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Clarity on joint enterprise

This week the Justice Committee published a report stating that 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. The Committee heard evidence from aggrieved families of people convicted of murder where someone else inflicted the fatal blow and at the same time recognised the need to control gang crime through legislation. Together with Frances Oldham QC, I recently successfully defended a woman in a murder where her partner left the house with a knife, pursued some people making a disturbance and stabbed one of them to death. The prosecution case was that she had joined in. The evidence was she came along sometime later and pulled someone’s hair. There was no direct evidence that she knew about the knife. For ordinary people, it is shocking that a woman could spend over a year in custody awaiting trial for pulling someone’s hair. For a lawyer making the decision to charge, the issue was the extent of her participation and foresight. Add to this the probability that this defendant would choose to give evidence and therefore probably assist in convicting the stabber and one can see how decisions to charge apparently peripheral people with murder are routinely made. Taking an alternative and recent example, imagine a group of racist thugs who hang out together, routinely carry knives and express the notion that those knives should be used to inflict serious harm on a black person. Suddenly you can see how a jury would conclude that each of the gang subsequently involved in a killing would be jointly guilty of murder. The decisions in each of these cases are not always easy to predict and all depend on the evidence at trial rather than a paper exercise.

The Justice Committee said: ‘Our primary recommendation is that the Ministry of Justice should take immediate steps to bring forward legislation in this area. We believe the problems to be sufficiently acute, however, that we also recommend the Director of Public Prosecutions issue urgent guidance on the use of the doctrine when charging. In particular, we would welcome guidance on the relationship between association and complicity, which is of vital importance in gang-related violence and homicides.’ In ordinary language, ‘complicity’ means you join in with baddies and ‘association’ means you mix with them. The problem is that the law on foresight of harm has to cope with the many and various ways that crimes can be committed by more than one person and that, in relation to murder, there no credible alternative to a charge of murder. If part of a gang did not foresee a killing then they are not guilty of murder. That they might have used or threatened unlawful violence may be an affray but this is rarely on an indictment, given the limited sentencing powers. Sorting out who did what and why has always been the task of a jury and legislation for a form of aggravated affray as an alternative might cure the situation but create other injustices. In the meantime, it’s hard to see how the DPP can issue guidance without simply stating that where there is evidence of participation people should be charged and not otherwise which would amount to no more than the current state of the law. He will be hard pressed to say – those who didn’t do much we won’t charge as the detail often comes out in the trial. The Justice Committee have indicated that something should be done but, given recent criticisms of Parliamentary drafting by the Lord Chief Justice it will be interesting to see what.

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Felicity Gerry QC Posted by on January 24, 2012. Filed under Crime,Miscarriages of justice. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

6 Responses to Clarity on joint enterprise

  1. Anonymous Reply

    January 28, 2012 at 5:48 pm

    Liked your article. G.B.A is the area in particular requiring clarification. President Obama was himself subject to an attempt to slur his character in his election campaign by associations with questionable associates, but it simply didn’t wash with the American people. Whatever your views on that subject, that’s fine as long as they are of universal application regardless of rank, or social class. Present inconsistency of the application of guilt by association is a principle issue that requires clarifying, but by no means the only one.
    Joint Enterprise origins first appear in British law in (1846) R v Swindall and Osborne , if this same example were to appear today, perhaps the charge would be; Death by dangerous driving, or reckless endangerment .The point is that a murder charge would be impossible to make, from those same circumstances in modern Britain. If you agree with the former? Then the doctrine must at some stage between 1846 -2012 “mutated “into its current form and use? The law appears to have taken the legal principle from that example as a sound principle to justify the current doctrine, with no account of the fact; that if that legal principle is correct, then why if that same horse and cart race that ended in a fatality were to happen today under the same circumstances, wouldn’t they be able to be convicted someone of murder if that principle is sound? The president cannot be a valid part of legitimacy merely by taking one part of its concepts and abandoning the other. The doctrine stands or falls in its entirety in my view. How can validity of logic be apparent when the whole premise is a flawed hypothesis?

    • Tmylavaganam Reply

      February 9, 2012 at 10:54 am

      foresight in those circumstances has to equate with mens rea it is not a means by which to undermine the primary requirement ?

      • Willday2007 Reply

        February 17, 2012 at 12:45 pm

        Yes Sir, but understand that it is those very principles that are in question. The law has an obligation to accurately describe or clarify what definition constitutes any given offence, in the case of some Joint Enterprise cases, it has failed in that duty. Thereby, it could be argued intent or foresight could not be attributed in the absence of any such legal definition?

  2. Anonymous Reply

    January 28, 2012 at 6:33 pm

    Liked your article. G.B.A is the area in particular requiring clarification. President Obama was himself subject to an attempt to slur his character in his election campaign by associations with questionable associates, but it simply didn’t wash with the American people. Whatever your views on that subject, that’s fine as long as they are of universal application regardless of rank, or social class. Present inconsistency of the application of guilt by association is a principle issue that requires clarifying, but by no means the only one.
    Joint Enterprise origins first appear in British law in (1846) R v Swindall and Osborne , if this same example were to appear today, perhaps the charge would be; Death by dangerous driving, or reckless endangerment .The point is that a murder charge would be impossible to make, from those same circumstances in modern Britain. If you agree with the former? Then the doctrine must at some stage between 1846 -2012 “mutated “into its current form and use? The law appears to have taken the legal principle from that example as a sound principle to justify the current doctrine, with no account of the fact; that if that legal principle is correct, then why if that same horse and cart race that ended in a fatality were to happen today under the same circumstances, wouldn’t they be able to be convicted someone of murder if that principle is sound? The president cannot be a valid part of legitimacy merely by taking selective parts of its concepts and abandoning inconvenient others. The doctrine stands or falls in its entirety in my view. How can validity of logic be apparent when the whole premise is a flawed hypothesis?
    IN THE EXAMPLE OF THE HORSE AND CART RACE RESULTING IN A DEATH
    There is no “mens rea” to convict of murder, there is no intent. There is however foresight, but is possible foresight enough? Recent legal principles of authority say yes. So given that the modern day equivalent is when a person in a car race causes a death, why then don’t they get charged with murder? As I say; universal application and consistency of rationale. You simply cannot have it both ways.

  3. atul bannil Reply

    January 30, 2012 at 8:16 am

    Excellent article. What may assist is for the police to have actual training in investigation not with the purpose of simply getting a conviction but with the purpose of finding out the truth. Too often innocent people are caught up in a web of destruction. This lead to the destruction of the their lives and the lives of their families.
    Women in particular are vulnerable when faced with a police force run by men for men and courts run by men for men. . Male police officers are incapable of understanding what motivates a woman or appreciate how she responds to interrogation. We need police officers trained as real investigators not motivated by how many people they can get convicted.

  4. Anonymous Reply

    February 1, 2012 at 4:06 pm

    Thought provoking article. The law on joint enterprise is confusing. The eco-activists trial collapsed when uncover police officer Mark Kennedy was exposed as using a false identity to give evidence in court. Kennedy used the name Mark Stone with ID documents to go with it. The Met Police Chief has made it clear that it is not illegal for police to use totally false identities in Court to give evidence http://www.guardian.co.uk/uk/2011/oct/27/met-police-activists-fake-identities Whilst everyone would agree undercover officers need to use false identities and have Identity documents to go with it I wonder what would happen to the proverbial Mr or Mrs Smith if they used False identities in Court?

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