This blog first appeared on The Conversation
The legal concept of joint enterprise caused outrage in South Africa in 2012, when 270 miners were charged with the murder of 34 colleagues in a police shooting at Marikana. Their crime? Being in the crowd that confronted the police during a prolonged workers’ strike. Charges against them were soon dropped following a national outcry over what was seen as a flagrant abuse of the law.
In the UK, joint enterprise (sometimes known as “common purpose”) is a 300-year-old doctrine originally introduced to charge people involved in duelling. Never enshrined in statute, it has evolved in a piecemeal way, and has seemingly recently enjoyed increasing popularity with prosecutors, often in murder cases where it is not clear which of several people committed the fatal blow.
In essence, joint enterprise is a form of secondary liability; people can be convicted of a crime if they had foresight that it might happen, even if they were not present.
Opponents of the concept argue that the burden of proving foresight is too low, that foresight is in any case very different to intent, and that it’s unfair that someone can even be convicted merely on a “knowing look”.
Guilty by association?
The BBC recently aired the prime time drama Common, written by award-winning screenwriter Jimmy McGovern. Common tells the story of Johnjo, an innocent young man who faces a murder charge under joint enterprise after driving friends to a pizza parlour.
Unbeknown to him, the friends are going to “sort out” a problem, and an innocent bystander is fatally stabbed. Johnjo had no knowledge that any offence would be committed, but finds himself facing a joint enterprise murder charge. He ends up pleading guilty to assault, even though he wasn’t there, rather than risk a life sentence for murder.
Many observers noted that Common unashamedly wore its politics on its sleeve, and called for a balanced view. This was provided in the form of Guilty by Association, a documentary that aired on the BBC the following day. It followed families on both sides of the joint enterprise fence, and reminded viewers that it was joint enterprise that secured the conviction of Stephen Lawrence’s killers.
None of the criminal justice experts, victims’ families and campaigners interviewed in the various recent broadcast discussions on joint enterprise including Woman’s Hour and Newsnight, doubted the need to be able to convict in certain clear circumstances involving a joint venture –– a getaway driver in a robbery, for instance. But reform campaigners highlighted the unfair consequences of mandatory sentencing when it comes to murder. They are arguing that there must be a fair conviction for a part actually played, if any, in an offence.
For her part, Jan Cunliffe, whose son Jordan was convicted of murder under joint enterprise in 2008 despite being partially blind and therefore unable to see events unfolding, powerfully evoked the harshness of the doctrine.
Building the data
The surge in news coverage of and debate around the joint enterprise issue can be directly attributed to a passionate grassroots campaign group, JENGbA (Joint Enterprise Not Guilty by Association), who persuaded McGovern to become its patron, and which bills itself as a group of “common people, working towards a common cause, against a common law that makes no common sense”.
In 2012, JENGbA sought help to press for the formal collection of joint enterprise conviction statistics, which were surprisingly lacking. My colleague Dennis Eady, responding to a request from JENGbA to collate and analyse a body of data – largely from JENGbA’s database of cases – compiled a non-peer-reviewed report (with clear caveats as to lack of independent verification, given that the data was comprised of convicted persons’ own accounts and perceptions).
The report, based on the accounts of 101 of the more than 400 prisoners on JENGbA’s database, confirmed the group’s anecdotal evidence that joint enterprise convictions principally (but by no means exclusively) affected males under 30, with murder the predominant type of crime (86%).
It also showed that 45% of those convicted were unemployed at the time of arrest; half were from ethnic minorities, with about 26% black respondents; 25% were convicted of joint enterprise murder as a first offence; and only 13% had been aware of joint enterprise before arrest. In more than 70% of cases involving people under the age of 22, the prosecution had argued gang involvement, although this was denied by every respondent in the study. The average tariff was also found to be higher for all ethnic groups than for white respondents, with the highest average tariffs given to black respondents.
And a submission to the justice select committee by Cambridge academics researching the experiences of young male prisoners serving sentences of more than 15 years showed that black and mixed race prisoners are considerably overrepresented in the sample of joint enterprise prisoners. This is something that clearly concerns the Institute of Race Relations.
The Cambridge research also showed that joint enterprise prisoners were serving longer tariffs, consider themselves not guilty of the offence for which they have been convicted, and are more likely to consider their sentences illegitimate. In general, they complained about a lack of procedural fairness and about both the ambiguity and moral legitimacy of the joint enterprise concept.
In March, a Bureau of Investigative Journalism report showed that between 2005 and 2013, 4590 people were prosecuted for murder that involved two or more defendants. They say that the rate of appeal for joint enterprise cases also appeared to be on the rise, from 11% in 2008 to 22% in 2013.
They reported that many leading members of the judiciary “also expressed serious concerns about the law, especially about its use in murder trials, where mandatory life sentences can mean people on the periphery of a crime are given very long prison terms”, and concern that a defendant “can be convicted for murder, with the mandatory life sentence, even though he or she did not cause death and did not have the intention to kill or to cause serious injury.”
Meanwhile, in Cardiff, we’ve been running an innocence project for nine years, reviewing cases of prisoners who maintain their innocence. Our work has inevitably touched on joint enterprise cases, and our experience so far has been that convictions and sentencing in this area may generally seem unfair.
The argument that joint enterprise is a deterrent is not borne out by our experience. Prisoners generally say they hadn’t heard of joint enterprise until they were charged (only 13 out of 101 respondents in Eady’s analysis say they were aware of it before conviction).
All of this leads us to believe that while there may be circumstances where joint enterprise could fairly be used, there is now overwhelming evidence that the time has come for a full review of its use.