The law on joint enterprise was ‘so confusing for juries and courts alike’ that legislation was necessary to ensure justice for both victims and defendants and end the high number of cases reaching the Court of Appeal, according to a new report by MPs out yesterday. Illustration: Sehb Hundal.

Sir Alan Beith, chair of the Justice Select Committee, said that the law of joint enterprise was ‘vital’ to combat gang-related violence but was ‘so complex’ that juries might find it impossible to understand how to reach the right verdict.  He urged the issue be resolved prior to a general review of the law of homicide (‘which few governments would be willing to undertake’).

The doctrine of ‘joint enterprise’ means that anyone who agrees to commit a crime with another person becomes liable for everything that person does during the offence.

Gloria and Jimmy McGovern at JENGbA launch (Pic: Andrew Green)

 

The MPs have called upon Keir Starmer, the Director of Public Prosecutions, to produce guidance for prosecutors on joint enterprise particularly in relation to gang killings. ‘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.’

At the end of last year, five teenagers were given sentences of detention for killing 15-year-old Zac Olumegbon, stabbed to death as he arrived at school in south London in July 2010. Speaking after the case, Det Ch Insp John McFarlane said that the case ‘must act as a deterrent to other young people who think they will not be prosecuted or go to prison just because they did not deliver the fatal blow’. ‘The law on joint enterprise is clear and unforgiving – if you are with the knifeman in a murder case you too could be found guilty and sent to prison.’

The MPs took evidence from witnesses representing offenders who claim they have been wrongly convicted, those who represent people who have lost family members through gang attacks and others who ‘told us that they believed the current law on joint enterprise was leading to miscarriages of justice’.

  • The Prison Reform Trust was concerned that joint enterprise might be used ‘disproportionately in cases involving children and young adults’ and could act as ‘a drag-net, bringing individuals and groups into the criminal justice system who do not necessarily need to be there’.
  • Gloria Morrison, from the campaigning group JENGbA (Joint Enterprise Not Guilty By Association), argued that the ‘complexity of the law presented serious difficulties for juries’. ‘The juries often come back to the judge to say: “We don’t want to convict this person.” They are very confused. They can see who is culpable and they do not want to do it. The judge will say: “No; it’s a joint enterprise. You have to convict or acquit.”’ She reported that one case the jury received ‘a 49-page route to verdict’.
  • Jean Taylor of Families Fighting for Justice, a campaign group seeking to ensure prosecutions in cases of unlawful killing, argued that ‘the lack of clarity over joint enterprise led to it being inconsistently applied’. In some cases, she told MPs people were ‘taken in just for standing by and watching’ and in other cases ‘a group or gang has been allowed to walk free…they have not been charged with joint enterprise.’
  • The Committee on the Reform of Joint Enterprise (CRJE), ‘an ad hoc collection of lawyers, academics and otherwise concerned individuals and groups’, told the MPs joint enterprise and the mens rea for murder contradicted ‘three fundamental principles’ of criminal law: in the absence of a clear mental element for liability, it imputed intention or foresight; the ‘perilous slope’ involved in guiding juries on joint enterprise; and there being no connection required between the defendant and victim’s death, their guilt is ‘constructed from a wide range of precarious bases—essentially his association with the person who actually committed the murder’. This results, the CRJE concluded, with ‘the labelling of individuals who—albeit not entirely innocent—cannot properly be called “murderers”.’

Conclusions and recommendations:

  • Data on the number of joint enterprise cases and appeals needed to be collated.
  • The CPS and 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’.
  • Over-charging under joint enterprise would ‘not assist the task of those trying to deter young people from becoming involved in gangs’.
  • The DPP should issue guidance ‘on the proper threshold at which association potentially becomes evidence of involvement in crime’.
  • The lack of clarity over the common law doctrine on joint enterprise is ‘unacceptable’ for such an important aspect of the criminal law. It should be enshrined in legislation.
  • Clarification should not have to wait for a Government to embark on wider and potentially controversial changes to the law on homicide.

 

Interview: Gloria Morrison, from the campaigning group JENGbA (Joint Enterprise Not Guilty By Association)

Gloria Morrison’ became involved as a result of the experience of her son’s best friend. Nearly six years ago Kenneth Alexander was given a life sentence. Alexander and her son went to the same secondary school. When they left school, Gloria’s son started work for an electrical firm and Alexander joined him shortly after. Alexander is a convicted murderer as a result of his part in the April 2005 stabbing death of Michael Campbell. His case was the subject of a recent BBC Panorama (Lethal Enterprise). ‘It was Alexander’s role in ringing friends to call in reinforcements for a possible confrontation that provided the prosecution with his joint enterprise. That he knew some of his mates carried knives, even though he never did, was also a factor in his conviction.’

