Joint Enterprise On the Ropes
Joint enterprise is one of the great scourges of the criminal justice system.
The law as it currently stands allows someone to be charged with a crime that has actually been committed by someone else if it is believed that they foresaw the crime and intended to encourage or assist the other person.
It has led to some incredible decisions that, in the absence of context, resemble the legal system of a third world dictatorship more than England and Wales.
In the Tas case decided by the Court of Appeal in 2018, the defendant went into a students halls of residence knowing that there would be a fight but with no knowledge that one of his friends was carrying a knife. The victim was ultimately stabbed to death but Tas had fled the scene before that point and even before a knife was produced.
Nevertheless, the manslaughter conviction was upheld. The Court of Appeal held that while the use of a knife was certainly an escalation of events, it was not enough to constitute an ‘overwhelming supervening act’ as required by the law.
Many had hoped that the extremely harsh way in which this area of criminal law operates had been tempered in 2016 by the Supreme Court decision in Jogee.
That case overturned previous authority and held that a defendant must have “knowledge of the essential matters constituting the offence” before they can be convicted under the principle of joint enterprise.
This appeared to set a much higher threshold, but cases like Tas demonstrate that this was a false hope.
In those proceedings it would have been tempting to think that if Tas did not know about the knife then he did not have “knowledge of the essential matters constituting the offence” but the trial judge held that this was more a matter of evidence instead of being a legal matter that excused the defendant from the joint enterprise.
In essence, the law still fails to operate with anywhere near the nuance you might expect from a modern criminal justice system.
Things could finally be set to change as the Westminster Commission on Joint Enterprise continues to collect evidence with a view to reforming the law.
In particular, the all-party parliamentary group on miscarriages of justice have expressed concern that joint enterprise has a tendency to unfairly and disproportionately affect young black men.
According to statistics from the Crown Prosecution Service, black people represent 30% of joint enterprise defendants but only 4% of the population. In comparison, 39% of defendants are white but make up 82% of the general population.
This framing of the question feels somewhat unnecessary.
There are many areas of criminal law where black defendants are overepresented. Understanding why that is the case is a complex sociological problem that extends far beyond the remit of the Commission.
In the context of joint enterprise the reason is simple: the law is broken.
It has taken many years but, at long last, things might be about to change.
Keep an eye out for the podcast in the next couple of days. With plans across the bank holiday weekend, I haven't had a chance to record but hope to do so very soon.
Make a difference today,
Marcus