joint enterprise
The research in this new report – The usual suspects – was conducted by the Centre for Crime and Justice Studies, in partnership with the campaign group JENGbA.
Until the Supreme Court ruling, in February 2016, there were three ways that multiple people could be prosecuted for a single offence, under so-called joint enterprise principles. First, if two people jointly committed a single crime, and, second, if one or more people actively assisted or encouraged someone else to commit a crime.
The third way, known as ‘parasitic accessory liability’, involved cases in which two or more people committed a crime, during which one of them committed another crime. Under parasitic accessory liability, the others could be prosecuted as secondary suspects, on the basis that they should have foreseen that the primary suspect would commit another crime. In 2016, the Supreme Court ruled that this third approach – parasitic accessory liability – had been wrongly applied, setting far too low a bar for individuals to be convicted of offences they did not perpetrate.
To explore the possible impact of this ruling, researchers at the Centre for Crime and Justice reviewed prosecutions and convictions of secondary suspects for murder and manslaughter, and multi-defendant cases for homicide.
For murder and manslaughter:
- In three years leading up to the Supreme Court ruling – 2013/14 to 2015/16 – the researchers identified 522 individuals charged as secondary suspects and 296 convictions of secondary suspects.
- In the three years following the ruling – 2016/17 to 2018/19 – researchers identified 547 individuals charged as secondary suspects and 326 convictions of secondary suspects.
There was therefore no discernible impact on the number of prosecutions and convictions.
The researchers also looked at the age, ethnicity and other characteristics of defendants. A clear profile emerges about who has been convicted of serious violent offences through joint enterprise laws. They are predominately young men. Those from minority ethnicity communities, particularly the Black community, are consistently over represented. Indeed, there are indications that the most recent period has seen some increase in ethnic disproportionality among those convicted under joint enterprise rules.
Among its recommendations, the report is calling for Crown Prosecution Service to commit to proper data collection, and to undertake a retrospective review of joint enterprise prosecutions. It also calls for the House of Commons Justice Committee to undertake an Inquiry into the application of the joint enterprise rules.
The findings come at a time of renewed campaigning around the impact of joint enterprise on prisoners and their families. Those convicted prior to the 2016 Supreme Court ruling face enormous obstacles to challenging their convictions. This has led JENGbA to propose a change in the law, through a Private Member’s Bill, to make it easier for successful appeals to be mounted.
Speaking today, Helen Mills, Head of Programmes at the Centre for Crime and Justice Studies and one of the report authors, said:
The Supreme Court ruling could not have simply resolved the well-established injustices of joint enterprise. But we were surprised at how consistent the number of prosecutions and convictions secured through joint enterprise were throughout the fifteen-year period we looked at. Before and after the Supreme Court ruling, numbers of prosecutions through joint enterprise laws were remarkably similar, suggesting not much has changed.
Currently there is no official record about the use of joint enterprise. In the absence of better data collection, these figures are our best guide to gauging trends about how this complex and problematic area of law is working. While we did the best we could to establish the most accurate picture, our work also strengthens the argument for greater transparency about this controversial area of prosecution policy.
Gloria Morrison, of JENGbA, said:
The Supreme Court victory in 2016 vindicated everything JENGbA had said for many years. This victory was bittersweet because we have found that those convicted under the wrong interpretation of the law now find themselves with the impossible hurdle of the Substantial Injustice Test.
Jan Cunliffe, of JENGbA, added:
JENGbA campaigners did originally take comfort from the fact that the daily trauma they continued to face, would never happen to another family. However, these findings come as no surprise to us. We receive calls from distressed family members on an almost weekly basis. Their confusion and disappointment in the criminal justice system is a harrowing reminder of the urgent need for Parliamentarians to step in and put right the draconian measures that are continuing to destroying the lives of so many.
Richard Garside, Director of the Centre for Crime and Justice Studies, said:
I remember the 2016 Supreme Court ruling well, and the hope among campaigners that it would be a real turning point. We need our research to be confirmed by future pieces of work, but it suggests that meaningful reform to the controversial joint enterprise rules is desperately needed.
Parliament is in a position to address what could be a substantial injustice in the way joint enterprise rules continue to be applied. As a first step, we think it would be positive step for the House of Commons Justice Committee to undertake an Inquiry into joint enterprise.
