
to bring. At various points the guidance emphasises the importance
of the exercise of discrimination and proportionality by prosecutors
in matching charges to available evidence about the degree of
involvement or culpability of secondary participants. Extended
consideration is given to charging in cases of group assaults
which lead to fatalities, when weapons are involved and when there
are no weapons.
11. The Director of Public Prosecutions described
the purpose of the guidance as follows:
the guidance explains for prosecutors, and goes
into some detail, as you will see from the guidance, what the
law is on the doctrine of joint enterprise. It is there in one
place; it is easily accessible and it has some of the case references.
It goes through the different scenarios, but of course the aim
of the guidance is to help prosecutors in their role, and to be
able to help and guide them around the thought processes they
should have when making decisions which are impacted by joint
enterprise, and, therefore, improve the way in which they operate.
That is not to say that we did not think that they were operating
it properly to begin with, but we think that the guidance helps
them in relation to their decision making, and it should improve
consistency as well, of course.[13]
12. With some caveats, most of our witnesses considered
that the guidance provided a reasonably reliable and accurate
explanation of the current state of the law surrounding the doctrine
of joint enterprise.[14]
Unsurprisingly, those with fundamental objections to the doctrine
did not see the promulgation of guidance as an answer to those
objections. JENGbA saw the content of the guidance as confirming
the "ability to convict people on very tenuous evidence,
with no element of intention needed".[15]
13. Our view is that the CPS's guidance contains
a comprehensive and detailed account of the law as it stands.
While it can evidently be contested in certain respects, it goes
a long way to clarifying the complex state of the accrued case
law bearing upon joint enterprise, and in setting out and exposing
to public view the internal processes of decision-making which
should be followed by prosecutors in cases in which the joint
enterprise doctrine is relevant.
The impact of the guidance
14. Publication of the CPS's guidance represents
a step forward, but the extent to which the guidance has improved
prosecutorial practice in the way that we envisaged it might do,
by reducing levels of overcharging, is open to question. One refrain
in the evidence we received was that there was no sign of any
change having taken place; another theme was that the available
information on the use of joint enterprise was inadequate to make
any assessment. Sam Stein QC and Andrew Jefferies QC, in their
joint submission, asserted that the guidance had had no impact
whatsoever, and that it had "played no part in pre-trial
discussions or submissions to the CPS about the decision-making
process used in coming to a decision to prosecute any individual
defendant in any case in which we have been involved."[16]
Andrea Edwards, whose son was convicted of joint enterprise murder
in May 2013, told us that "bar a few exceptions mainly in
courts outside of London the guidelines have not been followed".[17]
15. We asked the Director of Public Prosecutions
what evidence she could provide to demonstrate that the guidance
was being followed. In response she provided five anonymised case
studies, the first four of which deal with cases in which charging
decisions were brought after the December 2012 guidance was published,
with decisions in the fifth example having taken place before
that date.[18] It is
surprising, and perhaps symptomatic of the complexity of this
whole area of law, that the first three cases do not appear to
involve joint enterprise in the sense we are considering it in
this inquiry. There is evidence of a careful approach having been
adopted by prosecutors, in accordance with the guidance, in deciding
on charges to bring against participants in the fourth case, whereas
in the fifth case the same charges, of murder, conspiracy to commit
grievous bodily harm, and violent disorder, were brought against
all 20 people eventually charged out of 22 arrested.
16. No record is kept of numbers of prosecutions
brought, or convictions made, under the joint enterprise doctrine.
When we agreed with the Crown Prosecution Service that they should
provide statistical information, which eventually comprised information
on murder and manslaughter cases involving two or more defendants
in each of the years 2012 and 2013, it was our expectation that
this would enable some progress to be made in drawing conclusions
about the extent of use of joint enterprise and on any change
arising from the publication of the CPS guidance. In fact it is
not possible, on the basis of this information, to arrive at any
but the most tentative conclusions. The CPS itself cautiously
argued that the increase in the number of defendants charged only
with a lesser offence, from 67 in 2012 to 95 in 2013, taken together
with other factors, might "indicate that prosecutors are
properly applying the principles set out in the guidance by selecting
charges that properly reflect the role played by the defendant,
and which allow the jury to convict the defendant of a lesser
offence, where appropriate".[19]
17. As part of its research into joint enterprise,
The Bureau of Investigative Journalism submitted freedom of information
requests to the CPS for numbers of successful and unsuccessful
homicide prosecutions involving four or more defendants between
2005 and 2013. Such cases may be a better proxy for joint enterprise
in the sense we are considering it in this report than the figures
for cases involving two or more defendants provided to us by the
CPS. The figures obtained by TBIJ show that the proportion of
homicide prosecutions occurring in cases with four or more defendants
has remained fairly stable over the last nine years, while the
number of prosecutions for all homicides and in cases involving
four or more defendants has declined since a peak in 2008. They
also show that while the total number of homicide prosecutions
in cases involving four or more defendants dropped from 182 in
2012 to 165 in 2013, the number of convictions increased from
120 to 126. TBIJ have also obtained and published information
about the number and proportion of Criminal Court of Appeal rulings
involving joint enterprise in 2008, 2012 and 2013, and their report
also contains the results of a survey they conducted with legal
practitioners about their involvement in joint enterprise cases
and their opinions on the subject.[20]
18. Some other important new information about the
use of joint enterprise within the criminal justice system and
its impact has been made available to us in the context of this
inquiry. The Institute of Criminology at the University of Cambridge
shared with us preliminary results from a study it is conducting
into male prisoners sentenced at a young age to life sentences
with tariffs of 15 years or more.[21]
Although the study was not originally designed to focus on joint
enterprise, the fact that more than half of the study's survey
sample were convicted under joint enterprise has generated some
important information about the impacts of the doctrine, including
the only non-anecdotal response we received to the request which
we made in our terms of reference for information concerning any
disproportionate effect of the use of joint enterprise on certain
communities and ethnic groups (see paragraph 24 below).
