Gang narratives and broken law: why "joint enterprise" still needs fixing

I didn’t even know what Joint Enterprise was, when my QC was trying to explain it to me… all I was saying to him [was] ‘look, the pathologist said I haven’t touched this guy, the friends have said I haven’t touched this guy, so therefore I’m not guilty’. That’s how I thought it was anyway. But I was wrong, I was wrong.” (Cited in Crewe et al 2014: 5).

They don't need to prove that you did anything. If you're part of a gang, it doesn't matter, because the actus reus and the mens rea is being in the gang (criminal defence solicitor)

‘Joint enterprise’ is not a legal term, but it is sometimes used to describe a set of legal rules that allows for more than one person to be convicted for the same offence.

The person who brings about the crime is the “principal” and where multiple people bring about the crime, they are “joint-principals” or “co-principals”. People who do not bring about the crime can also be brought into the scope of criminal liability as “accomplices”, “accessories”, or “secondary parties” and can be indicted, convicted, and sentenced in the same way as the principal.

Thus, the most contentious uses of ‘joint enterprise’ come up in deciding complicity – working out who can be liable for the crime despite not having brought it about. This is normally decided by considering what a person did (or sometimes, failed to do) and whether they were culpable for doing it.

Historically, to be an accessory to crime, an individual would have to know of the principal’s intention to commit that crime, but this was changed in [1985] to the ‘lowest [subjective] fault standard in criminal law’ (Dyson, 2015:185) of ‘foresight’[1]. From this point, a person who foresaw what the principal might do could be convicted as an accessory, even where they did not intend for the crime to occur or possess any knowledge that the crime would take place.

Foresight no longer enough

Following criticism and legal challenge from prisoners, their relatives, campaigners, lawyers, and politicians, the foresight test was eventually considered by the Supreme Court in R v Jogee [2016]. In this case, the court ruled that foresight would no longer suffice as the fault in complicity. Now, prosecutors must prove that a secondary party assisted or encouraged the principal to commit the crime, and that they intended to assist or encourage the principal.

If a person intentionally assists or encourages a person to commit a crime, one might think they ought to be prosecuted and punished in the same way as the person who carries out the crime. However, the law of secondary liability in its current form is not without problems. One of the most significant is what constitutes assistance and/or encouragement?

The short, and troubling, answer is that, in English law, the level of physical participation constituting assistance and (more notably) encouragement is not properly defined by law. Without that level set clearly, people can be convicted when they are not actually connected to the crime.

The uncertainty also makes it difficult for members of the public to avoid breaching the law. Could you be liable for giving breakfast to a friend who you know plans to commit a crime later that day? Or for giving an umbrella to someone protesting loudly outside Parliament in the rain?

Even more worryingly, a person might be thought to have encouraged an offence by simply being present when it takes place, so long as their presence is interpreted as ‘supportive’. A judge’s sentencing remark in one joint enterprise case clearly exemplifies this. The judge said: “although you played no part in the events, your presence there encouraged others”.

In this case, the prosecution argued that the defendant’s choice to remain at the scene of an incident was encouraging, highlighting how little or no physical action can implicate a person. In particular, no ‘but-for causation’ is required, meaning the act which is said to be assisting or encouraging does not have to influence whether the principal carries out the crime.

Joint enterprise and the gang narrative

Due to the removal of the foresight test, prosecutors have the seemingly difficult task of convincing a jury that a person - who did nothing but be present at the scene of a crime – intended to assist or encourage the principal. However, 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.

Whilst this poses a risk for everyone, it could be argued that this presents an increased risk to young black men and teenagers who are disproportionately charged and convicted as secondary parties (Mills et al, 2022). One of the reasons for this is how the language of “gangs” is used to persuade juries and magistrates of encouragement or assistance.

Today, it is common for the prosecution in joint enterprise cases to argue that the defendants were all part of a ‘gang’ who were ‘in it together’. This ‘gang narrative’ is significantly more likely to be applied to defendants from racialised groups (Williams and Clarke, 2016), with young black men being most likely to be defined as ‘gang members’ by the police and other legal authorities, irrespective of whether they have committed a criminal offence (Amnesty International, 2018).

The reliability and validity of ‘gang evidence’ has been widely disputed, including by academics who have found that it is often misguided, underpinned by racially biased police ‘intelligence’, and rooted in longstanding stereotypical assumptions about black youth and criminality (Ward and Fouladvand 2021, Clarke and Williams 2020).  

