Written by: Andrew Green
Tenuous evidence, unjustified inferences
Media and public reaction to the publication of the report of the Commons Justice Committee on 17 January 2012 on the joint enterprise law has been extensive. Those of us working in organisations which try to help victims of apparent miscarriages of justice have been aware of a trickle of joint enterprise cases for years, but recently the trickle has changed into a flood. The sheer numbers of cases led to the creation of Joint Enterprise: Not Guilty by Association (JENGbA), which aims to raise awareness of the numerous injustices caused by the application of this law, help its victims who are serving long prison sentences for crimes they did not commit, and if possible to change the law itself.
Why has this flood overwhelmed us? The development of what is no more than a common law doctrine through appeal decisions and judicial practice over the last two decades has been overtly policy driven, with the result that it has become an effective and valued policing tool. Investigations of serious crimes – typically murders – become the rounding up of a number of suspects, tenuously connected to the crime (they were present at the scene, they exchanged mobile phone calls with someone present or had some other loose connection). These suspects are threatened with serious charges, threats which are effective because the same tenuous evidence is sufficient not only for reasonable suspicion of possible involvement but for conviction itself. Some suspects may escape charges by implicating others. Other suspects may have no such bargaining assets to offer, due to ignorance of what happened. They may be tried and convicted. The crime is cleared up with little need for further investigation. Joint enterprise has rightly been called a ‘lazy law’.
Joint enterprise is a legal doctrine developed by the courts over more than 400 years but modified over the last two decades. In its modern form, it says that anyone involved with others in a joint criminal enterprise is responsible for any crime committed within the ‘scope’ of that enterprise by another member of the group, which she or he could foresee might be committed. The group member who does not directly commit the crime is guilty of the same crime as that committed by the actual perpetrator. There are many explanations of the doctrine available online – for example by Francis Fitzgibbon QC on www.thejusticegap.com HERE. All such explanations assume that the problems presented by this doctrine relate to degrees of culpability, and that everyone found guilty actually is guilty of something, although perhaps not of an offence as serious as that of which they were convicted. The Law Commission, the Justice Committee, judges, lawyers and legal academics endlessly chew over the problems of culpability. But this is far from being the most significant problem created by the use of the joint enterprise law or the cause of current concerns.
Most of those seeking help from JENGbA and its sister organisations told us that they were not guilty of any crime at all: that they were present at a crime scene but not associated with whoever committed the crime, that they did not know the crime might take place, that they were not present at all at the crime scene and knew nothing about the crime, or even that they themselves had been victims of serious assaults but had not retaliated, while their assailant had subsequently become involved in an unrelated fight as a result of which he had died.
Explaining why they thought they had been wrongly convicted, they consistently gave reasons which can be summarised in three categories.
- The evidence against them was tenuous and questionable.
- The inferences which juries were invited to draw from the evidence could not be justified.
- Their lawyers failed to explain the law to them, and seriously underestimated how easy it was for prosecutions to succeed in joint enterprise cases, resulting in failure to defend cases adequately.
To a limited extent these are already known problems. Many lawyers opine that in joint enterprise cases ‘the evidential bar to prosecution is set too low’ and that it is far easier for the prosecution to secure convictions in joint enterprise prosecutions than in more conventional prosecutions which rely on thorough forensic investigations. But beyond this, the territory of evidential sufficiency and case construction remains unexplored.
A close study of appeal decisions and their effect on how cases are investigated, prepared and tried exposes that it is the development of the doctrine that has resulted in the admission of tenuous evidence and enabled judges to assure juries that they may draw inferences of guilt from such evidence alone. The starting point of modern development is Chan Wing-Siu v The Queen  A.C. 168, 175 which introduced the simple requirement that evidence of foresight of what someone else might do in the course of a joint criminal enterprise is sufficient for conviction of a defendant for whatever crime is committed by the other person. Proving a defendant’s knowledge of the possible actions and intentions of someone else who might be no more than a casual acquaintance has become simple in our courts: the inference that presence at a crime scene, or a phone call at the relevant time, provided encouragement to a perpetrator, can be sufficient.
The Justice Committee’s principal recommendation is that consultation for legislation to clarify the joint enterprise law should be based on the Law Commission’s proposed draft:
‘[W]here two or more persons participate in a joint criminal venture, if one of them (P) commits an offence, another participant is also guilty of the offence if P’s criminal act falls within the scope of the venture. The existence or scope of a joint criminal venture may be inferred from the conduct of the participants (whether or not there is an express agreement).
It’s a dangerous starting point: the opportunity to draw epistemologically illegitimate inferences from tenuous evidence would be embedded in statute.
Perhaps legislation is not the way forward at present. The Justice Committee also asks the Director of Public Prosecutions to draw up prosecutorial guidelines, due to worries that the application of the law may be deterring witnesses from coming forward due to (very reasonable) fears that they may be prosecuted themselves. DPP Keir Starmer has promised to do so. Since the fear of prosecution can only be due to widespread knowledge of how easily innocent bystanders may be wrongly convicted of the most serious of crimes, we can only hope that at last the problems of evidential sufficiency and legitimacy of inference will at last be recognised.
If so, the grass roots campaigns and JENGbA in particular can claim credit for bringing these problems to the attention of the Justice Committee and hence to the DPP. We can only hope that he will acknowledge the mistakes of prosecutors in the past, consult JENGbA, and issue guidelines which will help to stem the current flood of miscarriages of justice.