More clarity needed in joint enterprise cases, finds Birkbeck/PRT report
Institute for Criminal Policy Research (ICPR) of Birkbeck and Prison Reform Trust collaborate on research report
Much greater clarity and transparency are needed in the prosecution of “joint enterprise” cases, a research report by the Institute for Criminal Policy Research (ICPR) of Birkbeck, in partnership with the Prison Reform Trust, has found.
Joint enterprise is a doctrine of criminal law which permits two or more defendants to be convicted of the same criminal offence, even where they had different types or levels of involvement.
In a landmark judgement in February, the Supreme Court ruled that the law had taken “a wrong turn” with respect to joint enterprise 30 years ago, which now required “correction”. The Court of Appeal is currently considering a number of test challenges which could have implications for hundreds of people in prison convicted under joint enterprise.
The study, funded by the Nuffield Foundation, aimed to find out how the doctrine was used in the prosecution of serious offences. The study entailed analysis of a sample of 61 Crown Prosecution Service (CPS) case files and associated court transcripts of prosecutions carried out under joint enterprise. The study was conducted by Dr Jessica Jacobson and colleagues at ICPR. It was guided by an independent expert advisory group and the report was approved by critical readers.
In recent years there has been growing controversy over the doctrine of joint enterprise, with strong criticisms voiced by lawyers, members of the judiciary, academics, politicians and penal reformers, as well as by individuals prosecuted in joint enterprise cases and their supporters.
These criticisms focused on what was said to be the potential for individuals to be convicted and sentenced under the doctrine for the most serious offences, on the basis of highly peripheral involvement.
It was argued that joint enterprise operated as a kind of criminal justice “drag-net”, sweeping up large numbers of young people (often from black, Asian and minority ethnic (BAME) groups) into criminal prosecutions on the basis of their social networks and associations, rather than active involvement in criminality.
Of the 61 joint enterprise cases sampled in the report, 34 involved allegations of robbery, 15 allegations of section 18 assault and 12 allegations of murder. Almost two-thirds of the 157 defendants in the sampled cases were aged under 25. Of defendants for whom ethnicity was known, around two-thirds were from minority ethnic groups and over 40% were black.
Based on a detailed analysis of the sampled cases, the report says that there is an “urgent need” for greater clarity in the prosecution of joint enterprise cases. “Even if the Supreme Court judgment goes some way towards simplifying the law on joint enterprise,” it says, the way in which different types of liability under joint enterprise are applied in serious cases “remain complex in terms of both legal doctrine and practical effect.” The report highlights as a key concern the fact that “there are currently no provisions for routine recording and monitoring of cases involving forms of joint enterprise”.
To enhance clarity and transparency, the report calls for routine recording and monitoring of cases involving joint enterprise; and for improved Sentencing Council guidance for judges dealing with multi-defendant cases. It also calls for the development of a new terminology to replace the “now toxic phrase ‘joint enterprise’”.
Commenting, Dr Jessica Jacobson said:
“At this time of significant change to the joint enterprise doctrine, there is more urgency and more opportunity associated with the task of making the prosecution process clearer and more transparent.
“Success in this task will increase the chances that individuals involved in multi-defendant cases – whether as defendants, witnesses, victims or family members – will understand how the prosecution process works and, potentially at least, will view it as legitimate. Clarity and transparency are also of critical importance to criminal justice practitioners, who can only apply the law in a fair and consistent manner if they have a common understanding of it and knowledge of how it is working on a day-to-day basis.”
'Joint Enterprise: Righting a Wrong Turn?', is available online here.
The following are the recommendations for enhancing clarity and transparency in the prosecution of joint enterprise cases:
Charging decisions and recording
1. The CPS should ensure that, in all cases in which multiple defendants are charged with the same principal offence, the alleged basis of liability is identified and recorded on file. This should entail recording:
a) whether each defendant is charged as a principal, accessory or either;
b) for each defendant charged as a (possible) accessory, the basis of this.
2. Recording of alleged principal and/or accessorial liability should be updated where charges are amended and (if applicable) at point of conviction.
3. A review should be undertaken to support the trialling and development of the new charging and recording process outlined above, and to monitor prosecutions.
Communications
4. As part of current development of the Common Platform for digital management of case information across the criminal justice system, provision should be made for collation and publication of national figures on cases in which multiple defendants are convicted of the same principal offence.
5. Better identification and recording of the basis of liability as alleged against each defendant should help to ensure that practitioners fulfil their existing obligations to keep defendants and complainants fully informed about charges.
6. The Sentencing Council should issue guidance to judges on appropriate ways to cover issues of principal and accessorial liability in the delivery of sentencing remarks.
7. The courts, the CPS and other bodies should avoid use of the now toxic phrase ‘joint enterprise’ in future, and consideration should be given to the development of an alternative terminology.
Sentencing
8. The Sentencing Council should consider providing guidance on the sentencing of multiple offenders whose specific roles with respect to the offence(s) are not known.
9. In passing sentence, judges have limited capacity to reflect differing levels of culpability of defendants convicted of murder on an accessory basis. The mandatory life sentence for murder should be reviewed.
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