Joint Enterprise (1) ~ Setting the scene

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Individuals can participate in crime in various ways and the criminal law recognises this by enabling the conviction of not only principal offenders - (that is, those who actually commit the prohibited act with any necessary mental element or mens rea) - but also those who, in various ways, lend their support.  One of the most controversial aspects of participation in crime is what has come to be referred to as Joint Enterprise.  I plan to look at this topic in rather more detail in the coming days.

By way of setting the scene, The Guardian 1st April, draws attention to statistics obtained by the Bureau of Investigative Journalism.  The statistics may be seen at Joint Enterprise in numbers. The Bureau found:

• Between 2005 and 2013, 1,853 people were prosecuted by the CPS for homicides that involved four or more defendants. This is the closest approximation that can be made to the use of joint enterprise. Most academics agree these prosecutions almost certainly relied on the joint enterprise doctrine.

• In the same eight years 4,590 people were prosecuted for homicides involving two or more defendants – a definition the CPS suggests is a clear indication of the use of joint enterprise.

The Bureau describes
joint enterprise as " ... a doctrine of common law dating back several centuries that has been developed by the courts to allow for more than one person to be charged and convicted of the same crime.  If it can be proved that the participants were working together in some way, then they are all guilty of all the crimes committed during the course of their joint enterprise, regardless of the role they played."  Lawyers would not agree that this is an accurate "definition" but it is an adequate description for present purposes.

It tends to be homicide cases that come to greater public notice and joint enterprise frequently plays a part in such cases.  However, joint enterprise is NOT confined to homicide cases and could, in principle, be applied to other types of offending (e.g. theft or public order offences etc).  There are certainly some instances where convictions for murder have been obtained against individuals whose degree of participation in the offending can be said to be quite minimal or peripheral.

Joint enterprise is frequently defended as a necessary tool in the criminal law's armoury to deal with "gangs".  In a response to a Parliamentary Report on Joint Enterprise, Kenneth Clarke (then Secretary of State for Justice and Lord Chancellor) said - "I am keen to avoid consulting on measures that could weaken the law in this area or undermine the Government's efforts to tackle crimes committed by gangs."  Clarke shelved any possibility of reform for the duration of the present Parliament.  

The campaign  group JENGBA (Joint Enterprise Not Guilt by Association) seeks changes to the substantive law. I am not connected to JENGBA but, as we shall see, they have a strong case for reform.  The following short video is worth watching:

Joint Enterprise and Jordan Cunliffe

Newlove killers jailed for life - BBC News 11th February 2008