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Parliament to debate joint enterprise reform

Friday, 2 February 2024

We have been working with the Labour MP Kim Johnson, JENGbA and legal experts in a fresh attempt to narrow the scope of joint enterprise prosecution.

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Kim Johnson’s Joint Enterprise (Significant Contribution) Bill, due for its Second Reading in the House of Commons today, seeks to amend the Accessories and Abettors Act 1861 to clarify that a person must make a significant contribution to a crime to be guilty of it. This Private Members’ Bill has cross-party support.

The 1861 Act itself states that those who “aid, abet, counsel, or procure the commission of [an offence] shall be liable to be tried, indicted, and punished as a principal offender” – although the doctrine of secondary liability, or Joint Enterprise as it’s more commonly known, is older still.

Through common law developed by the courts, “aid or abet” has now shifted to “assist or encourage” for establishing secondary liability. In many situations, this test is entirely reasonable. Most people would agree that an armed robber at a bank heist gone wrong, for example, can be deemed as culpable as their partner who actually shot the cashier, because they make a significant contribution to the crime by carrying or supplying a gun and threatening the cashier.

But the problem, according to many legal experts, is that Joint Enterprise laws are sometimes used in a much wider way, often convicting people who have made no significant contribution to a crime at all.

Campaigners have long warned that these laws can be used as a racist dragnet to maximise convictions. Recent Crown Prosecution Service data, recorded and released as a result of legal action by Liberty and campaign group JENGbA (Joint Enterprise Not Guilty by Association), suggests that black people are 16 times more likely than white people to be prosecuted for homicide or attempted homicide under Joint Enterprise laws, yet no assessment of the reasons for this shocking statistic has been made public by the CPS or Government.

And new research from Manchester Metropolitan University estimates that the annual cost to process defendants in Joint Enterprise cases is over £242 million – and that, once convicted, the future punishment costs are vast, with over £1.2 billion spent post-sentence on prison and probation responses to those convicted annually.

‘Wrong turn’ by the law

In 2016, the Supreme Court ruled in the case of R v Jogee that the law on Joint Enterprise had taken a “wrong turn” for over 30 years. It restored the proper law of intention so that those who intended to commit or assist a crime, rather than those who only might have foreseen it, could be properly convicted – a “moment of genuine legal history” according to the BBC.

But research by the Centre for Crime and Justice Studies identifies that the judgment has had little to no effect on Joint Enterprise charges or convictions, and the Court of Appeal has decided that prisoners whose juries had only been directed to consider foresight, rather than intention, should not have a retrial. This is a gravely unjust situation for many prisoners, which Barry Sheerman tried to address with his Criminal Appeal (Amendment) Bill.

That the Supreme Court “fixed” Joint Enterprise in 2016 is a myth. It left unaddressed what constitutes assist or encourage. There is currently no threshold or test as to whether someone made a significant contribution to a crime to be convicted of it. This flexibility gives rise to uncertainties and injustice.

Joint Enterprise laws have been used to convict: young people seen fighting, but not with the victim; young people who are not present at the scene; women who have no control over their boyfriends’ conduct; and young people who listen to certain kinds of music, where trials focus on character and culture and not contribution to a crime.

In the recent case of Fiaz, the Court of Appeal suggested that a jury need not be specifically directed by the judge to consider the legal significance of a defendant’s contribution towards an offence. Unfortunately, the Supreme Court declined to hear this case, so it falls to Parliament to enact safer legal frameworks. Please note that Mr Speaker has clarified that Fiaz is not covered by Parliament’s subjudice rule.

What this Bill does

The Bill simply adds eight words to the 1861 Act – “by making a significant contribution to its commission” – thereby enshrining in statute a common-sense safeguard against over-zealous prosecutions, an important principle in a fair and effective justice system.

By clarifying that someone must make a significant contribution to an offence to be criminally liable, this Bill seeks to restore Parliament’s original meaning and to correct a second wrong turn by the courts with respect to Joint Enterprise. This would help to ensure that persons who make no significant contribution to a crime are never again convicted of being complicit in that crime.

Of course, this wouldn’t prevent the use of alternative charges in cases involving multiple accused persons, nor prevent the prosecution of multiple persons for a crime in which they all played a significant contribution. It wouldn’t help anyone already convicted under this doctrine (see Barry Sheerman’s Bill, above), but the Bill would be an important step in preventing the unfair and unjust use of Joint Enterprise laws against innocent people in the future.

The Bill is backed by numerous legal experts, academics, trade union leaders, campaigners and celebrities, including miscarriage of justice victim Andrew Malkinson, screenwriter and producer Jimmy McGovern, film-maker Ken Loach, Michael Mansfield KC and Peter Stefanovic from the Campaign for Social Justice.

What are the objections?

The text of the Bill was debated on Tuesday 30 January 2024 by the Criminal Justice Bill Committee in the form of NC16, moved by Peter Dowd. In her response, Minister Laura Farris explained why the Government were against this proposal, stating: “We think that it is too difficult to require the prosecution to prove a significant contribution.”

This is concerning, as it concedes that people are currently being convicted – often for very serious offences such as murder – without the prosecution proving that they made a significant contribution to a crime. Moreover, it implies that the Government have no problem with people being found guilty of offences despite making no significant contribution to their commission. This issue will hopefully be explored in more depth at Second Reading.

The Minister also suggested in her response that concerns about the wide scope of joint enterprise had been dealt with by the Supreme Court in 2016. The Supreme Court did restrict the use of parasitic assessorial liability – but it did not consider or seek a change around the minimum level of contribution necessary to be held liable for a crime. And it is this that continues to give rise to uncertainties and injustice.

It is possible that the Government will change their argument by claiming that the Bill is unnecessary, on the grounds that our current laws – whether “aid or abet” in statute or “assist or encourage” in common law – already imply a significant contribution, or that the current flexibility of the law is part of its strength as it is for the jury to weigh up and decide on the facts in a particular case. However, it is not the case that significant contribution is already implied, according to Dr Felicity Gerry KC, who was lead counsel in Jogee. Gerry has described the following generic examples of this, all based on real cases:

  • a boy cycling to and from an incident who has no contact with the victim;
  • a driver who drops friends off to collect drugs and a fight happens outside the car;
  • a passenger in a taxi where others get out and go to an area where a stabbing occurs. He has no contact with the victim;
  • schoolchildren who gather for a fight and one of them dies, where all are prosecuted even when they have no contact with the victim and no weapon, which risks all being convicted without separating those who contribute and those who do not;
  • autistic children who find it difficult to assess what others will do;
  • children exploited to sell drugs caught up in the actions of others;
  • a woman whose violent boyfriend got angry with some people and ran after them around a corner. She followed a short while later and pulled another person’s hair when she thought he was being attacked; and
  • a woman looking for her shoes during a violent disorder.

All of these scenarios describe circumstances in which people can be convicted of serious crimes despite making no significant contribution to that crime, so it would be false to claim that significant contribution is already implied in law. And Gerry points out how the case of Fiaz, in which she was also lead counsel, highlights the need for this legal clarity. Judges aren’t currently required to direct juries to consider the significance of a defendant’s contribution towards an offence – and this is leading to numerous miscarriages of justice that only Parliament can fix.

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