Joint enterprise law too ‘complex and confusing’

The law on joint enterprise is so confusing for juries and courts alike that legislation is needed to ensure justice for both victims and defendants and end the high number of cases reaching the Court of Appeal, a new Justice Select Committee report has concluded.

The Joint Enterprise report, published this week, called on the Ministry of Justice (MoJ) to take immediate steps to bring forward legislation on secondary liability whereby a person who agrees to commit a crime with another becomes liable for all criminal acts committed by the other person.

MPs expressed “surprise” at the fact that no record is made of the number of people charged under joint enterprise every year, or the outcomes of those cases. The report concluded that the doctrine is being applied inconsistently, together with the high number of cases involving joint enterprise being heard in the Court of Appeal, the committee said it would have expected such data to have been collated to build a clear picture of the number of charges, convictions and appeals involving the joint enterprise doctrine.

Sir Alan Beith, chair of the Justice Select Committee, said: “This area of law is vital to ensuring the prosecution and conviction of criminals involved in gang-related violence in particular, but is now so complex that juries may find it impossible to understand how to reach the right verdict. This issue should not wait for a general review of the law of homicide which few governments would be willing to undertake.”

The report added that joint enterprise should be enshrined in statute to ensure clarity for all involved in the criminal justice system.

In addition, the report called on the Director of Public Prosecutions (DPP) to produce guidance for prosecutors on joint enterprise, particularly in cases of gang-related homicide.

MPs drew a number of conclusions including the difficulty in applying the law on joint enterprise which presents courts with such difficulties that cases are regularly reaching the Court of Appeal, and even the Supreme Court. The way joint enterprise is currently used could also lead to over-charging which the report says will not assist the task of those trying to deter young people from becoming involved in gangs. It may also deter potential witnesses to an offence who fear that they might be charged under joint enterprise if they come forward, impeding the justice process.

The report added that the lack of clarity over the common law doctrine on joint enterprise is unacceptable for such an important aspect of the criminal law.

“The law on joint enterprise has a role in deterring young people from becoming involved in gangs but confusion over the law and how it works can put vital witnesses in fear of coming forward, allowing the real criminals to escape justice. It is also important to ensure that young people are not unnecessarily brought into the criminal justice system when they are on the edge of gang-related activity,” added Sir Alan.

The Justice Select Committee recommended that the DPP collects data on the number of people charged under joint enterprise so that problems with the operation of the law identified by campaigning groups representing both victims and those that say they have been convicted in a miscarriage of justice can be alleviated.

The Justice Select Committee made a number of recommendations to address the issues including:

•Data on the number of joint enterprise cases, and the number of appeals, should be collated;

•the Crown Prosecution Service and the police should have in mind that it is not the purpose of the law of joint enterprise to foster gang mentality or draw people into the criminal justice system inappropriately;

•the DPP should issue guidance on the proper threshold at which association potentially becomes evidence of involvement in crime. Such guidance should deal specifically with murder, although such guidance will not assuage the concerns of some witnesses;

•the