New push to end joint enterprise ‘legal dragnet’
MPs will this week make a fresh attempt to reform the joint enterprise legal dragnet, which has seen groups of friends and associates collectively punished for the crimes of an individual.
Spearheaded by Liverpool MP Kim Johnson, MPs have tabled an Early Day Motion, calling on the Government to make good on its pledge, while in opposition, to reform Joint Enterprise law, with a view to narrow the wide scope of the current law and to provide a fairer framework for prosecution and sentencing. As a practical first step, MPs are proposing a review by the Law Commission, with a view to it developing proposals to narrow the scope of the laws on joint enterprise and establish a fairer sentencing framework for those convicted under joint enterprise.
The call comes as the Centre for Crime and Justice Studies releases a new report, written by researcher and academic, Nisha Waller. The report – The legal dragnet – highlights how the current law on joint enterprise ‘allows and indeed encourages cases to be constructed with the absence of rigour and quality’.
Joint enterprise law – referred to in legal terms as secondary liability – allows for individuals to be convicted of crimes they did not physically carry out, if they are deemed to have encouraged or assisted the perpetrator. The approach has faced mounting criticism for the way it allows minor players and those on the periphery of crimes to be tried and convicted as if they were the perpetrator, with recent reports suggesting a rise in the number of people convicted of murder and manslaughter under joint enterprise law over the past five years.
In one case, highlighted in the report, three young men were given life sentences for murder. At the time of the offence, one was present but played no physical role in the offence, another was downstairs outside the flat where the offence took place, and the third was not even present at the scene. Meanwhile, the individual who actually committed the murder remains at large.
Speaking to the House of Commons Justice Committee in 2012, Sir Keir Starmer, who at the time was the Director of Public Prosecutions, said that joint enterprise prosecution ‘does not work well’ in the case of murder convictions, where ‘someone has played a very minor part in a very serious offence but is none the less convicted’. Some juries, he added, ‘may feel that it simply does not feel fair to convict someone for playing a very small part in a very serious offence’.
One barrister quoted in the report said: ‘We’re convicting people of murder when they play a “very small role, they’re just more than merely present’. Another said:
“the law allows them to draw so many people in they don’t have to go to pinpointing an individual, so they grab as many people even as tangentially as they can… it almost feels as though even if they lose a couple of them… they’ll get enough… that’s what it feels like… throw the net as wide as we possibly can.”
Earlier this year, the Labour MP, Kim Johnson sought a change to the law, to reduce the risk of unfair joint enterprise convictions. Her initiative ran out of parliamentary time, due to the early General Election. However, the then shadow minister for youth justice, Janet Daby MP, told the House of Commons that ‘Labour has previously said that it would look to reform joint enterprise, and that remains our ambition’. In July the Justice Secretary, Shabana Mahmood, told the House of Commons that joint enterprise was an issue of ‘real concern’ for MPs across the House.
Supporters of the current arrangements argue that joint enterprise law gives the police and prosecutors flexibility to catch and convict all those who may have been involved in a crime. However, the report argues the very vagueness of the rules, and wide scope of their application, ‘leaves the state unable to confidently asset that only those truly responsible are being convicted’. Narrowing the scope of joint enterprise law, the report argues, would ensure ‘better precision from the police and prosecutors… and allow greater confidence that juries are convicted defendants based on their contribution to the crime, rather than the prosecution’s case theory and narrative’.
Reform of joint enterprise law would also allow the justice system to focus its resources, and contribute to easing the unprecedented demands faced by the courts, prison and probation services.
Report author, Nisha Waller, said: “Joint enterprise is unjustifiably vague and wide in scope. Law reform will not eradicate institutional racism and broader issues with police and prosecution practice however, the current law encourages the overcharging of suspects and allows cases to be propelled forward based on poor quality evidence. Prosecutors are then left to fill the gaps with speculative case theories and often racialised narratives from which juries are invited to infer joint responsibility.”
Helen Mills, Head of Programmes at Centre for Crime and Justice Studies, said: “This report shows people are being convicted of the most serious crimes on the basis poor quality evidence and dubious stereotyping, particularly regarding gangs. The current ease of prosecution needs to be balanced with clearer thresholds about prosecuting multiple people for the crimes of one person. Reform of joint enterprise law is long overdue. The Law Commission review this report calls for would be a good first step to a safer law and for Labour to make good on its promise to reform joint enterprise law.”
Gloria Morrison of JENGbA said: “This research again exposes the dangerous flaws in using joint enterprise in murder/manslaughter trials further validating JENGbA’s concerns. Neither the courts nor the CPS are able to sort out the abuse of joint enterprise resulting in thousands of wrongful convictions.
Yet again JENGbA call for an immediate suspension of its use, particularly in light of mass overcrowding and the prison and probation crisis.”
Felicity Gerry KC, a legal expert and barrister who has represented people in joint enterprise cases said: “This report reveals the persistence of injustice in cases where the law overly criminalizes and punishes individuals under ‘joint enterprise’ laws, despite their minimal or non-existent contribution to the crime, for which others are responsible.
It underscores the urgent need for legal reform, not only as a matter of legal necessity, but as a moral imperative. Reform is crucial to restore fairness, clarify accountability, and rectify the severe legitimacy crisis in the criminal justice system, particularly in the most serious of cases”
