4 The doctrine of joint enterprise
44. We referred in the previous Chapter to the
incompleteness of publicly available information about the use
of the joint enterprise doctrine and recommended the introduction
of a much-improved system of recording, compilation and publication
of information, together with retrospective research to shed light
on the use of the doctrine over the last five years. We consider
it very important that that recommendation is adopted. At the
same time, our re-examination of the subject of joint enterprise
in this inquiry has convinced us that merely improving the amount
of information available is not sufficient, and further steps
need to be taken urgently to address the problems which have arisen
with the application of the doctrine.
45. In light of the evidence we have heard in
this inquiry, and the other developments which have taken place
since our previous Report, our disquiet at the functioning of
the law on joint enterprise has grown. Notwithstanding the positive
development of the publication of the CPS's guidance on joint
enterprise charging decisions, there seems to be no willingness
on the part of the Government to recognize that there may be negative
effects from the operation of the doctrine, for the reputation
of the justice system and for wider society, as well as for the
interests of some of those convicted under the doctrine and for
the victims of crimes.
46. We are no longer of the view that it is satisfactory
for a consultation to be held on the Law Commission's previous
proposals on joint enterprise as contained in their Participating
in Crime report, as we recommended in our 2012 Report. The evidence
which we have received in this inquiry has persuaded us that the
doubts over the appropriateness of the Chan Wing-siu principle,
as it has emerged and then developed in case law since 1985, are
sufficiently serious to mean that its retention should not be
taken as a starting point for any consultation, which was the
Law Commission's inclination.
47. We now recommend that 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. We also recommend
that the Justice Committee in the next Parliament should return
to this issue.
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