The legal doctrine of joint enterprise is a set of common law legal principles originating from Victorian times. A heavily criticised doctrine of collective punishment, joint enterprise is relevant in cases where two or more people are charged with offences, enabling a conviction when a criminal act has been committed by another person. The law on joint enterprise is a lowering of the evidential bar in favour of the prosecution, who deal with a different burden of proof to that of a normal criminal charge. When a charge is one of joint enterprise, a person can be prosecuted if they can be shown to have intended to encourage or assist an offence.
A historically-established aspect of criminal law in England and Wales, joint enterprise has become increasingly scrutinised due to the application of the principle of ‘common purpose’, where individuals can be convicted of the same offence having played different roles or even been in different locations. A person playing no active part in the commission of an offence could be convicted on the basis of their presence near the location of the offence, or by virtue of a prior association with others under suspicion. It is estimated that hundreds of individuals are serving extra-ordinarily long sentences for murders that they may have neither intended to occur nor, in some cases, witnessed.
There is a potential for lengthy sentences to be handed to those whose involvement in an offence is highly peripheral. It can be argued that when an offence carries a mandatory sentence, such as murder, or to a lesser extent a minimum sentence (such as five years’ imprisonment for certain firearms offences), sentencing cannot happen on the basis of role and a person with peripheral involvement could receive a highly excessive sentence. Joint enterprise convictions have been contingent upon the demonstration of a shared ‘belief and contemplation’ by the prosecution, with a view that there is too little a difference ‘between the bad man and the scared man’ when prosecuting using the doctrine.
As a common law doctrine, joint enterprise has been interpreted and re-interpreted over time, widening in scope with many judgments. Prior to 2016, when the interpretation of the law by the courts was changed, a person could have merely foreseen the committing of an offence to be guilty of it. Following the Supreme Court’s ruling in Jogee that seemingly reformed the doctrine of joint enterprise, almost every appeal to overturn a joint enterprise conviction has been unsuccessful.
The ‘substantial injustice’ test, that must be satisfied for a successful appeal, has hindered appeals in-part because there is no way to know what evidence a jury did, and did not, believe. It is argued by some that convictions that fall under the now-abolished parasitic accessorial liability (PAL) – a principle that a person’s liability could rest on their foresight of a possible offence committed by their co-defendant – should be given a right to appeal to protect the human right to a fair trial.
The law of murder, and the formulation of the offence of being a ‘secondary party’, could be reviewed to offer resulting sentences that better represent the actions and intentions of each participant in a joint enterprise offence. Most individuals convicted as secondary parties to an offence accepted that their actions rendered them culpable of some crime, but those same people denied being legally and morally responsible for killing someone, though many did admit a presence at the scene or acknowledged lying to the police. Sentences handed to secondary parties were described as a result of ‘vengeful retribution’ and arising from a ‘focus on police clean up rates’, with convictions being possible in situations where the culprit of an offence is unknown or impossible to prove.
It has been argued that action should be taken to address retrospective wrongs. An automatic right of appeal, to skip the requirement to seek leave of appeal from a single judge, would allow those convicted prior to the ruling in Jogee to have their cases re-heard. The Criminal Appeal Act 1968 states that in order to have an appeal, a person must apply within 28 days following the date of conviction; this rule exists as an obstacle to those convicted under PAL, as while this principle was abolished by the Supreme Court with the reinstatement of traditional accessorial liability principles, permission to appeal a conviction is only currently granted to those who can prove that they would not have been convicted if the law had been properly applied. If passed, a private members’ bill would allow leave to appeal an unspent conviction where there has been a material change in the law.
While the well-established doctrine of joint enterprise exists in common law, it is evident that young men from socially deprived BAME backgrounds will continue to suffer disproportionate and selective over-charging based on limited involvement in alleged offences, as well as the ‘brunt’ of joint enterprise through the use of the ‘gang’ construct and enforcing of racialised stereotypes. The Metropolitan Police film ‘Who Killed Deon’ is one example of police willingness to penalise young people for being in the wrong place at the wrong time. The video, showing the aftermath of the murder of black man, ended with the message: ‘If your presence, knowledge or actions lead to murder you’ll be charged with murder under joint enterprise’.
The legal legitimacy of joint enterprise was also considered as part of the denunciation of joint enterprise. The questioning of sentences by those convicted under the doctrine was described as a ‘legitimacy deficit’ that led to ‘deciphering’ reasons for imprisonment and suppression of perceptions of illegitimacy to escape. Proposals made in the academic sphere have included amendment of appeal processes as well as the review of the law of murder and the offence of being a ‘secondary party’; sentences handed to secondary parties were described as ‘vengeful retribution’, with it theorised that ‘police clean-up rates’ were a relevant factor in the imprisonment of individuals who denied being responsible for a death.
The overall situation is not helped by lack of diversity amongst jurors deciding the fate of joint defendants, it is implied in a study that involved the interviewing of female defendants. It was said by one interviewee that there were ‘no black jury members and no one from a lower class’ at their trial; another said it was ‘an all-white jury’ but ‘all defendants were black or brown’ in their case, with a third interviewee remarking that the predominately white jury ‘did not understand the Pakistani culture’. This is an issue of jury ethnicity, it is noted. In that same study, for the female interviewees who reported their ethnicity as black or mixed race, there were narratives of a ‘honey trap’ and the luring of others to violent situations.
Elliot Tyler 