What's going on with joint enterprise?

Matt Ford
Thursday, 11 November 2021

Joint enterprise refers to the principles governing how more than one person can be held responsible for the same crime relating to a single incident.

Until 2016, there were three ways in which a prosecution might claim that multiple people were criminally liable for a single offence:

  1. Two or more people join in committing a single crime, in circumstances where they are, in effect, all joint principals
  2. One or more people intentionally assist or encourage another person to commit a single crime
  3. Two or more people participate together in one crime and in the course of it one of them commits a second crime, and the secondary parties foresaw the possibility that the principal might commit that second crime

The third scenario attracted much criticism due to the low threshold it set for prosecution and conviction, particularly concerning when used in murder cases where conviction attracts very long mandatory minimum sentences. In 2016, the Supreme Court ruled to tighten its scope. Foresight can now only be used as evidence of secondary liability, or that a secondary party intentionally assisted or encouraged a principal, rather than proof of it.

How might the number of multi-handed prosecutions and convictions for murder have been impacted by this development? A proportional fall in numbers of joint enterprise cases and defendants? Displacement into other offences such as manslaughter or conspiracy to murder? No change as prosecutors simply make the evidence fit joint principalship or assistance or encouragement instead? No change or even increases as knife homicide offences, which can occur in the context of group incidents, have risen sharply in recent years?

What impacts have there been on the profile of the joint enterprise population, particularly the ethnic disproportionality of this population which has made these prosecutions so controversial in the past?

Over the last few months, we’ve approached various authorities asking for data relating to multidefendant homicide prosecutions and convictions to try to answer some of these questions. We’re currently trying to make sense of this information. We hope to produce some findings in the new year.