19. Other new information has been helpfully provided
by the Criminal Cases Review Commission (CCRC) in response to
some specific questions we put to it in writing about its work
on joint enterprise cases.[22]
The CCRC identified 145 applications made to it since 2004 from
people convicted under the doctrine, although it considers there
are likely to have been many more such applications which cannot
be identified from its records as joint enterprise: in total during
this period it received 1,536 applications relating to murder
convictions. Of the 145 identifiable joint enterprise-related
applications, 109 were from principal parties and 36 from secondary
parties. Sixty per cent of the applications related to murder
convictions. The CCRC has made seven referrals on conviction and
none in relation to sentence in joint enterprise cases since 2004.
Only one conviction was quashed, compared to an average of 70.4%
of all cases referred to the Court of Appeal in which a conviction
is quashed, or a sentence adjusted. The CCRC identified three
primary obstacles facing applicants to it in joint enterprise
cases:
· the
difficulty of assessing "new" evidence in light of conflicting
testimonies from various defendants
· the
difficulty of identifying and obtaining credible new evidence
impacting on mens rea sufficient to raise a real possibility
that the Court of Appeal would quash a conviction, given that
the Commission cannot refer on the basis of an applicant restating
evidence given at their trial to the effect that they did not
foresee the relevant offence being committed
· the
additional problem in relation to finding fresh mens rea evidence
that often joint enterprise cases arise on the spur of the moment
and the relevant state of mind may be fleeting.[23]
20. There has been some improvement in publicly-available
information about the nature and extent of use of joint enterprise,
but it remains patchy and ad hoc. The Crown Prosecution
Service needed to undertake retrospective manual examination of
files to provide us with data about joint enterprise murder and
manslaughter cases in 2012 and 2013, and there does not appear
to be any intention on its part to continue doing so in 2014 and
subsequent years.[24]
The Director of Public Prosecutions told us that crime statistics
were the responsibility of the Ministry of Justice.[25]
When we asked her whether she saw value in the collection of more
detailed and regular statistics on joint enterprise, she replied:
If there were concerns about particular issues,
there is obviously value either in some sort of research project
or in having some sort of regular data that can satisfy questions
that are being asked. You have to weigh that against how easy
or not it is to compile those types of figures, and I do not know.[26]
We also pressed Mr Penning, the Minister, on this
point. He said
One of the things I will do ….. is to find
out what we can produce and how we can produce it, and the cost
implications of doing that, and the workload involved. …..
There will be huge cost implications of gathering that information
in that way. Let's be honest about that. It has significant cost
implications.[27]
We have received no further indication from the Ministry
of the cost implications, and we do not consider that they will
be prohibitive if a new recording system is introduced.
21. Given the degree of concern which exists about
the operation of joint enterprise, particularly in murder cases,
which we explore further in the next Chapter of this Report, we
do not think it is acceptable for the main authorities in the
criminal justice system to give such limited attention and priority
to the recording and collation of fundamental information about
the extent and nature of use of the doctrine. It is not surprising
that it is time-consuming and costly to retrieve information from
individual case management files after the event, even though
it is clearly possible to do so. If joint enterprise cases were
properly identified and recorded at the outset then production
of information about them would subsequently be much easier. We
believe that it is the responsibility of the Ministry of Justice
and the other authorities within the criminal justice system to
introduce arrangements for the compilation and publication of
information which will ensure a sound factual basis for the public
debate on joint enterprise.
22. We recommend that the 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. We further recommend that the Crown Prosecution
Service undertake research to monitor and analyse the extent to
which prosecutors are following the guidance in relation to cases
where charges are brought under the joint enterprise doctrine.
This will require prosecutors to record their reasons for charging
decisions in joint enterprise cases, in so far as they do not
already do so.
9 CPS Guidance On: Joint Enterprise Charging Decisions, December 2012,
para 10 Back
10
JEF 07 Back
11
JEF 11
Back
12
CPS Guidance On: Joint Enterprise Charging Decisions, December 2012,
para 10 Back
13
Q 66 Back
14
Cf. JEF 08 Back
15
JEF 10 Back
16
JEF 08 Back
17
JEF 13
Back
18
JEF 21 Back
19
JEF 09 Back
20
Joint Enterprise: an investigation into the legal doctrine of joint enterprise in criminal convictions, The Bureau of Investigative Journalism, April 2014,
Appendices C and D Back
21
JEF 14 Back
22
JEF 18 Back
23
JEF 18 Back
24
Q 72 Back
25
Q 80 Back
26
Q 81 Back
27
Q 129 Back
|
