joint enterprise 1. Joint Enterprise An investigation into the legal doctrine of joint enterprise in criminal convictions 2. bureau of investigative journalism About the Bureau of Investigative Journalism The Bureau of Investigative Journalism is an independent not-for-profit organisation that was established in April 2010. The Bureau pursues journalism that is of public benefit, undertaking in depth research into the governance of public, private and third sector organisations and their influence. The Bureau’s work is philanthropically funded; the bulk of our funding comes from David and Elaine Potter. Further funding for specific projects comes from the Joseph Rowntree Charitable Trust and the Freedom of the Press Foundation, through a crowdfunding initiative. Although many journalistic organisations in the US use the philanthropic model, the Bureau of Investigative Journalism is the only organisation of its kind in the UK. To learn more visit www.thebureauinvestigates.com Report Authors Maeve McClenaghan Melanie McFadyean Rachel Stevenson Date of publication April 2014 Copyright © The Bureau of Investigative Journalism joint enterprise 3. Contents Chapter 1 9 Background & Methodology Chapter 2 15 Data 16 Data - multiple-defendant prosecutions and convictions 18 Appealing a conviction 21 The CPS figures 22 Survey Chapter 3 23 Exploring the issues 24 Establishing intent 27 Life sentences 28 Clarity of the law 29 Impact on young people 30 Net cast too wide 31 Maintaining innocence 32 Those in support of the law Chapter 4 33 Ways forward 35 Guidelines and charging lesser offences 36 Inchoate offences 37 Educating young people 38 Dealing with intent: Using case law to clarify the limitations of “encouragement” 39 Dealing with excessive sentences: Revising mandatory life sentences for murder 40 Dealing with collecting data 40 Dealing with issues of clarity in the law Chapter 5 42 Summary 43 Afterword 47 Appendices 47 Appendix A: History 49 Appendix B: Secondary suspects for murder 50 Appendix C: Data 53 Appendix D: Survey results 57 Appendix E: Case studies 4. bureau of investigative journalism joint enterprise 5. Joint enterprise, a definition: Joint enterprise is a doctrine of common the crimes committed during the course law dating back several centuries that of their joint enterprise, regardless of has been developed by the courts to the role they played. Unlike the crime allow for more than one person to be of conspiracy, in which the offence charged and convicted of the same consists of merely agreeing to commit crime. If it can be proved that the a crime, in joint enterprise all parties participants were working together in are convicted of the actual offence, for some way, then they are all guilty of all example: murder. “Who is guilty of murder when four people surround somebody? The one who kicks? The one who suddenly produces the knife that is the offensive weapon that causes the death? The one who eggs on the man who has the knife? The one who says to him, ‘For God's sake!’… it is one thing to be party to punching somebody, and quite another to be party to using a potentially lethal weapon on him.” Lord Judge, 2011 6. bureau of investigative journalism Introduction “ he law on joint enterprise is clear and punched Belamouadden to death. they have foreseen as a possibility that and unforgiving - you do not Others involved in the actual attack someone else might intentionally kill or T need to deliver the fatal blow were convicted of manslaughter. cause serious harm?” he added. or even be at the actual scene of the Joint enterprise means all those who Professor Graham Virgo of killing to be found guilty and sent to jointly commit a crime can be convicted, Cambridge University told the Bureau: jail.” These were the words of Detective even if they play very different roles in “My main concern is that a defendant Chief Inspector John McFarlane of it. The most controversial variant of the can be convicted for murder, with the the Metropolitan Police in July 2013 doctrine is sometimes called ‘parasitic mandatory life sentence, even though after the last of 17 young people liability’: it means that if a group of people he or she did not cause death and did was convicted for involvement in the jointly commit one crime (for example not have the intention to kill or to cause murder of a schoolboy in London’s affray or robbery), and realise or foresee serious injury.” Victoria tube station. It was the biggest that one of them will intentionally Professor Jeremy Horder, former joint enterprise murder case in the commit another crime in the course of it Law Commissioner and now at the history of the 300-year-old doctrine (for example murder), then all are guilty London School of Economics, has of English common law, and the police