Why joint enterprise is unfair and needs changing

I welcome the House of Commons Justice Committee’s call for an urgent review of the law and practice concerning joint enterprise. This is the doctrine that allows several people to be prosecuted for an offence without differentiating their roles and culpability. The committee’s previous report in 2012 led to the Crown Prosecution Service’s publication of a guideline for prosecutors.

This supplemental report expresses increased rather than diminished concerns.

For me, it is a personal and professional hope that the law in this area is a step closer to being changed. Personal because the law on joint enterprise, or rather legal principle as it is not enshrined in legislation, contributed to one of the worst days of my 13-year professional career.

Exactly two years ago, I stood in tears outside Wood Green Crown Court, having just left my 16-year-old client, one of four teenage black males of previous good character, in the cells facing a three-year custodial sentence for GBH. Some 18 months earlier, he had been part of an altercation at Hendon tube station.

He was guilty of common assault, even ABH, and certainly affray. All of these were offered as guilty pleas to the prosecution. However, they were rejected on the basis that joint enterprise would convict a group of the more serious offence of GBH.

CCTV footage shows my client was as far as 20 feet away from the victim at the time he was stabbed. However, my client was convicted of section 18 GBH on the basis that it was ‘reasonably foreseeable’ that others might get involved when he punched the complainant and that ‘serious harm might’ result, irrespective of whether that was what he intended. My client was 14 at the time of the incident and I am convinced could not have forseen that his action could have led to the ultimate outcome which resulted.

Looking at the CPS guideline published since then, I am hopeful, but not convinced, that a review on the same facts would lead to a different result. Consideration of the judge’s directions for the jury outlined in the Crown Court Bench Book is equally problematic for young people.

The joint enterprise directions fail to take into account the immaturity of most young people and almost inevitably lead to a conviction on the basis of joint enterprise, with even peripheral involvement amounting to presence or being capable of lending support. This makes the principle of joint enterprise the lazy prosecutor’s dream. 

There is no need to consider the differing roles or culpability, so long as it can be shown that at some level, spoken or unspoken, planned or on the spur of the moment, they acted in concert. Guilt by association is a hard lesson for a young person to carry through life without feeling hard done by and perhaps disrespectful of the law, which their experience or the experience of those around them perceives as unfair.

The principle of joint enterprise is often used in the most serious cases and therefore ones carrying serious sentences with all the consequences that flow from that. The Justice Committee is particularly concerned with the use of the joint enterprise principle in cases of murder, where there is no opportunity for a jury or judge to distinguish between different roles and culpability on conviction or sentence.

The committee makes several recommendations, including that various participants in the criminal justice system should collate and publish relevant data for cases concerning joint enterprise, to enable a discussion and review of the law to take place on a sound factual basis. This can only bode well for the future of the law in this area.

Meantime, I am still in touch with my client and his family, such was the profound way his conviction and the terrible impact on his prospects affected me. The first thing I thought of when I woke up on Christmas Day 2012 was him and his mother.

I did the same on Christmas Day 2013.  When I speak to her this year I am pleased to say I will have some good news for them both as a result of the committee’s recommendations.

Sandra Paul is a solicitor in the criminal law team at Kingsley Napley