3 The use of joint enterprise |
16. Witnesses representing offenders who claim they
have been wrongly convicted, those who represent people who have
lost family members through gang attacks and others told us that
they believed the current law on joint enterprise was leading
to miscarriages of justice. The Prison Reform Trust (PRT) told
The Prison Reform Trust is concerned that joint enterprise
may be used disproportionately in cases involving children and
young adults and can act as a drag-net, bringing individuals and
groups into the criminal justice system who do not necessarily
need to be there. Our visits to young offender institutions have
produced anecdotal evidence that this is the case.
17. Gloria Morrison, from the campaigning group JENGbA
(Joint Enterprise Not Guilty By Association) told us that the
complexity of the law presented serious difficulties for juries:
"The juries often come back to the judge to say, "We
don't want to convict this person." They are very confused.
They can see who is culpable and they do not want to do it. The
judge will say, 'No; it's a joint enterprise. You have to convict
or acquit.' "
The complexity of the law can be overwhelming; Ms Morrison told
us that: "In Laura Mitchell's case [the jury received] a
49-page route to verdict."
Tim Moloney QC, Simon Natas,
PRT and JENGbA
all thought the use of joint enterprise was increasing. JENGbA
submitted some evidence to us on this issue but accepted that
in the absence of official records it must remain partial.
18. Jean Taylor of Families Fighting for Justice,
a campaign group seeking to ensure prosecutions in cases of unlawful
killing, told us that the lack of clarity over joint enterprise
led to it being inconsistently applied. In some cases, she told
us people are "taken in just for standing by and watching"
while in other cases "a group or gang has been allowed to
walk free...they have not been charged with joint enterprise."
19. There is little or no evidence, beyond the anecdotal,
on the use of joint enterprise in England and Wales against which
the above allegations can be tested. While, as the Director of
Public Prosecutions told us, joint enterprise "is available
for pretty well all offences, unless there is a statutory reason
it cannot be used"
no statistics are collected on its use or whether its use is increasing.
The Director of Public Prosecutions told that, in his experience,
"It is very commonly used for violence, affray, burglary
and those sorts of offences. They would be the most common ones..."
20. Although there are no statistics on the use of
joint enterprise there is evidence to suggest that the doctrine
is causing some confusion in the courts. Joint enterprise has
been the subject of a high number of appeals in recent years,
as Professor David Ormerod, Criminal Law Commissioner at the Law
Despite the experience at the bench and bar in these
cases, and the now commonplace use of written directions and routes
to verdict for the jury, the steady flow of appeals continues.
In 2010 there were eight Court of Appeal decisions on this topic.
The outcomes of the trials and indeed of the appeals are often
perceived as illogical or unfair.
21. During the course of this inquiry the Supreme
Court was also required to consider an aspect of the law on joint
enterprise. In R v Gnango the defendant was engaged in
a gunfight with another man across a car park in South London.
Tragically, a young woman on her way home from work was killed
by a bullet fired from the gun of the other man. The question
for the court was whether, by participating in the gunfight, the
defendant was guilty of engaging in a joint enterprise with the
other gunman and so guilty of murder, or whether he was guilty
solely of attempted murder. The Supreme Court found that the definition
of joint enterprise could include a 'shoot-out' between two people
where each was intending to harm the other.
This case illustrates the difficulties that can arise for courts
and juries considering the cases based on joint enterprise.
22. The Director of Public Prosecutions, while appreciating
that we may have concerns that there were no data on the use of
joint enterprise, told us:
I think the reason there are not specific statistics
is that at the moment the prosecutor can, and arguably should,
charge an individual both as a principal and as a secondary party
in the same indictment. There is an argument that as a matter
of law you have to do that. At the outset, the advantage for the
prosecutor is being able to charge in that broad and, if you like,
alternative way. The only way to collect statistics would be to
try to work out after the event, looking at jury verdicts, whether
they had in fact convicted on the basis of the principal offence
or secondary liability. I accept that can probably be done, but
it is not something we have done up to now. Therefore, unlike
other offences where we are able to put a flag in the system when
an offence is charged and then marry it up to a conviction, that
is simply not possible under our current arrangements. I think
that is why you do not have statistics...
23. Crispin Blunt MP, Parliamentary Under Secretary
of State at the Ministry of Justice and the Minister with responsibility
for the criminal law, agreed with the DPP and told us that the
collection of statistics would be resource intensive:
You would have to go back to the cases individually
and manually to do that. If there were an immediate prospect of
an issue to addressI understand the scale of how often
joint enterprise is usedwe would, obviously, have to consider
whether to devote that scale of resources to it, but I would be
misleading you if I suggested that that were an immediate prospect.
24. Mr Blunt accepted that there were some problems:
"it comes back to the issue of availability of resources.
If it is possible to get a better fix on this without it costing
an arm and a leg in terms of either people or money, it is an
area where we could do with better data."
25. 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.
