The Law Commission’s current review of homicide law presents an important opportunity to grapple with a fundamental question: how should laws respond to the most serious of crimes?
The Commission’s Call for Evidence, published this summer, invites contributions on everything from the structure of homicide offences to sentencing frameworks and defences. Among the issues under review is one that the Centre has long argued is in urgent need of reform: the laws of complicity, often referred to as joint enterprise.
Our submission to the Law Commission (available on this page) makes a simple argument. Current laws of complicity in homicide cases are incoherent, vague, and overly punitive. The consequences are particularly harsh for children and young adults and racialised communities. These laws too often punish people for what others have done, under a doctrine that blurs the lines between presence, foresight, and intent. In doing so, these laws fail to uphold basic principles of fairness, individual responsibility, and proportionality.
A confusing and damaging doctrine
In its Call for Evidence, Law Commission itself describe the development of complicity laws as “haphazard”. This is not hyperbole. Over time judicial decisions have created a confusing patchwork of rules that allow people to be convicted of murder even when their own actions played little or no role in a killing. Little wonder then that public opinion research suggests a disconnect between the current laws and public sentiment about fair and legitimate convictions for murder and manslaughter. There was also the case last week of a juror in a murder trial imprisoned for doing their own research about joint enterprise laws.
The 2016 Supreme Court ruling on Jogee was widely hailed at the time as a turning point. The Supreme Court recognised that the law has taken “a wrong turn” by allowing foresight of another person’s act to substitute for intent. Yet, nearly a decade later, evidence suggests the change has done little to curb the injustices associated with joint enterprise prosecutions.
Research by the Centre found no significant reduction in homicide convictions involving multiple defendants since the 2016 ruling, a finding echoed by several other studies and practitioners. Most recently, court observation research found prosecutions still rely on tenuous inference about foresight or association rather than more concrete evidence.
The human impact
Behind the legal terminology is a human reality. Complicity laws have been used to charge, prosecute and convict people – frequently young men, disproportionately Black – of murder or manslaughter even when they did not wield a weapon, cause an injury, or intend anyone to die. Many cases arise from chaotic, fast-moving, and tragic situations involving groups of young people and spontaneous violence.
The results can be devastating: life sentences for those who were, at most, on the periphery of a tragic event; communities losing faith in a justice system that appears to criminalise association rather than conduct.
Potential for progress
For those convinced by the need for reform, the Law Commission’s homicide review offers a rare opportunity to confront some of these problems. Albeit one that should be approached with some caution. The Law Commission’s last review of complicity nearly twenty years ago was relatively cautious in its recommendations. Homicide, particularly the two-tier framework of murder and manslaughter, has proved impervious to the Law Commission’s previous proposed reforms, which successive governments have failed to implement.
The scope and breadth of the current review is huge. How the Commission will bring together any proposals on complicity in homicide with other potential changes, particularly to the tiered framework for homicide offences, will be important. Our submission to the Commission highlights several areas where progress could be made within this review’s terms of reference. Key amongst them are:
- A clear minimum threshold for secondary liability. One constraint to the current problematically vague laws could be proposing a threshold or test for what constitutes minimum conduct or role in a homicide offence. This principle underpinned the Significant Contribution Bill in 2024, which suggested a test based on conduct as a clearer, fairer test for liability.
- Change sentencing rules for secondary parties. The current mandatory minimums – 25 years in cases involving a knife – apply to all those convicted, including those convicted on the basis of secondary liability. Sentencers have little discretion to reflect different, lesser degrees of culpability. The Commission could consider a separate sentencing framework for secondaries and abolishing lengthy mandatory minimums for secondaries.
- Acknowledge the role of discrimination and bias. Research continues to show that racialised assumptions shape how complicity laws are applied. The Commission should make clear recommendations to improve oversight and transparency in police and Crown Prosecution Service charging practices, including a role for external agencies and challenge.
Chance for change?
The Centre has been researching and advocating about joint enterprise for over a decade, as have many others, including, most prominently, JENGbA. False dawns, raised expectations, and dashed hopes are familiar.
Complicity laws sit at the intersection of many forces: deeply held public fears about violence, political pressures and longstanding racist biases among them. If the Law Commission can use this review and their eventual recommendations to restore coherence and proportionality – especially for young people and those peripherally involved – it will have taken a crucial step toward a fairer justice system. I hope the Law Commission will seize that opportunity. In the meantime, policymakers including the Justice Secretary should have the courage to follow where the evidence – and their previous commitments – leads.
We are grateful to the Barrow Cadbury Trust for their support for this work.
