The case against joint enterprise

The case for reform

The Justice Committee report followed a brief inquiry it held in 2011 in response to growing concern over what was seen as an increasingly wide and arbitrary use of the joint enterprise doctrine. For example, the Prison Reform Trust told the Committee that ‘joint enterprise may be used disproportionately in cases involving children and young adults and can act as a dragnet, bringing individuals and groups into the criminal justice system who do not necessarily need to be there’. ³ The campaigning group JENGbA (Joint Enterprise: Not Guilty by Association), ⁴ formed in 2010 to support those claiming to have been wrongly convicted under joint enterprise and their families, provided the Committee with evidence of several hundred such cases over the past decade. ⁵ Another group, campaigning from the opposite perspective to ensure prosecutions for unlawful killings, Families Fighting for Justice, complained about the inconsistent application of joint enterprise, with some people ‘“taken in just for standing by and watching” while in other cases “a group or gang has been allowed to walk free”’. ⁶

Although the Justice Committee was unable to obtain national statistics on the use of joint enterprise, the BBC reported in 2010 that in the previous two years there had been 116 joint enterprise murder cases involving 365 defendants prosecuted in London alone. ⁷ London’s Metropolitan Police also produced a video, Who Killed Deon?, ⁸ purporting to document the murder of a young black man in which a group of other black youths were variously implicated, which ended with following stark message: ‘If your presence, knowledge or actions lead to murder you’ll be charged with murder under Joint Enterprise.’ ⁹

This video was widely shown in cinemas, on YouTube and Facebook and in community venues in a campaign to deter youth from involvement in gangs, with the message being sent that ‘being associated with a violent crowd and involved, even marginally, in a foreseeable attack that leads to death could result in a murder conviction’. But, as one commentator noted, this campaign resulted in ‘an overwhelming suspicion that the criminal law will penalise young people for being in the wrong place, at the wrong time and with the wrong crowd’. ¹⁰

This same commentator noted that:

Professionals on both sides of the criminal justice system agree that joint enterprise can encourage lazy prosecuting. Prosecutors can charge the whole group and leave the court to allocate individual culpability. This inevitably ends with lengthy trials and complex directions to juries. It is certainly capable of producing results that strike many observers as unfair. ¹¹

As one legal expert told the Committee: ‘there is a terrible temptation to charge – I do not say indiscriminately – everyone involved in the gang or who has some association with it.’ ¹²

In a recent case of a group of black youth chasing another youth and stabbing him at the bottom of an escalator in London’s Victoria Station, no fewer than twenty alleged members of the gang were charged with murder and subject to five separate trials over two years. These resulted in only three of the defendants being convicted of murder, five others of manslaughter, nine of other violent offences, and three acquitted of all offences. Even now, one of those convicted of manslaughter is due to face retrial for murder. As one reporter on this case has noted:

[Joint enterprise] places an unusually heavy burden on a jury by obliging them to convict people who they may well think are barely involved. In some cases they may even defy the law and acquit people who they feel uncomfortable about convicting, even if all the legal boxes are ticked. A different jury, on similarly tenuous facts, may take against a defendant and convict. Especially for young people, even time in custody on remand is acutely difficult and damaging, if they are eventually acquitted. ¹³

For its part, the Justice Committee noted that it ‘heard evidence that public policy considerations relating to gang violence, together with the lack of clarity over the ambit of the law, may mean that joint enterprise could lead to over-charging in gang related matters.’ ¹⁴ While acknowledging the potential effect of deterring some young people from becoming involved in gangs, the Justice Committee concluded that:

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 inappropriately. Over-charging 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. ¹⁵

The use of joint enterprise in murder cases is particularly controversial because UK law does not distinguish different degrees of murder and all murder convictions attract a mandatory life sentence with fixed minimum custody tariffs. Under joint enterprise, someone with only a peripheral or minor involvement in an incident resulting in a death can nevertheless be convicted of murder on the basis, not that they intended the person to be killed or seriously harmed, but, rather, that they could have foreseen that another person might cause the death with the necessary legal intent. Despite their limited personal involvement, such a person will still attract a mandatory life sentence with a fixed minimum term of imprisonment.

