Two thirds of defendants in ‘joint enterprise’ cases came from ethnic minorities and same proportion was under 25 years old, according to a new study. Campaigners have long criticised the common law doctrine, which allows two or more defendants to be convicted despite having different levels of involvement in the crime, for operating as a dragnet ‘hoovering up young people from ethnic minority communities’ who had peripheral involvement in criminal acts.
The new report (Joint Enterprise: Righting a Wrong Turn?) published by the Institute for Criminal Policy Research with the Prison reform Trust, has called for much greater clarity and transparency during prosecution and sentencing as well as scrapping the ‘toxic’ label of joint enterprise.
In February the Supreme Court acknowledged that the law had taken ‘a wrong turn’ 30 years ago in joint enterprise cases and now required ‘correction’ in the landmark case of Jogee. As reported on the Justice Gap, the Criminal Cases Review Commission is currently looking at around 30 joint enterprise murder cases (here). In the wake of the ruling, a number of test challenges are currently being heard in the Court of Appeal which could have significant ramifications for hundreds of joint enterprise prisoners (here).
The study aimed to discover how the joint enterprise doctrine was used in the prosecution of serious offences, through analysis of a sample of 61 CPS case files and associated court transcripts of prosecutions carried out under joint enterprise. Of the 157 defendants in the study’s sampled cases, almost two-thirds were aged under 25. Of those for whom ethnicity was known, around two-thirds were from minority ethnic groups and over 40% were black.
Following analysis of the sampled cases, the report concludes that there is an ‘urgent need’ for greater clarify in the prosecution of joint enterprise cases. It also notes with concern the fact that there are ‘currently no provisions for routine recording and monitoring of cases involving forms of joint enterprise’.
‘Even if the Supreme Court judgment goes some way towards simplifying the law on joint enterprise’, concludes the report, the way in which different types of liability under joint enterprise are applied in serious cases ‘remain complex in terms of both legal doctrine and practical effect.’
The report’s recommendations include the introduction of routine recording and monitoring of cases involving join enterprise and improved Sentencing Council guidance for judges dealing with multi-defendant cases. It also suggested the creation of a new terminology to replace the ‘now toxic phrase “joint enterprise”’.
Dr Jessica Jacobson, who conducted the study along with colleagues from the ICPR, commented, said that there was ‘more urgency and more opportunity associated with the task of making the prosecution process clearer and more transparent’ post-Jogee.
‘Success in this task will increase the chances that individuals involved in multi-defendant cases – whether as defendants, witnesses, victims or family members – will understand how the prosecution process works and, potentially at least, will view it as legitimate. Clarity and transparency are also of critical importance to criminal justice practitioners, who can only apply the law in a fair and consistent manner if they have a common understanding of it and knowledge of how it is working on a day-to-day basis.’
Dr Jessica Jacobson
Lucie is a law student and occasional writer living in Bristol. She intends to work in social welfare law when she qualifies