of the murder. Proof that the others described the problems with joint were unequivocal about the power of intended or took a direct part in the enterprise as “an open festering wound”. joint enterprise to put people behind murder is not required. In 2011 an inquiry by the Justice bars who may not have struck the fatal In recent years there has been Select Committee into the use of joint blow. a growing chorus of concern from enterprise tried to establish how widely The horrific murder of 15-year-old leading figures in the judiciary and it was used. The then Director of Public Sofyen Belamouadden was an act of academia, MPs and campaign groups Prosecutions (DPP), Keir Starmer, was brutal savagery by a group of youths, that something is going wrong with a called up to explain the complex legal some of whom had come to the station law that casts its net so wide that even doctrine of joint enterprise and to inform armed for a fight. The conviction someone on the periphery of the crime MPs about just how the doctrine was was heralded by many, including can be found guilty of murder. used by the Crown Prosecution Service McFarlane, as a prime example of how Lord Phillips, former Lord Chief (CPS). a complex tool of law - the doctrine of Justice and former president of the Elfyn Llwyd MP, a member of the joint enterprise - can be deployed to Supreme Court, told the Bureau that committee, told Starmer: “Nowadays, successfully prosecute crimes involving joint enterprise is “capable of producing there are statistics to prove and large numbers of people. injustice”. Professor David Ormerod, disprove everything on earth. It seems However, the case also strongly the Law Commissioner, one of the to me rather strange that there are illustrates some of the concerns and most senior criminal lawyers in the no statistics to show how often [joint complexities associated with this loose country who advises the government enterprise] is being used.” point of law. For example, one of the on criminal legal reform, says the law Llwyd was to remain mystified. The teenagers charged with the murder is unclear and questions whether or not CPS did not have the figures.1 under joint enterprise was acquitted it is fair. “Unless the law is clear - and Until now, there has been no after it was found he played no role in I'm not certain it is - then you increase information on the reach of this powerful the events, but had merely been at the risk of injustice. If the law is unclear, it part of the criminal justice system. But scene. Another, convicted of murder can be applied in an inconsistent way. here, for the first time, the Bureau of and sentenced to life imprisonment, It's possible because of the complexity Investigative Journalism is able to supply was outside the station at the time of of the law that it has been applied new evidence into the extent joint the attack. He had a samurai sword incorrectly,” he told the Bureau. enterprise is used in homicide convictions, and had led a charge towards the “Even if you made the law on joint where most concerns about potential station but under joint enterprise, enterprise crystal clear, that leaves the injustice lie. This new data frames the even though he took no part in the question whether the law on murder is concerns around the looseness of the actual murder, his actions made him fair when applied in such cases? Is it fair law, making a strong case for debate and as guilty as those who stabbed, kicked that someone is convicted for murder if further reform. 1 House of Commons Justice Committee, Joint Enterprise Eleventh Report of Session 2010–12, 17 January 2012 http://www.publications.parliament.uk/pa/cm201012/cmselect/ cmjust/1597/1597.pdf p. 25 joint enterprise 7. Executive summary ntil now it has not been known these prosecutions how many people have been almost certainly relied of all homicides Ucharged under joint enterprise. on the joint enterprise 17.7% involved four or more The Bureau of Investigative Journalism doctrine. defendants can reveal that in the past eight years In the same eight alone, at least 1,800 people have been years there were prosecuted for homicide using the 4,590 prosecutions for out of 43 lawyers 300-year-old doctrine. This is 17.7% of homicide with two 37 expressed concern all homicide prosecutions in this time or more defendants. about joint enterprise frame. This data shows that this is not That was equivalent a small, peripheral aspect of law. In to 44% of all homicide addition, in depth interviews with senior prosecutions in those of all Court of Appeal professionals highlight the legal and years. Former Director 22% rulings involved a joint moral complexities of joint enterprise, of Public Prosecutions, enterprise conviction, in and give weight to a call for reform.