A new report written by academics at Manchester Metropolitan University reveals fresh evidence about the number and experiences of women in prison under laws of complicity known as joint enterprise.
The report, Stories of Injustice is an examination of the process of criminalisation for women convicted under joint enterprise laws. The use of this law in England and Wales remains hidden, but this research reveals for the first time that at least 109 women have been sentenced to long prison terms for joint enterprise convictions. Seeking to understand how and why this occurs, the report details harrowing examples of the experiences of these women.
The youngest girl in the research was charged at 13 years old, while the oldest woman serving a joint enterprise sentence is 68 years old. Many (34%) were young adults (18 to 25) when charged, while there were six who were children under 16 at charge. The majority have convictions for serious violent offences, with over three quarters convicted for murder or manslaughter offences. This is despite the fact that in no cases did the woman or girl use a deadly weapon, in 90% of cases they engaged in no violence at all, and in half of the cases they were not even present at the scene.
Yet most of the women are serving long or indeterminate prison sentences at an average of 15 years, with almost half (47%) serving life sentences of up to 30 years. Despite a 2016 Supreme Court ruling which found the law had “taken a wrong turn” when it comes to joint enterprise, this research reveals that secondary parties (as they are known in the law) continue to be convicted as if they committed the offence, with 16 of these women convicted since the 2016 ruling. The convictions date back to 2004 and the women are from towns and cities across England and Wales. Campaigners from JENGbA, the family led national campaign, believe there are likely more women’s experiences to be uncovered.
Joint enterprise is a set of legal principles grounded in common law and originating from Victorian times. Its use has re-emerged in the past 30 years, allowing many individuals to be convicted for one offence even where the roles of secondary parties are marginal, or evidence of their foresight is uncertain. Stories of Injustice offers an academic analysis of how and why women are convicted in joint enterprise trials.
According to the analysis across the country prosecutors rely on myths, gendered, class based and racist stereotypes and stigmas to convict women. For example, the report says, in one case the judge commented on a female defendant as “a feckless mother of unfortunate children” for whom “the state picks up the pieces of your fecklessness”. The judge made no remark on the parenting by the men in the dock despite two of the three male co-defendants being fathers, one to a child of the female defendant.
The report finds that this characterisation of women is central to their convictions. Established by prosecution teams, echoed by the media and in some cases the Judge, girls and women are presented as feckless mothers, manipulative love rivals, jilted lovers, or ‘honey traps’. For women from Black, Asian and minority ethnic backgrounds these are layered with racist narratives, including tropes about gangs and ‘alternative’ lifestyles.
Like many other women in prison, the accounts of those convicted under joint enterprise captured significant experiences of marginalisation and trauma. In almost one half of the cases there had been a repeated failure by the police and other agencies to protect them from violence as children and adults, or for many women, to respond to their health or care needs. Often this important context was minimised or ignored during trials, or worse used to damn women for their silence, fear or inaction.
In one such case the female co-defendant had experienced years of sexual exploitation, but the prosecution argued that she ‘manipulated men for sex’.
“My abuse was used by the prosecution to paint a bad picture of me. I think also when used by the defence it didn’t help. I just don’t think they believed me.” (Jenna)
“I think I was judged more harshly because I was a woman. Intelligence was equated with ability to deceive and manipulate… and I was judged on my lifestyle and my addiction.” (Willow)
The report calls for urgent action to prevent this continuing injustice, including:
- A moratorium on the use with women of joint enterprise and secondary liability.
- Increased transparency and accountability in the decisions to use secondary liability by the Police and Crown Prosecution Service (CPS) in cases involving female defendants in multi-offender cases.
- The evidence on the use of joint enterprise with women defendants to be scrutinised by a Parliamentary Committee with appropriate jurisdiction, alongside a ‘People’s Panel’ of relevant experts and interested parties.
- The removal of existing barriers to legal appeals for those women currently in prison where there is a very real possibility of a miscarriage of justice – including the incoherent ‘substantial injustice test’ and the barriers to accessing transcripts of trials to support out of time appeals.
The research concludes that the current criminal justice system is inadequate in ensuring justice and accountability, addressing harm and preventing further violence.