Nonetheless, it has become clear through my current research study that adopting the (racialised) gang narrative is common institutional practice in joint enterprise cases, being used to strengthen the case against those who had little or no physical participation in the offence.

Whilst a defendant can be convicted based on mere presence at the scene, there still needs to be evidence from which a jury can infer that the defendant had the intention to encourage the principal through their presence. This is where the ‘gang narrative’ serves a significant prosecutorial purpose, as it constructs the image of a criminal group with a ‘common intention’ (Williams and Clarke, 2016), regardless of their level of physical participation.

‘By utilising the gang as the primary form of association, prosecutors serve to symbolically communicate to the sentencer and more importantly, the jury a story, one which consistently bears the hallmarks of the myriad contemporary mediated construct that ‘urban gangs’ are responsible for serious violent offending.’ (Williams and Clarke, 2018).

Further, emerging through my current research study, a criminal barrister disclosed:

It’s the default assumption… when referring to a group of young black men to refer to them as a gang, whether or not they are officially affiliated…It’s become a common narrative… no one questions it… no one thinks… should we actually be going for murder for all of these people, it's just, it's a gang crime, there's been a death - joint enterprise. (Prosecution and defence barrister)

Conviction-maximising strategies

The ‘gang narrative’ therefore places the prosecution in a “conviction-maximising” (Dyson, forthcoming) position when there is no evidence of a defendant’s physical participation in the crime. Where the ‘gang narrative’ is applied then, the effects of the removal of the foresight test are somewhat negated, as the ‘gang’ serves to construct the defendant’s guilt, making it more likely that a defendant will be convicted, without demonstrable evidence to prove that they possessed the necessary ‘intention’. The failure to set clear and reasonable parameters on what constitutes assistance and encouragement places young black men, in particular, at a greater risk of conviction, as they are routinely made subject to this prosecution ‘gang tactic.’

It is therefore imperative that the extent to which the gang narrative assists in constructing a defendant’s intent is a subject for legal and criminological enquiry. Improvements to the law on secondary liability ought to be made, not only to set parameters on what constitutes physical contribution to a crime, but to ensure that racialised and misguided evidence is not being utilised to overcome the prosecutions burden of proof in the context of post-Jogee law.

The (over)application of the (racialised) gang label is an issue that is not limited to joint enterprise. Similarly, joint enterprise needs fixing, even without the prosecution gang narrative. However, the absence of a legal test for contribution better explains the use of the gang label in joint enterprise cases as a deliberate strategy to story the presence of an individual (or individuals) at a crime, and to evidence assistance and encouragement.

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Nisha Waller is a Criminology DPhil ESRC Grand Union Scholar. She is exploring the current application of complicity law (often referred to as 'joint enterprise') in the UK and its relationship to the criminalisation of young black men. 

References

Amnesty International. (2018). Trapped in The Matrix; Secrecy, Stigma and Bias in the Met's Gangs Database. [Online]. Available at: https://www.amnesty.org.uk/files/reports/Trapped%20in%20the%20Matrix%20A... [Accessed 26 August 2022].

Clarke, B. and Williams, P., (2020). (Re) Producing guilt in suspect communities: The centrality of racialisation in joint enterprise prosecutions. International Journal for Crime, Justice and Social Democracy, 9(3), p.116.

Crewe, B., Hulley, S., Wright, S. (2014). Written submission on joint enterprise, Institute of Criminology, University of Cambridge. [Online]. Available at: https://reshare.ukdataservice.ac.uk/851739/2/Evidence%20to%20Justice%20C... [Accessed 26 August 2022].

Dyson, M., (2015). The Future of Joint-up Thinking: Living in a Post-accessory Liability World. The Journal of Criminal Law, 79(3), pp.181-197.

Mills, H., Ford, M. and Grimshaw, R. (2022), The usual suspects: Joint enterprise prosecutions before and after the Supreme Court ruling, London, Centre for Crime and Justice Studies. Available at: https://www.crimeandjustice.org.uk/publications/usual-suspects [Accessed 31 August 2022].

Ward, T. and Fouladvand, S., (2021). Bodies of Knowledge and Robes of Expertise: Expert Evidence about Drugs, Gangs and Human Trafficking. Criminal Law Review, 2021(6), pp.442-460.

Williams, P., and Clarke, B. (2016). Dangerous associations: Joint enterprise, gangs and racism. Centre for Crime and Justice Studies [Online]. Available at: https://www.crimeandjustice.org.uk/sites/crimeandjustice.org.uk/files/Da... [Accessed 26 August 2022].