The concept that a person can be convicted on the basis of mere foresight rather than intent is one way in which the common law doctrine of joint enterprise has been expanded by judges in case law over recent years, ¹⁶ thereby opening the way for its wider use. As was explained in evidence to the Justice Committee:

The prosecution will usually find it easier to adduce evidence that the defendant foresaw what the principal might do than to adduce evidence that he actually intended the principal to cause serious injury or to kill – indeed, such evidence may not go far beyond evidence of association (or alleged ‘gang membership’) added to alleged presence at the scene. For this reason, the … [foresight] principle increases the likelihood that cases will be prosecuted on the basis of weak and tenuous evidence. ¹⁷

The Committee cited another legal expert, Professor Andrew Ashworth, to the effect that:

[the law of joint enterprise is] replete with uncertainties and conflict. It betrays the worst features of the common law: what some would regard as flexibility appears here as a succession of opportunistic decisions by the courts, often extending the law, and resulting in a body of jurisprudence that has little coherence. ¹⁸

It recommended that the problem of over-charging under joint enterprise might be most immediately addressed through the Director of Public Prosecutions (DPP) producing new guidance on its use, particularly to clarify ‘the proper threshold at which association potentially becomes evidence of involvement in crime’. ¹⁹ However, it acknowledged that prosecutorial guidelines would not be capable of addressing more fundamental issues regarding the scope and uncertainty of the joint enterprise doctrine as it has developed in case law over recent years. The Committee therefore concluded that ‘[t]he lack of clarity over the common law doctrine on joint enterprise is unacceptable for such an important aspect of the criminal law’ and recommended that it be enshrined in legislation. ²⁰

Standing out against reform – the official response to the Justice Committee

In a statement from the then Lord Chancellor and Secretary of State for Justice, the government was quick to reject this final recommendation, and in the process offered its endorsement, citing the cause of combating gangs, of what many see as one of the prime defects in the current law on joint enterprise:

[W]e 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. ²¹

On the other hand, the Director of Public Prosecutions (DPP), Keir Starmer QC, has produced draft guidance on joint enterprise. ²² Unfortunately, far from helping to clarify the relationship between association and complicity and other aspects of the joint enterprise doctrine, the draft guidance in many respects confirms the highly complex, confused and uncertain nature of the law in this area and its continuing potential for injustice and miscarriages of justice.

The draft guidance is written in formal language as it is addressed to lawyers who perform the role of prosecutors, and in several instances, rather than spelling out the intricacies of the joint enterprise doctrine, readers are simply referred to legal cases and textbooks. Yet, as was the case with the guidance issued recently by the DPP on prosecutions for assisted suicide, ²³ such documents should also serve a wider purpose of advising ordinary members of the public as to the circumstances in which they may or may not face the risks of criminal prosecution under the particular law in question. Viewed from the perspective of young persons (or their parents and guardians) who need to know what legal risks they face when going out with a group of friends who may get caught up in a criminal incident and how to avoid such risks, the guidance as currently drafted is worse than useless, in that it is virtually incomprehensible to anyone lacking legal training or expertise.

It notes at the outset that ‘joint enterprise principles can be applied to most offences’ but then asserts that they ‘are most commonly used in offences of violence, theft, fraud and public order.’ ²⁴ No justification for this restriction in the actual use of joint enterprise is offered, although arguably it implies a strong element of class and race bias, with the focus in its application being on the crimes of the working class and deprived social groups rather than those of the powerful and privileged. An obvious current example here would be phone hacking, where many of those involved, if not directly engaged in the actual commission of the criminal acts, have in various ways aided, abetted, counselled or procured the offences.

A key weakness in the draft guidance is its failure to distinguish at various points between joint criminal enterprises that are pre-planned and those that may arise spontaneously where a group of people otherwise engaged in lawful activity are suddenly caught up in a violent or criminal incident. It merely states that the ‘same principles that apply to pre-planned joint enterprises apply equally to a spontaneous joint enterprise,’ ²⁵ citing the case of R v Mendez and Thompson. ²⁶ All the practical examples of joint enterprise situations given subsequently appear to relate to pre-planned joint enterprises. Moreover, while the principles that apply in these two situations may be the same, there will be a need for greater caution to be exercised in the application of at least some of these principles where a joint enterprise occurs at the spur of the moment or in unanticipated circumstances. Thus, such questions as whether a particular individual was in fact a party to the joint enterprise, whether that individual could in the circumstances have reasonably foreseen that the criminal offence might occur, and whether the individual had a reasonable opportunity to withdraw from the joint enterprise, may all have different applications given the varying circumstances of pre-planned and spontaneous joint enterprises.

On the central point of clarifying the ‘threshold at which association potentially becomes evidence of involvement in crime’, the draft guidance starts off by stating that:

Without some participation by D [the defendant being charged as an accessory], the following will not satisfy the evidential test [for a prosecution to proceed]:

• Mere presence at the scene of the offence.

• Association with the principal offender(s).

