Joint Enterprise: New data, familiar picture, old action?

The data revealed by the pilot is new. But the picture it paints is a familiar one to those acquainted with concerns about the operation of joint enterprise.

Joint enterprise defendants are overwhelming young adults and children. Minority ethnic groups, and the Black community in particular, are over-represented. Young adult Black men are vastly disproportionately prosecuted in these cases.

The data also reveals that the scale of joint enterprise prosecutions is staggering, with 680 defendants prosecuted in 190 cases of homicide/attempted homicide across just six of 14 CPS areas in six months.

The disparities identified cannot go without explanation. The government has previously set out its intentions to respond. The findings of the pilot data demand comprehensive action.

What is joint enterprise?

Joint enterprise is a common term used to describe a set of legal principles which allow more than one person to be prosecuted in relation to the same incident. Cases involving ‘secondary parties’ are particularly controversial. Secondary parties are prosecuted and convicted on the basis that they assisted or encouraged the law-breaking of another (the principal). The level of physical conduct which constitutes ‘assistance or encouragement’ is not adequately defined in law, nor subject to any clear threshold. In addition, secondary parties are subject to the same or similar sentencing tariffs as those identified as principals.

As one of the authors here has previously pointed out;

the absence of a legal test for contribution poses an increasingly dangerous risk for members of the public. Very minimal physical actions can bring a person into the scope of criminal prosecution and punishment, including for some of the most serious offences.

JENGbA, the campaign group that has highlighted the injustices of joint enterprise over a decade, report;

We are aware of many cases where a defendant's presence at the scene was enough to convict them of murder.

Key pilot findings

In total, 190 homicide or attempted homicide cases involving 680 defendants were identified as joint enterprise prosecutions in a six month period across six of the 14 CPS areas in England and Wales. Amongst the key findings about defendants in such cases are:   

• 40 per cent were aged 18-24 years old.
• Over half were aged under 25 years old.
• 30 per cent were Black. This compares to 4 per cent of the population.
• Black 18-24 years olds were the largest demographic group identified.  

The pilot involved the CPS manually flagging joint enterprise homicide cases, a category that includes murder, attempted murder and manslaughter.

The findings are the first demographic data about defendants prosecuted on a joint enterprise basis the CPS have published. It is also the first official data release of any kind about joint enterprise in a decade. The last CPS data release was for 2013, as part of a Justice Committee inquiry. Indeed, this pilot only emerged from legal action brought by Liberty representing JENGbA, following research, including that published and conducted by the Centre, indicating racial disproportionality and racialised prosecution practices in joint enterprise prosecutions.

Gaps and problems

Notwithstanding outstanding questions about the methodology the CPS have used to collect this data generally, there are two issues in particular – assigning principals and secondaries and ‘gang’ related cases – that we do not think can be well captured by the manual flagging the CPS pilot entailed.

Identifying principals and secondary parties can be a dynamic process throughout the trajectory of a case, and sometimes the distinction is never made. Hence measuring this at a fixed point is not likely to accurately capture the number of principals and secondary parties. We suspect secondary parties are likely to be undercounted by the pilot, and principals overcounted.

The pilot found 21 per cent of the joint enterprise cases flagged fell within the definition of ‘gangs’ set out in the CPS guidance. This is surprising given that the application of the stereotypical gang label has been a prominent explanation for racial disproportionality in joint enterprise. What might be going on here? Perhaps it reflects that the ‘gang narrative’ emerges in the court room, a place many of the cases in the CPS pilot have yet to reach?

The proportion of completed cases which involve references to ‘gangs’ may therefore be much higher than the 21 per cent suggested here. As Becky Clarke points out, given the imprecision of ‘gangs’, and the ways it evolves during a case, it is perhaps no surprise ‘gangs’ is a term that evades easy capture at a fixed data point.

We hope to address this question comprehensively in future work. For now we would note the CPS data does not demonstrate the frequency of gang references or signifiers, particularly during the trial proceedings. It also does not shed light on whether such references are disproportional made in cases involving Black defendants.

From monitoring to action?

The CPS have said no conclusions about CPS decision making can be drawn from the pilot data. Anyone interested in just, fair practices will be seriously questioning the practices and approaches that underpin these findings. And there is plenty to draw on here.

In lieu of official attention, the last decade has seen considerable evidence amassed by academics, legal professionals, and civil society in an attempt to understand joint enterprise.

Amongst the plurality of approaches and perspectives, the cogent picture that has emerged from this work is of a law that lacks a clear threshold for liability, combined with a “conviction-maximising” gang narrative, which is enabled by racist policies and practices. The consequences of this are disproportionately experienced by young black defendants, who are criminalised not through their actions, but largely through their associations and depictions of their ‘character’.

If there is another explanation, let’s hear it now. And the evidence for it.

It took the CPS over ten years to capitulate on data collection. Parliamentarians cannot let it take that long again to get hold of this issue.

The CPS have agreed to national monitoring of joint enterprise and to review its guidance on gangs. This is a start. But both are steps that were previously agreed in the legal settlement the CPS reached with JENGbA. They are not new actions.

In response to Kim Johnson’s parliamentary question on joint enterprise a matter of weeks ago, the government committed to waiting:

until we have seen what the work being done by the CPS uncovers. Once we have data, we can then have a rational discussion on the next steps. (Mike Freer, 12th September 2023).

That time has come. Given the disproportionality confirmed by the CPS pilot, the government must commit to the full inquiry required to explain or reform joint enterprise, and a comprehensive review of whether the legal framework for such prosecutions is fit for purpose.

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Helen Mills is Head of Programmes at the Centre for Crime and Justice Studies.

Nisha Waller is a Criminology DPhil ESRC Grand Union Scholar and researcher at APPEAL.

The Centre is continuing work on joint enterprise as part of the The Young Adult Safety project funded by the Transition to Adulthood Alliance, at the Barrow Cadbury Trust. This includes publishing a briefing by Nisha Waller in 2024. If you are interested in being kept in touch with this work please email Helen Mills.