Joint enterprise prosecutions since 2016. What do we know? What needs to happen?

Helen Mills
Monday, 16 May 2022

Speech given to JENGbA event on joint enterprise in the Houses of Parliament.

The Centre for Crime and Justice Studies has had a long standing interest in joint enterprise.

We first worked with JENGbA on research which led to the publishing in 2016 of a report written by Becky Clarke and Patrick Williams called Dangerous Associations.

My contribution this afternoon is based on research I and colleagues at the Centre have recently completed about joint enterprise prosecutions and convictions. The report – The usual suspects – was published just over two weeks ago.

It uses national data to assess the use of joint enterprise over the last 15 years. It is the first publication to track information about multi-defendant cases and secondary suspects over this significant period of years.

It is a real honor to be in a room able to talk about this with people who have so much knowledge and expertise on this issue. To understand the injustices of joint enterprise it is particularly important to listen to individual stories. What I hope our research does is compliment this by taking a step back to look at data which can establish trends and help assess where we are more broadly.

There are three key points I’d like to make. In summary:

  1. Little appears to have changed in the overall use of joint enterprise laws over the last decade.
  2. The over-representation of the Black and minority ethnic people in joint enterprise convictions is a consistent trend over the time period we looked at.
  3. We need MPs to get hold of this. In addition to supporting the parliamentary bill being discussed today. I ask for your consideration and support for a parliamentary inquiry into joint enterprise.

Little appears to have changed in the overall use of joint enterprise laws over the last decade.

Part of the motivation for the research was this has been a time of change:

  • The Supreme Court decision in 2016 on the abolition of so-called parasitic accessorial liability.
  • The government-sponsored Lammy review of racial disparities – calling joint enterprise an example of explicit racism in the criminal justice system needing urgent reform.
  • The CPS introducing new guidance on gangs and secondary liability in 2019.

But it was difficult to assess the impact of these changes given no information has been officially released about the use of joint enterprise laws since around 2014.

Looking at a time frame of over 10 years, we are able to make some assessment of changes in this period. In particular, we wanted to understand what impact the Supreme Court decision in 2016 has had on the overall use of joint enterprise laws.

Our figures show the overall numbers both prosecuted and convicted as secondary suspects in the years post the Supreme Court verdict are very similar to the number prosecuted and convicted prior to the Supreme Court decision.

This is the case for both murder and manslaughter.

The explanation put to us by legal professionals familiar with joint enterprise cases is that the Supreme Court decision has changed the principles or precise way in which joint enterprise is articulated. So parasitic accessorial liability is no longer used as the sole basis for securing a conviction. But it has not impacted the overall use or scale of joint enterprise. This has continued in much the same way as before.

I say overall because the current lack of data collection means these figures cannot be used to distinguish between the specific principles of secondary liability.

They suggest association is still being used to build a prosecution case via other aspects of how secondary liability can be established, aiding and abetting for example.

Does this mean the Supreme Court decision failed take effect or is being ignored by courts? No. Rather that this change alone was a limited technical change rather than new era for joint enterprise prosecution. The picture that emerges from this data suggests the concerns that have been previously raised about joint enterprise have not gone away.

On discrimination

The data tells a pretty clear consistent picture about who has been on the receiving end of secondary liability prosecutions.

They are predominantly young men. Those from minority ethnic Communities and particularly the black community are consistently overrepresented.

On ethnicity around 30 per cent of all defendants convicted for homicide were from black and minority ethnic communities. This rises to 40 per cent of those convicted in cases involving two or more defendants. This rises again to 50 per cent of those convicted in cases involving four or more defendants.

This data we have collected refreshes the available information by providing data over a longer period than has been obtained previously. But this demographic profile is well established by previous studies; surveys of prisoners for example.

It is not only well-known but well-explained. We know the underlying discriminatory processes that are driving this phenomenon: the ways in ways associations and gangs are used to prosecute young people from Black and minority ethnic background in particular.

Indeed, data about the most recent years indicates disproportionally is increasing for the Black community in particular.

What needs to happen?

In addition to supporting the private member's Bill that's been discussed today to address the injustices of previous practices, there is also still much to do about current practices.

There are important issues of legal principles here. And there are wider issues of fairness, discrimination and accountability.

The government and criminal justice institutions need to be held accountable for the lack of information about how secondary liability is being used.

There are significant concerns about the use of these laws. For criminal justice institutions to not be able to answer how they are used should not be acceptable. What is great is that the government agrees in principle. The Ministry of Justice is considering the collection of data. What is less positive is it has been considering the collection on data on this issue since at least 2014.

Since then there has been no official release of any data. No material update on the progress so far. And no timed action plan for the future. This makes for some very un-transparent and unaccountable practices.

The data suggests over a thousand people have been convicted of murder or manslaughter as a secondary suspect in the ten year period to 2020. Over 2,000 have been convicted of homicide in cases involving four of more defendants in the 15 year period to 2020.

These are significant figures. Some of them will be uncontentious cases. Violence can be planned and committed in groups. It is of course right that they are prosecuted and convicted on this basis.  The lack of current data collection stops our being able to identify with any precision a clear and certain data-based picture about the various joint enterprise principles.

This should not be simply left to continue.

The Crown Prosecution Service need to take up the Lammy challenge of "explain or reform"

How do they account for the disproportionate outcomes for Black and minority ethnic communities and for the Black community in particular? We need independent scrutiny of current prosecution decision-making on secondary liability cases from initial charge to conviction for young Black men convicted of murder in particular.

Meaningful reform on these issues requires parliamentary scrutiny

Joint Enterprise needs the attention of a full parliamentary Committee inquiry. It has previously been the subject of a brief inquiry and follow-up inquiry. That brief inquiry is now over a decade old and understandably focused at that time on the issue of foresight.

An inquiry is no panacea. We are currently working around the Justice Commite inquiry into the Imprisonment for Public Protection sentence. Whatever the outcome of that inquiry, it is at least helpful to have taken stock and assessed this issue in one place.

An inquiry can provide one way – among others – to hold institutions for account and to begin the necessary steps towards meaningful reform.