• Association with or membership of a group or gang. ²⁷

Unfortunately, this statement is immediately qualified, and even contradicted, in a way that illustrates exactly the complex and confused state of the current law in this area. Thus, the following paragraph of the draft guidance states that all the above factors ‘are capable of being evidence in the case. Moreover, the level of participation required may sometimes, depending on the circumstances, be minimal in order to satisfy the evidential stage.’ ²⁸ Subsequently, it is noted that:

the courts have sometimes interpreted D’s voluntary and purposeful presence at the scene as amounting to sufficient encouragement to P [the principal offender], so as to aid and abet P’s offence. In such circumstances, D may be liable as an accomplice. Whether D’s presence amounts to encouragement is a question of fact and degree. Factors to be considered include whether D voluntarily attended the location, the effect of D’s presence on P, and D’s state of mind. ²⁹

Nor is there any explicit acknowledgement here that prosecutors should treat pre-planned and spontaneous joint enterprises differently in addressing these issues.

The draft guidance also considers the public interest in pursuing prosecutions under joint enterprise, and in this context states that:

Where D’s role as an accomplice is minor or peripheral but the offence is a serious one, consider whether a less serious charge than that charged against the principal is more appropriate. For instance, where the offence attracts a mandatory or automatic or minimum sentence, the charge may be considered disproportionate to the culpability of D. However, if no appropriate lesser charge is available, the public interest will usually require a prosecution, as only in exceptional cases would it be appropriate not to charge a suspect who has participated in the commission of a serious offence. ³⁰

The final sentence here can be contrasted with that contained in the Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide, which lists among the factors making a prosecution less likely to be required the fact that ‘the actions of the suspect, although coming within the definition of the offence, were only of minor encouragement or assistance.’ ³¹

More importantly, as a matter of policy, the proposition in the final sentence quoted above goes to the heart of what is widely perceived as the miscarriage of justice resulting from many joint enterprise cases, namely that someone who plays only a minor and peripheral role in the commission of a serious offence, up to and including murder, may, where no appropriate alternative charge is available, still be prosecuted for that offence, be convicted, and receive a sentence, possibly including a mandatory life sentence, that is clearly disproportionate to the seriousness and extent of their offending behaviour. Arguably, the presumption contained here should be reversed, to state that ‘if no appropriate lesser charge is available, it should only be in exceptional cases that the charge for the more serious offence should nevertheless be pursued, even at the risk that this will result in a sentence that is grossly disproportionate to the seriousness and extent of the offending behaviour’.

Although subject to only very restricted consultations, the final version of the DPP’s guidance, issued in late December 2012, ³² has introduced some changes. It now states that ‘[m]ere accidental presence at the scene of an offence is not sufficient for D to be liable as a secondary party’ but still goes on to note that a person’s ‘voluntary and purposeful presence at the scene, depending on the circumstances of the case, may amount to assistance or encouragement to P, so as to assist of encourage P’s offence’. ³³ It is, however, acknowledged that:

in a case of spontaneous joint enterprise D’s initial presence may have been for a wholly innocent purpose, such as a gathering of friends in a public place. If spontaneous violence subsequently occurs, prosecutors should identify evidence of assistance and encouragement and the evidential basis for the proof of D’s intent to assist or encourage. ³⁴

and further that:

[i]n cases where evidence of D’s assistance or encouragement is based solely or primarily on D’s voluntary and purposeful presence at the scene of the offence, prosecutors should consider carefully whether a prosecution is required in the public interest. ³⁵

Unfortunately, no similar cautions with regards to spontaneous joint enterprises have been introduced to the guidance in relation to other key questions, such as whether a person has had sufficient opportunity to withdraw or could have reasonably foreseen that a particular crime might be committed. The final guidance also removes the presumption, where no alternative charges are available, in favour of prosecuting someone who has only ‘minor or peripheral’ involvement in a serious crime, stating instead that prosecutors ‘must weigh carefully the merits of proceeding with a charge for the serious offence, or not proceeding at all’ and that the ‘decision as to where the public interest lies will depend on the facts of each case.’ ³⁶

Overall, the issuing of such guidance cannot be considered a substitute for a much more fundamental review of the law of joint enterprise, leading as suggested by the House of Commons Justice Committee to new legislation clarifying and codifying the law in this area. If anything, the DPP’s guidance, by confirming the unsatisfactory nature of the law of joint enterprise in its current state, only serves to highlight the urgent need for such a wholesale review. Yet, despite the fact that the contradictions in the current law of joint enterprise and the racial and class bias in its application are obvious for all to see, not only the current UK government but also the police, prosecutors and many members of the judiciary have all seemingly turned their faces firmly against reform, even at risk of continuing miscarriages of justice, let alone the fact that many earlier victims of joint enterprise are still serving long periods of imprisonment. The situation is reminiscent of an earlier refusal over many years for the British legal and political establishments to acknowledge the wrongful convictions of supposed Irish terrorists.