Is there a particular problem
with the law and use of joint enterprise in cases of murder?
26. A number of witnesses expressed particular concerns
about the operation of joint enterprise and murder. A conviction
for murder carries with it a mandatory life sentence. Despite
recommendations from the Law Commission
and others no government
has produced a bill on the abolition of the mandatory life sentence
or on creating a two or three tier approach in which intending
to cause really serious harm is treated differently from premeditated
killing. The difficulties over the "parity of culpability"
are thrown into particular relief when the court has limited discretion
over the length, and no discretion over the type, of sentence.
27. The Committee on the Reform of Joint Enterprise
(CRJE), "an ad hoc collection of lawyers, academics and otherwise
concerned individuals and groups",
told us the operation of joint enterprise and the mens rea
for murder contradicted "three fundamental principles"
of the criminal law:
First, in the absence of a clear mental element for
liability, it imputes intention or foresight on the basis of the
unconnected actions or agreement of D2 with D1. Second, there
is a perilous slope involved in guiding juries on joint enterprise.
Although the strict letter of the law does require D2 to know
or subjectively foresee the elements of the ultimate offence committed,
the reality is different. The courts' and prosecutors' readiness
to allow a jury to find that D2 foresaw a risk that a weapon would
be used on the basis of his knowledge of its presence detracts
from the subjective nature of the mental element. Third, there
being no connection required to be proven between D2 and the victim's
death, D2's guilt is constructed from a wide range of precarious
basesessentially his association with the person who actually
committed the murder.
This results, the CRJE concluded, with "the
labelling of individuals whoalbeit not entirely innocentcannot
properly be called 'murderers'."
28. The Director of Public Prosecutions acknowledged
that the imposition of a life sentence when "someone has
played a very minor part in a very serious offence" has the
potential to appear disproportionate. Juries, the DPP told us,
"may feel that it simply does not feel fair to convict someone"
in those circumstances.
This evidence reflected that drawn to our attention by Professor
Lee Bridges, Emeritus Professor at Warwick University, which suggested
that public support for the imposition of mandatory life sentences
in "typical joint enterprise scenarios" was weak.
Gang-related and group violence
29. Public fears over gang-related and group violence
have been heightened in recent years. We heard evidence that the
principle behind the doctrine of secondary liability, that everyone
involved in a criminal enterprise should be held accountable,
may also have a deterrent effect on young people who could become
involved with such activity. Jean Taylor, of Families Fighting
for Justice, told us that being aware they could be prosecuted
for even minor involvement in a crime could have a direct effect
on young people's behaviour. Ms Taylor's organisation had sought
to raise awareness of the law among young people through the relatives
of those who had lost family members talking through the consequences
for all involved in gang-related violence:
I strongly believe there are no better people to
do that talk. It is no good a police officer getting up there,
because they don't like the police; they don't welcome the police.
Families go in and do these workshops.
30. We also heard evidence that public policy considerations
relating to gang violence, together with a lack of clarity over
the ambit of the law, may mean that joint enterprise could lead
to over-charging in gang related matters. The Committee on the
Reform of Joint Enterprise told us that:
The adverse effect on young people of being charged
and put on trial for serious offences for which they are eventually
acquitted on the basis of precarious charges, and in respect of
which they may spend substantial periods of time remanded in custody
is grave and cannot be ignored.
31. The CJRE's evidence reflected similar concerns
from both JENGbA and Families Fighting for Justice.
Professor Horder agreed, telling us "there is a terrible
temptation to chargeI do not say indiscriminatelyeveryone
involved in the gang or who has some association with it."
He suggested that "guidelines might do a lot to ameliorate
some of the harshness of the law":
if the people involvedthe Director of Public
Prosecutions, the Attorney-General, and so oncould get
together and decide what threshold must be met before it would
be appropriate to charge people on that basis, I, for one, would
be very relieved. It is there, I think, that there is a real risk
of injustice, because it is inevitable that everyone who is arrested
in that scenario will say, "It wasn't me. It was the other
person." That is also what the perpetrator will be saying,
of course. It will be very difficult for a jury to distinguish
between the credibility of those claims unless the police and
the prosecution exerciseI do not say greater restraint
than they are doing, as I am sure that would be controversialrestraint
in accordance with principles. That is very important.
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
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.
32 Ev w14 Back
Q 78 Back
Ev w6 Back
Ev w14 Back
Ev 27 Back
Q 44 Back
Q 2 Back
Q 2 Back
Ev 42 Back
R v Gnango  UKSC 59 Back
Q 2 Back
Q 135 Back
Murder, Manslaughter and Infanticide, Law Commission paper
No. 304, November 2006, HC 30 Back
For example, the Homicide Review Advisory Group who published
its report in November 2011. Back
Ev w18 Back
Ev w20 Back
Q 24 Back
Ev w2 Back
Q 54 Back
Ev w20 Back
Q 57 Back
Ev 27 Back
Qq 120-121 Back