Joint Enterprise Recommendations, A Summary By Sam Stein QC & Andrew Jefferies QC

A very large number of criminal cases concern the joint enterprise doctrine. Sam Stein QC and Andrew Jefferies QC have considerable experience in cases of joint enterprise and they lecture on this very important but sometimes complex topic. Having given evidence at the recent Justice Committee sessions into Joint Enterprise, they provide a short summary of the recommendations made today, 17th December 2014.

The House of Commons Justice Committee - Joint Enterprise Follow-Up Report.

All mouth but hopefully some trousers?

By Sam Stein QC and Andrew Jefferies QC

We are pleased to write that the Justice Committee has agreed with our submissions that the CPS Guidance on Joint Enterprise has not been of assistance; that further statistical research is required and that urgent consideration should be given to a change in the law.

In 2006, joint enterprise was considered by the Law Commission in over 265 pages. In December 2007, the MoJ announced it was continuing to review the LC report. In 2008, in response to a question raised in the House of Lords, Lord Hunt indicated that the report was being considered but rather than make knee-jerk legislation, for which Government is often criticised, they were taking time to think. In July 2008, the MoJ issued a Consultation Paper (a mere 54 pages). In January 2009, the Government Response to that Consultation Paper was to leave ‘Complicity’, as it was termed, alone. In a further HL debate in July 2010, Lord McNally reassured all who cared to listen that reform to the homicide laws was an “urgent priority”. In January 2011, Ken Clarke’s report on the Implementation of the Law Commission’s Proposals was that “the time is not right” to substantially reform the criminal law in this area.

And so it comes to pass that the Justice Committee have asked that the Law Commission provide a further report for a future Government to consider this important topic. Although sounding extremely cynical about what might come to pass as a result of this most recent Report, there are in fact positives to take from the Report:
The Committee was most unimpressed (it was “not acceptable”) that the MoJ and the CPS were unable to provide accurate and informative figures/statistics about the real affect of the doctrine of joint enterprise in criminal cases; and that in future they should do so,

The Committee stressed its concern as to the lower threshold of liability for those tried on a joint enterprise basis,

The Committee was not impressed by the use of the doctrine as a policy of social control, if injustices were occurring as a result of the doctrine.

The main and most significant recommendation is that the Law Commission “undertake an urgent review of the law.....considering the appropriateness of the threshold of foresight and to consider the proposition that it should be possible to charge a secondary participant in joint enterprise cases with manslaughter or a lesser offence, if they did not encourage or assist the murder”. Urgent means before the end of 2015.

Cynics might well not be surprised by the failure of the MoJ and the CPS to be able to provide meaningful statistics. Described by some witnesses to the Committee as a ‘dragnet’, joint enterprise as it stands mops up even the most marginally involved in offending behaviour. It is hardly surprising that the MoJ’s representative, Mr Penning, had seen no problems with joint enterprise. The Committee observed that there was “an unwillingness to recognise that there may be negative effects from the operation of the doctrine, for the reputation of the justice system and for wider society”. One would expect the ‘party of Law and Order’ to want to criminalise more people than less. What is surprising (and most concerning) is that Mr Penning appears to have thought that joint enterprise was a statutory doctrine, rather than a common law one.

Ultimately, whatever the Law Commission’s findings and recommendations, the decision to change the law of joint enterprise is a political one. A high threshold will lead to cries of being “soft on crime”, a low threshold will continue to criminalise some as murderers who did no overt act and did not intend or desire the death of the victim. This author hopes that the time for doing something about joint enterprise, rather than continuing to talk about it, comes sooner rather than later.