The usual suspects
A new (28 April 2022) report from the Centre for Crime and Justice Studies shines much needed light on the ongoing scandal of the imprisonment of over two thousand people (predominantly young black men) under the joint enterprise doctrine. The Usual Suspects uses national data to assess the use of joint enterprise laws in prosecutions for serious violence in England and Wales over the last fifteen years.
Three key questions about this complex and controversial area of law are considered:
- How many people have been prosecuted and convicted for serious violence under joint enterprise laws?
- Who has been prosecuted and convicted for serious violence through joint enterprise laws (sex, ethnicity, age)?
- What impact has the Supreme Court ruling had on trends in the use of joint enterprise laws?
What is joint enterprise?
Joint enterprise is a doctrine of criminal law which permits two or more defendants to be convicted of the same criminal offence in relation to the same incident, even where the levels and nature of involvement in the incident were different. Individuals in a joint enterprise case may be ‘principals’ or ‘secondary parties’.
A ‘principal’ is the person who carries out the substantive offence, for example the person who fired the gun.
A ‘secondary party’ is one who is deemed to have assisted or encouraged a principal to commit the
substantive offence, without being a principal offender. Under the doctrine of joint enterprise, the secondary party can be prosecuted and punished as if he or she were a principal offender. Secondary parties can be held liable for the principal’s act on the basis of secondary liability. There is no limit to the number of secondary parties who can be charged.
Over a thousand people were convicted of murder or manslaughter as a secondary suspect in the ten year period to 2020. Over two thousand have been convicted of homicide in cases involving four or more defendants in the 15 year period to 2020.
Before and after the Supreme Court Ruling
Until the Supreme Court ruling (in the Jogee case), 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 (Helen Mills, Matt Ford & Roger Grimshaw) 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.
The CCJS report makes a number of important recommendations, all designed to shed a much brighter light on the ongoing concerns about so many people being convicted of Joint Enterprise crimes and the racial disparity within sentencing (as shown in the graphic reproduced above). The three key recommendations are:
- A full investigation into joint enterprise by the House Of Commons Justice Committee.
- For the CPS to commission a representative case sample audit of secondary suspect decision-making, especially for young people, in cases of homicide.
- For the CPS to produce regularly-updated, publicly-accessible data about the numbers and demographics of secondary suspects prosecuted and convicted for serious violence.