The ongoing necessity of reform to joint enterprise rules

I’m Helen Mills. I work for the Centre from Crime and Justice Studies. The Centre is a charity which promotes better understanding of criminal justice as well as practical proposals for addressing injustices.

The Centre has had a long standing interest in joint enterprise.

My contribution today is based research we are currently doing about joint enterprise prosecutions and convictions.

The need for this work partly arose because of the lack of data about joint enterprise cases. Despite numerous requests for more information, there are no reliable official sources about joint enterprise. If you want to find out anything about joint enterprise requires it considerable determination, as I’m sure many of you taking part in todays event will be familiar.

We are particularly grateful to the Barrow Cadbury Trust for funding and supporting this work as well as to JENGbA for sharing its wealth of experience and expertise with us along the way.

Our work is based on gathering and analyzing multi-defendant cases for three main categories of serious violence: murder, manslaughter and homicide. We are using data from the Home Office and Crown Prosecution Service (CPS) obtained through a series of Freedom of Information requests. 

We will be publishing this work in the coming months, including data running across a significant 15 year period from 2005 to 2020. When we do I hope some of you might be able to join us – perhaps in person.

Today I’ll focus on data during the period of the so called ‘old law’ prior to the Jogee verdict.

I expect much of what I say will be familiar to many of you. If not a surprise, I hope some of what I say provides useful and updated reference points for those making a case for change.

The contributions thus far this afternoon have shown every case is an individual story. We need to listen to individual experiences to understand the impact of joint enterprise and its injustices. What we have tried to do is to take a step back from individual cases, to identify broad patterns and consistent trends.

Main messages

There are three main messages to share with you:

1. Its very difficult to get good data about joint enterprise. There is a considerable number of cases – hundreds if not thousands – in which parasitic accessory liability could have been applied.
2. The profile of those who have been convicted. Young men from Black and minority ethnic communities – particularly Black young adults and teenagers are overrepresented amongst those convicted of serious violence in multiple defendant cases.
3. There is no sign the Jogee judgement has been followed by a reduction in those prosecuted or convicted as secondary suspects. This runs parallel to what we know about the limited impact of Jogee for those people convicted during the wrong turn.

1. How many people were convicted during ‘the wrong turn’?

The lack of data collection stops our identifying with any precision a clear and certain data based picture about the various joint enterprise principles. For instance, and most importantly to todays discussion, it is not possible to identify how many people were convicted on the basis of parasitic accessory liability. There is no data available which distinguishes this. We can however, give some approximations about the number of people convicted in cases in which parasitic accessory liability could have been applied.

In the twelve year period up to the Supreme Court ruling in 2016: (from 2005)

• 4,470 people were convicted for homicide in cases where there were two or more defendants.

Of which:

• 1,716 people were convicted for homicide in cases where there were four or more defendants (CPS figures).

Homicide is a collective category of several specific offences, including murder and manslaughter. The homicide cases reported here include all circumstances in which two or more people were prosecuted for a crime that falls within this category of homicide.

It is highly likely joint enterprise principles were employed in all the multi-defendant cases shown here. However, it is not possible to identify from the available statistics which principles were employed or how this varied across all the cases. Some will have involved parasitic accessory liability. But the number or proportion that involved parasitic accessory liability is not known.   

Another approximation for joint enterprise is the number of people who have been convicted as secondary suspects in cases of serious violence.

In the seven years up to the Supreme Court ruling (from 2009):

• 426 people were convicted of murder as a secondary suspect.  
• 272 people were convicted of manslaughter as a secondary suspect (Home Office figures).

These figures are decent estimates for identifying joint enterprise. By definition, secondary suspects are those who have been held liable for an offence but who were not the principle offender: the person considered most involved in offence. Those convicted as a secondary suspects will have been held liable on the basis of JE laws.

These figures are obviously limited in terms of the time period they cover. The ‘wrong turn’ was in place for over 30 years. This covers seven of those years. They obviously only tell us about murder and manslaughter, and are not inclusive of any other offence secured through joint enterprise principles.

Again, the figures we have are a much wider category than only those convicted under parasitic accessory liability.  

But they give some indication about the potential number of people who could have been affected by the ‘wrong turn’.

Identifying approximations such as these are likely to be best indicators we will have.

Accounts about how the joint enterprise doctrine is applied suggests in practice principles such as parasitic accessory liability are blurred rather than distinct, so simply counting them is not as easy as it sounds.

Even if the data were to improve, it would not be applied historically.

2. Who has been convicted during the wrong turn?

The overrepresentation of young Black men was a clear and consistent pattern.

In terms of age, young adults and teenagers are overrepresented in multi-defendant cases.

• Between 2005 and 2016, 60 per cent of those convicted of homicide, when there are four or more defendants, were aged under 25 years old. The majority of these were young adults.
• Those aged 18-24 accounted for 43 per cent of all those convicted of homicide in cases involving four or more defendants.

Whilst it is fair to say those convicted of serious violence in general have a younger age demographic than the general population, the age profile of those convicted in multiple defendant cases is younger than that of those convicted of all serious violence.

• 70 per cent of the 833 children and young people under 18 convicted of homicide in this period were convicted in multi defendant cases.

On ethnicity,  a third of those convicted of homicide in cases involving two or more defendants came from BME communities.

This proportion increases in cases with four or more defendants.

• Fourty-four percent of those convicted in cases involving four or more people are from BME communities.

Overrepresentation is particularly pronounced for those from the Black community.

• 26 per cent of those convicted of homicide in cases involving 4 or more defendants were Black. This is a higher proportion compared to the ethnic profile of all those convicted for homicide by some 13 per cent.

This overrepresentation of BME groups – and those from the Black community specifically – was the case across all the offence groups we looked at and was remarkably consistent across the whole period.

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.

3. The impact of the Jogee ruling

Our focus today is on the high threshold set for appeals.

One of the things we were keen to look for in the data was some assessment of the impact of Jogee on the number of joint enterprise cases coming through criminal justice system.

We found no sign that Jogee has been followed by a reduction in the prosecution of secondary suspects.

The overall numbers both prosecuted and convicted as secondary suspects in the years post the Jogee verdict are very similar to the number prosecuted and convicted prior to the Jogee verdict.

• Jogee has had no discernible impact on the overall numbers of cases.

The explanation put to us by legal professionals familiar with joint enterprise cases is that Jogee has changed the principles or precise way in which joint enterprise is articulated. But it has not impacted the overall use or scale of joint enterprise. This has continued in much the same way as before.

The careful work that has been done to explain the underlying processes driving joint enterprise prosecutions – including that of the next speakers today – is key to understanding why this verdict has done so little to disrupt the status quo.

The conclusion to draw from this is the ongoing necessity of reform.

The Supreme Court verdict appeared to recognized some of the concerns with joint enterprise, but it has not proved to be a mechanism for addressing injustices.

This is the case for those convicted under the previous law prior to the Jogee verdict. This is also the case for those who are currently being prosecuted and convicted under the joint enterprise doctrine.

This month marks the sixth anniversary of the Jogee ruling. It is a timely point to reassess progress and to lay out practical proposals for reform such as this parliamentary bill.