After examining developments in the three years since publication of its previous report on joint enterprise, including new information on numbers of prosecutions, convictions and appeals in joint enterprise cases and on the ethnic breakdown of those convicted under the doctrine, the Committee says the Law Commission should be asked to consider in particular the mental element or mens rea threshold for establishing the culpability of secondary participants in joint enterprise cases.
The Committee also says that the Law Commission should consider the proposition that it should not be possible to charge with murder, but only with manslaughter or a lesser offence, secondary participants in joint enterprise cases who did not encourage or assist the perpetration of the murder.
The Committee Chair, Rt Hon Sir Alan Beith MP, said:
“There are clearly cases in which joint enterprise is necessary to ensure that guilty people are convicted. But the Committee’s disquiet at the actual functioning of the law of joint enterprise has grown since we inquired into the subject in 2011. We are particularly concerned about joint enterprise in murder cases. The mandatory life sentence for murder means that an individual can be convicted and given a life sentence without the prosecution having to demonstrate that they had any intention of murder or serious bodily harm being committed, and where their involvement in a murder committed by someone else was minor and peripheral. In murder cases judicial sentencing discretion is strictly limited by statute”.
When the Committee reported previously on the subject, it recommended that the Crown Prosecution Service produce guidance to prosecutors on joint enterprise charging decisions, which the CPS did in December 2012. In this report the Committee considers the impact of that guidance. It also considers statistics compiled by the CPS for 2012 and 2013 on murder and manslaughter cases with two or more defendants, as well as information on the use of joint enterprise assembled by academics, journalists and campaigners.
The Committee concludes that the guidance for prosecutors contains a comprehensive and detailed account of the law as it stands, but when it comes to assessing the impact of the guidance the Committee says that the available information enables only the most tentative conclusions to be drawn about whether prosecutors are avoiding overcharging. The Committee recommends the introduction of arrangements to provide much fuller information about the use of the doctrine in the future.
Sir Alan Beith said:
“Given the degree of concern which exists about the operation of joint enterprise, we say it is not acceptable for the main authorities in the criminal justice system to give such limited attention and priority to the recording and collation of fundamental information about the use of the doctrine. We also call for research to provide information covering the last five years, and for the CPS to monitor and analyse the way prosecutors are following the guidance in cases where the joint enterprise doctrine is used.”
Preliminary findings from Cambridge Institute of Criminology research provided to the Committee show that the proportion of Black and mixed race young men serving very long sentences for joint enterprise offences is much higher than their representation in the general population or the overall prison population.
Some witnesses to the inquiry used the metaphor of a ‘dragnet’ to describe the operation of joint enterprise, claiming that it was hoovering up young people from ethnic minority communities who have peripheral, minor or in some cases even non-existent involvement in serious criminal acts, along with the principal perpetrators of those acts, and imposing draconian penalties on them.
Sir Alan Beith added:
“Joint enterprise remains a highly controversial subject amongst lawyers, academics and others. We heard from campaigners who believe that it has resulted in widespread miscarriages of justice. At the same time review of the law will have to be handled carefully so as not to cause distress to victims and their families.
It is noticeable that Black and mixed race young men are disproportionately represented among those convicted under joint enterprise. Some have argued that the doctrine has an important effect in deterring young people from getting involved in criminal gang activities, but others are sceptical about this. We say in our report that there is a real danger in justifying the joint enterprise doctrine on the basis that it sends a signal or delivers a wider social message, rather than on the basis that it is necessary to ensure people are found guilty of offences in accordance with the law as it stands.”