What does Gloria Morrison make of this new report? ‘We hope they go further. This archaic law needs further debate and a full enquiry. We want it abolished. We are encouraged that they have listened to our concerns and that those concerns have been put into a directive to the Director of Public Prosecutions. Urgency is important because it will stop further miscarriages of justice happening.’

What does she say to people who argue that these convictions send out a strong message to young people getting involved in gangs and carrying knives? ‘We are not talking about gangs. We are talking about groups of young people who are together. The idea that this is to tackle gangs is a misunderstanding. If it was successful at tackling gangs, the law would be working. This law is not working.’

Why did get involved in Alexander’s case? ‘Ken was like most people who get caught up in the “joint enterprise” situation. He took the duty solicitor and didn’t know if this man had any experience. He was part of a really cut-throat defence. Everybody was blaming everybody else. No-one owned up. From the moment Ken found out that he was convicted of murder, he like everyone else was just totally bewildered. That’s the point when I got involved. I phoned his solicitor up and I said: “how do we appeal?” He explained that you can’t appeal because you do not like the decision. Since then Ken has been moved from one prison to another. He’s a model prisoner. He doesn’t need the offending courses because he hasn’t done an offence. He is a lovely boy.’

As part of London against Injustice, Morrison put an advertisement in Inside Time calling for calling for prisoners convicted under joint enterprise and their families to attend a meeting. What was the response like? ‘Overwhelming. We booked a room for 60 and in a couple of weeks we needed a bigger room. People were standing. People realised that they were not alone. Everyone say people in prison will say that they’re innocent. The thing about ‘joint enterprise’ convictions is that it affects families so deeply. Everybody is so clear that there is a huge sense of injustice. Some 275 prisoners have contacted us. We believe it is the tip of an iceberg. The problem is bigger because this law has been used so sweepingly over the last 10 years.’

What does she think of the recent ruling in the Supreme Court where a teenager, who took part in a gunfight during which an innocent passer-by died, was guilty of murder – even though he did not fire the fatal shot (see HERE)? ‘I’m not a lawyer. I’m a campaigner.  Two guys shooting at each other in the streets, they are idiots and if somebody gets killed they should be responsible. But the fact that they called it a “joint enterprise” was wrong. They were not engaged in a ‘joint enterprise’ with the same foresight and intent.  They were trying to kill each other. The ruling muddies the waters even further. We have people with absolutely no involvement with a crime  – none – doing a life sentence.’

 ‘I have visited many families and prisoners and am struck by the simple fact that these are decent people whose lives have been destroyed by this archaic law. A law that is so out of touch with modern society, that it targets the most vulnerable and marginalized in that society. Children and adults with learning difficulties, women in abusive relationships, young men on the periphery of a spontaneous act of violence, people convicted on hearsay as their co-defendents have turned Queens evidence. And most worryingly cases where people are taking a plea of a lesser charge such as manslaughter because the police tell them they will be found guilty under joint enterprise if they don’t.’ Gloria Morrison, from a talk to the Haldane Society HERE.

 

 

Profile photo of Jon Robins About Jon Robins
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award

