New monitoring of joint enterprise. What’s been agreed?

This move was in response to legal action brought by JENGbA, represented by a legal team at Liberty. Their case drew on evidence established over several years including the Centre’s published research and data gathering about the disproportional and discriminatory practices involved in such prosecutions.

Official promises have been made for over a decade to improve joint enterprise monitoring. And not been acted upon.

The agreement reached provides, for the first time, concrete commitments and a firm timetable for the CPS to monitor who is prosecuted under secondary liability laws.

This is an important, partial, step for those concerned about the use of these laws.

So what are the CPS’s monitoring plans and what might they tell us about joint enterprise?

New monitoring

In a nutshell, the CPS have agreed to collect data about the protected characteristics of those prosecuted on a secondary liability basis in homicide cases.

Protected characteristics include age, sex, race, and mental impairment.

Homicide is a collective category of various offences including murder, attempted murder, and manslaughter.

The CPS has committed to two key monitoring activities.

A pilot scheme

The first activity is a six month pilot scheme. This will commence with immediate effect in just under half the CPS areas.

All homicide prosecutions brought on a secondary liability (joint enterprise) basis will be flagged. The protected characteristics of defendants in such cases will be manually reviewed; as will whether the CPS guidance on ‘gangs’ is being followed in these cases. This guidance states:

prosecutors must not use the term ‘gang’ unless there is evidence to support that assertion.

A national scrutiny panel (including external representatives) will review anonymised cases.

Findings will be published by this September.

National monitoring

The second activity is a national monitoring scheme. This is anticipated to start early next year.

At a minimum the CPS will flag defendants prosecuted in homicide cases under secondary liability laws and analyse the protected characteristics of defendants in these cases.

In addition to homicide, the national scheme may extend secondary liability monitoring to include other serious violence offences.

The data collected will be published at least annually and reviewed periodically, though the arrangements for scrutiny have yet to be announced.  

An important capitulation

The agreement means there is a clear plan about how at least some information about secondary liability can be monitored.

That joint enterprise is too complex to monitor has been part of the official push back for not collecting data for the last decade.

Indeed, just a month before this settlement was reached, a government minister cited the roll out of the Common Platform, the much delayed and maligned IT system across courts, as a reason for not committing to data collection yet.

This legal settlement has found a practical way forward.

Will it answer all questions about joint enterprise?

No. Of course not.

For one, its scope will be limited to current practices. Historic practices prior to February 2023 will not be covered. There is still the need for a case audit to address concerns with practices to date.

Arrangements which only monitor secondary liability prosecutions will obviously not cover the other legal bases for group prosecutions in which the principles of association and gangs may also be applied. For example, those prosecuted under conspiracy laws, such as in this Manchester case, would be excluded.

Whilst the findings of the pilot scheme are anticipated in six months, I wonder whether this will be limited to the implications of the pilot study for a national monitoring scheme and not release any new demographic data. For one thing, relatively few cases are likely to be analysed as a result of the pilot scheme, particularly if, on one reading of the likely scheme, its scope is limited to homicide cases initiated and completed within a six month period in the six pilot CPS areas.

If this is the case, and the national scheme is in place for a year before data is publicly released, then we should not expect new data about secondary liability prosecutions before 2025.

Basis for action?

The real test of these plans will be the extent to which they are a basis for action. A potential challenge will be about responsibility for any disproportional outcomes identified. Given the processes leading to secondary liability prosecutions involve both the CPS and the police, the CPS may well claim there is little they can do if the police are disproportionately arresting and referring individuals with particular protected characteristics.

Applying the well-established evidence and knowledge gathered over the last decade about the processes which underlie secondary liability prosecutions will be vital to making sense of the demographic information identified and changing unjust practices.

One practical way to address this in the monitoring plan itself would be for the CPS to include information about charging decisions.

Alongside information about protected characteristics, it will be vital to know the rationale for secondary liability charging. It will also be important to be able to compare such cases to the protected characteristics of those prosecuted following homicide incidents in which individuals have been charged with individual (lesser) offences rather than as secondaries to homicide.

Access to better information about the protected characteristics of those prosecuted in joint enterprise cases is important. Combining it with charging decisions would bring us much closer to explaining currently opaque practices.