What is joint enterprise?

Joint enterprise is a non-legal term used to describe completed offences where more than one person was involved. Each participant in a crime is tried, sentenced and labelled as if they had committed the crime themselves. Even where there are stark differences in the contribution each made, all are labelled the same way and, with minor differences, eligible for the same sentence. In the case of murder, this is a mandatory life sentence. If the murder involved a knife taken to the scene with intent, the starting point for sentencing is 25 years.

The report

The report, by Nisha Waller, was compiled following consultation with experts (criminologists, legal scholars, researchers, lawyers and campaigners) and incorporates insights from wider research on secondary liability spanning over a decade, and an ongoing research study conducted by the author. This research involved in-depth interviews with 41 people including:

• young Black and Black mixed-race male adults prosecuted or convicted as a secondary party to murder since the 2016 Jogee Supreme Court judgment;
• the relatives of young Black and Black mixed-race male adults prosecuted or convicted as a secondary party to murder;
• legal practitioners, including prosecution and defence barristers, criminal defence solicitors and one recently retired Crown Court judge.

One barrister consulted for the research describe the joint enterprise “dragnet”:

“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.”

Conclusions

The report argues that joint enterprise laws are vague and wide in scope, causing systemic injustice, including overcriminalisation, over punishment, discriminatory outcomes, and convictions where there is no compelling evidence of intent and a defendant’s physical contribution is minimal.

It highlights a number of key issues about the current law, saying that it:

• was not ‘fixed’ by the Supreme Court in 2016.
• does not have clear parameters on secondary parties’ conduct and contribution to an offence.
• lacks clarity about what counts as assistance and encouragement (the latter in particular).

The report goes on to say that under the current vague law, suspects are routinely charged and cases constructed with an absence of rigour, quality, and precision as to the role of each defendant. It describes how the law encourages:

• the police and Crown Prosecution Service to charge suspects based on poor-quality evidence.
• ‘storytelling’ and highly speculative prosecution case theory to take precedence over strong evidentiary foundations.
• the use of gang narratives and vague concepts such as ‘in it together’ to construct collective intent. The risks of legal vagueness are particularly borne by young Black men and teenagers, who are most likely to be labelled and stereotyped as gang members.

The report argues that given the seriousness and very longstanding nature of concerns about the current law, the scope of secondary liability law should be narrowed in favour of a clearer and safer legal framework.  It says that preventing wrongful convictions and their grave implications should take priority over the ease of prosecution.

The report concludes by urging the government must make good on their commitment to reform the laws of secondary liability as soon as is practically possible and says that a minimum next step is for the government to request a Law Commission review.

In addition to legal reform, the report pushed for urgent action in relation to the various unjust processes that have flourished under the current vague law, highlighted in this report, particularly police and Crown Prosecution Service charging decisions, the overuse and misuse of gang evidence, and speculative and far-reaching prosecution case theory.