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4 Comments

  • Anonymous July 1, 2012 9:02 pm

    These are the issues of primary concern.
    Given the case that the “Scope “of the doctrine does not have its end tied, culpability could stretch far beyond the boundaries of common sense (so where is the line of culpability?).The line of culpability exists within the “interpretation “of legal precedence. Interpretation of legal precedence is the sole responsibility in the opinion of the judge. However, the doctrine as it is applied presupposes a felony was present, or put another way; a common plan was present to do some illegal act, and that underlying act was in some way a contributory factor in the causation of the death? (The CPS informs us that the necessary test criteria have been met, or the person would not have been charged? But “what if” that means the likelihood of a conviction is met, rather than evidential considerations?)Whilst the jury are often told that the prosecution do not have to produce a signed agreement to prove an agreement DID exist, they (the law) are not so forthright in stating “exactly what DOES constitute an agreement? “WHEN NO CLEAR EVIDENCE EXISTS OF ANY AGREEMENT, THE CASE SHOULD COLLAPSE, BUT THE REALITY IS, THAT IT OFTEN DOESN’T, AND THERE LIES THE FALLACY OF SOME J/E CONVICTIONS”
    Strong fears exist that the antecedent was never established in confirming the consequent, and that what may have happened in the jury’s mind, was the fallacy of the converse error? The analogy of the getaway driver presented to the jury is often the wrong one, thereby misleading and confusing the jury into affirming the consequent?
    The robber should have foreseen escalating violence and is therefore culpable for the death? Yes perhaps he is, but we never established he was a robber did we?
    He was hanging out in a group, lent himself to that company, one of that group killed; therefore they are all in it together? That’s Guilt by Association with no proof of a common intention.
    WHERE IS THE LEGAL TEST FOR SAFEGUARDING AGAINST THE MISAPPLICATION OF THE DOCTRINE?
    Sir Patrick Devlin, writing in 1956, who said (Hamlyn Lectures, “Trial by Jury”, pp 160, 162), that the leaving of the last word to the jury was
    “An insurance that the criminal law will conform to the ordinary man’s idea of what is fair and just.”
    “If it does not, the jury will not be a party to its enforcement” …. The executive knows that in dealing with the liberty of the subject it must not do anything which would seriously disturb the conscience of the average Member of Parliament or of the average juryman. I know of no other real checks that exist today upon the power of the executive.”
    THE JURY NEED TO BE TOLD OF THEIR RIGHT TO NULLIFY A MISAPPLIED LAW!
    According to proper constitutional law the jury “DO” have that right to nullify the law, yet the jury’s sworn oath to apply the law to the facts of the case set aside any provision to test the law itself. If a jury member says that he thinks a jury should also judge the law, and/or its application he is typically expelled from the jury, contrary to proper Constitutional law. Never was this principle more important than in the cases of constructive culpability such as Joint Enterprise as it is applied to secondary parties. When culpability for one crime is the foundation for the greater culpability of the substantive offence, then it is” VITAL “that the jury “TEST” the foundation itself. If the foundation premises are as sound as the law would have us believe, then there won’t be a problem, will there? Manslaughter should also be available on the indictment. The merger doctrine operating in the U.S would be unlikely to allow principles in a murder to be tried under Joint Enterprise, as statutory provisions already exist under a strait forward murder charge, but because J/E often subverts considerations of manslaughter, and the lesser “mens rea” available to secure a murder conviction through a J/E trial it is a favoured route for prosecutors (lazy law). This lesser “mens rea” would not be enough in a strait forward murder charge to secure a murder conviction. Safeguards against injustice must be addressed, who better than the jury?
    Why should the jury be forced to act against their conscience if they view the law to have been misapplied? Jury confusion indeed!
    A fair trial is all I ask.

  • william day July 3, 2012 7:11 pm

    These are the issues of primary concern.
    Given the case that the “Scope “of the doctrine does not have its end tied, culpability could stretch far beyond the boundaries of common sense (so where is the line of culpability?).The line of culpability exists within the “interpretation “of legal precedence. Interpretation of legal precedence is the sole responsibility in the sole opinion of the judge. However, the doctrine as it is applied presupposes a felony was present, or put another way; a common plan was present to do some illegal act, and that underlying act was in some way a contributory factor in the causation of the death? (The CPS informs us that the necessary test criteria have been met, or the person would not have been charged? But “what if” that means the likelihood of a conviction is met, rather than evidential considerations?)Whilst the jury are often told that the prosecution do not have to produce a signed agreement to prove an agreement DID exist, they (the law) are not so forthright in stating “exactly what DOES constitute an agreement? “(Since a clear definition of what constitutes an agreement in definitely not clear, the CPS reassurances are, in truth, worthless rhetoric. Had they said that they were not sure but they were duty bound to let the jury decide, then that would have held some credibility, but still unacceptable.) WHEN NO CLEAR EVIDENCE EXISTS OF ANY AGREEMENT, THE CASE SHOULD COLLAPSE, BUT THE REALITY IS THAT OFTEN IT DOESN’T, AND THERE LIES THE FALLACY BEHIND SOME CONVICTIONS”
    Strong fears exist that the antecedent was never established in confirming the consequent, and that what may have happened in the jury’s mind, was the fallacy of the converse error? The analogy of the getaway driver presented to the jury is often the wrong one, thereby misleading and confusing the jury into affirming the consequent?
    The robber should have foreseen escalating violence and is therefore culpable for the death? Yes perhaps he is, but we never established he was a robber did we?
    He was hanging out in a group, lent himself to that company, one of that group killed; therefore they are all in it together? That’s Guilt by Association with no proof of a common intention.
    WHERE IS THE LEGAL TEST FOR SAFEGUARDING AGAINST THE MISAPPLICATION OF THE DOCTRINE?
    Sir Patrick Devlin, writing in 1956, who said (Hamlyn Lectures, “Trial by Jury”, pp 160, 162), that the leaving of the last word to the jury was
    “An insurance that the criminal law will conform to the ordinary man’s idea of what is fair and just.”
    “If it does not, the jury will not be a party to its enforcement …. The executive knows that in dealing with the liberty of the subject it must not do anything which would seriously disturb the conscience of the average Member of Parliament or of the average juryman. I know of no other real checks that exist today upon the power of the executive.”
    THE JURY NEED TO BE TOLD OF THEIR RIGHT TO NULLIFY A MISAPPLIED LAW!

