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The Justice Select Committee has called on the government to carry out an “urgent review” of the joint enterprise law in murder cases, saying it has growing concerns that the common law doctrine may be causing injustice.
Using new evidence about the doctrine from the Bureau of Investigative Journalism, as well as academics and campaigners, the select committee has today published the findings of a second inquiry. It is three years since it first examined joint enterprise. “In light of the evidence we have heard in this inquiry, and the other developments which have taken place since our previous report, our disquiet at the functioning of the law on joint enterprise has grown,” the committee says.
Joint enterprise is a doctrine of common law that was developed by the courts to allow more than one person to be charged and convicted of the same crime. It can be applied to many different scenarios, but the committee’s inquiry focuses on cases in which two or more people participate together in one crime and in the course of it, one of the group commits a second crime which the other(s) foresaw he might commit. When this involves murder, joint enterprise does not require proof that the defendant intended someone to die or that they directly took part in causing the death. The prosecution only has to prove that the defendant foresaw that one of the group they were with might intentionally cause someone else serious bodily harm, and then the defendant can be found guilty of murder.
In recent years this”‘foresight test” has led to the concerns that people too far removed from the actual murder are being sentenced to life imprisonment.
“There are clearly cases in which joint enterprise is necessary to ensure that guilty people are convicted,” said Sir Alan Beith MP, chairman of the committee. But he said the committee had a growing sense that people were “dragged” into a serious offence when they were only remotely connected to a crime.
“We are particularly concerned about joint enterprise in murder cases,” he added. “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.”
He has called on the government to initiate a Law Commission review of the doctrine’s use in murder cases as a “matter of urgency”, looking particularly at whether the threshold of culpability for secondary parties is too low.
Earlier this year the Bureau released the results of an eight month in-depth investigation into joint enterprise, which produced the first comprehensive picture of how often the doctrine has been used in homicide prosecutions. Between 2005 and 2013, at least 1,800 people and up to 4,590 have been prosecuted for homicide using joint enterprise. This represents at least 17.7% of homicide prosecutions between 2005 and 2013. This evidence is heavily drawn on in the committee’s report.
Until the Bureau’s research, there was no data on how often the doctrine was being used, as no official records are kept. Sir Alan said the government’s failure to collate proper data on joint enterprise prosecutions was unacceptable.
But the committee says “that merely improving the amount of information available is not sufficient, and further steps need to be taken urgently to address the problems which have arisen with the application of the doctrine.”
The Cambridge Institute of Criminology also supplied evidence that joint enterprise disproportionately affects young black and mixed race men, and the committee warns against using joint enterprise as a tool of social policy. “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,” Sir Alan Beith said.
The committee also heard from the campaign group Jengba, which represents hundreds of people charged under joint enterprise, as well as the director of public prosecutions Alison Saunders, Victim Support and Saj Tufail, whose son was murdered in a joint enterprise attack.
Responding to today’s report, the Ministry of Justice promised to “look carefully” at the committee’s recommendations and said it would make a formal response “in due course”. But the government stressed joint enterprise has a vital role to play in the justice system. Penning said, “Joint enterprise law has enabled some of the most serious offenders to be brought to justice. It ensures that if a crime is committed by two or more people, all those involved can potentially be charged and convicted of that offence. Sentencing in individual cases is a matter for the courts.”
A CPS spokesperson said: “We are satisfied that prosecutors are applying the guidelines correctly but we recognise that more comprehensive data from the Ministry of Justice, as recommended by the committee, would enable us to gather an even clearer picture of all the issues surrounding joint enterprise cases. Beyond this, any changes to the law are a matter for government and parliament.”
The Committee recommends:
Related story: Read the report – Joint enterprise an investigation