  • William Day July 10, 2012 7:45 pm

    Secondary Concerns (Are That of Degree?)
    (S.1)
    The bank robbers all agree to take shotguns with them to facilitate their crime. However, they also all agree that none of the shotguns will be loaded, less a death occurs. During the robbery a brave captive challenges a robber. During that altercation the captive is punched and during his fall strikes his head on the marble floor causing his death. Eventually caught, all are charged with murder under J/E.
    ————————————————————————————————————————-
    (S.2)
    Two boys enter newsagents where the shop keeper is slow to appear from behind the accompanying back room therein. Seizing the opportunity one of the boys quickly fills his pockets with sweets, but said boy is unaware that a customer has seen what was happened from outside and enters the newsagents. He then attempts to apprehend the boy. The boy resists, and in the ensuing struggle the Good Samaritan is pushed back by the thief into a glass cabinet. The cabinet brakes and glass severed his carotid artery resulting in his death. Both boys are charged with murder under J/E.
    —————————————————————————————————————————-
    (S.1)
    In delivering the judgment of the Court of Appeal Lord Parker C.J. accepted, at p. 118, the principle formulated by Mr Geoffrey Lane Q.C. (Lord Lane) on behalf of Morris:
    “where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but (and this is the crux of the matter) that, if one of the adventurers goes beyond what had been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorised act. Finally, he says it is for the jury in every case to decide whether what was done was part of the joint enterprise, or went beyond it and was in fact an act unauthorised by that joint enterprise.”

    If the fundamental difference rule does not apply, and/or they cannot be shown to have withdrawn? “THEY WILL BE GUILTY OF MURDER “and that is as it should be. However, this may be true in the context of an armed bank robbery because of the inherently dangerous nature of the primary enterprise (armed robbery) where foresight “does” dictate great uncertainty of harm to others. Therefore, an unexpected harmful outcome can “sometimes “still justify a murder conviction for secondary parties. However, like any legal precedent, it should only be applied “ALL THINGS BEING EQUAL” Legal precedence is only as good or as fair as its applier.
    (Common Sense Trumps Common Law)
    (S.2)
    (D.1 Perpetrator) (D.2 alleged accessory whose situation I have covered in my previous post)
    Since the crime involving D1 was spontaneous and not inherently violent, (stealing sweets) notwithstanding a violent however unusual outcome from stealing sweets, foresight and/or intention cannot so easily be established as in the case of the armed bank robbers . Can Lord Lane, or indeed other similar precedence be justifiably applied to S.2 D.1? We appear to have the mental state of recklessness for D.1 S.2; this is in stark comparison to that of the bank robbers? Should the lesser culpability reflected in scenario 2 D.1 go towards mitigation or justification? Some U.S States require a minimum of extreme recklessness for a murder conviction. Surely S.2 D.1 is a case of manslaughter and not murder, yet J/E could and often does, secure questionable murder convictions on a lesser “mens rea ”than one might expect, and that is very worrying? Again I say to you; to describe to the jury D.1 in S.2 as “like the armed robber” simply wouldn’t wash, because it is a gross misrepresentation of the facts. Yet, D.2 in scenario 2 will often be described as the getaway driver, and the judge often does nothing to correct this substantial and damaging misconception. Again the answer is that if the jury view a murder charge inappropriately applied by the law, they should be instructed that they have the right to NULLIFY THAT LAW If they view it as wrongly applied.That option should be on their route to verdict.
    Moving across the water to Illinois, note a Supreme Court ruling; People v. Perez, 189 Ill.2d 254, 725 N.E.2d 1258 (2000) (Google it) as a sound cautionary note when applying J/E to secondary parties, it is by far the best reasoning i have ever heard.

    Finished.

  • Dot Tooting August 15, 2014 9:45 pm

    It cannot help to bring together the state and the people if the people see that the state has the power to take their liberty, even if they have not planned, nor executed violence that leads to someone’s death.
    This is a thrown together and shambolic law and if it were to be applied to a bunch of bankers whose behaviour led to the suicide of another then I am pretty positive that joint entrprise would soon be dismissed.
    wrong wrong wrong….ashamed of our country!

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