The legal dragnet Joint enterprise law and its implications
Focusing on homicide cases, this report discusses the current joint enterprise laws, expressing concerns as to its vagueness and width in scope, which can in turn increase the risk of systemic injustice, including over-criminalisation and over-punishment, especially for young black men and teenagers.
Details
Joint enterprise, also known as secondary liability, refers to legislation by which multiple individuals can be prosecuted and convicted for the same crime. Despite being a non-legal term, it is widely used to refer to both co-principals and cases where one principal is joined by secondary parties.
The report by Nisha Waller highlights several concerns relating to the fairness and racial implications of joint enterprise (particularly in murder convictions), which have prompted calls for reform over the past decade.
After consultation with experts and interviews with young Black members of the community prosecuted or convicted as secondary parties to murder (and/or their relatives), the report flags the following main concerns:
- The use of the ‘gang’ label, often leads to their over criminalisation. The Crown Prosecution Service has noted that misapplying this label can unfairly broaden liability, and there are concerns about its discriminatory use. Young Black people frequently live in areas labelled as having a ‘gang problem’ and are thus more likely to be unfairly associated with gangs. This association can occur even if they have no direct involvement in criminal activities due to biased policing practices. When a defendant’s involvement in a crime is less clear, the gang narrative can assist prosecutors in constructing collective intention amongst defendants by creating a context that suggests shared motives, mutual knowledge, ongoing criminal intent or portraying a criminal lifestyle. This strategy can increase the likelihood of conviction by reinforcing prejudiced assumptions and narratives about the defendant.
- Prosecutorial imprecision with speculative inferences. In criminal trials, the prosecution has significant freedom in how they present their case, which may lead to the crafting of a narrative of criminalisation, especially when direct evidence of intent or substantial physical involvement is lacking. As the current legal standards do not enforce strict requirements for proving a secondary party’s involvement, this can lead to cases built on imprecise or poor-quality evidence, allowing for speculative inferences about the defendant’s role, which can, in turn, result in less rigorous case construction and a focus on maximising convictions rather than ensuring evidence quality.
- The use of the ‘gang’ label, often leads to their over criminalisation. The Crown Prosecution Service has noted that misapplying this label can unfairly broaden liability, and there are concerns about its discriminatory use. Young Black people frequently live in areas labelled as having a ‘gang problem’ and are thus more likely to be unfairly associated with gangs. This association can occur even if they have no direct involvement in criminal activities due to biased policing practices. When a defendant’s involvement is unclear, prosecutors might leverage the gang narrative to create a context that suggests shared motives, mutual knowledge among defendants, ongoing criminal intent or portraying a criminal lifestyle. This strategy can increase the likelihood of conviction by reinforcing prejudiced assumptions and narratives about the defendant.
The report also reflects on the ongoing efforts for action on this issue, including legislative proposals contained in the Joint Enterprise (Significant Contribution) Bill that were made earlier this year.
Commentary
Joint enterprise laws, with their broad and vague parameters, appear to suffer from structural flaws, exacerbating the risk of systematic bias against marginalised communities, especially Black young people. Such flaws in the legal framework may not only lead to wrongful convictions but also may perpetuate a cycle of over-criminalisation and disproportionate punishment. This is not just a problem of legal interpretation: it represents a dangerous practice that may lead to harsh penalties for individuals who may have had minimal or no actual involvement in the crime.
The Joint Enterprise (Significant Contribution) Bill could represent a key opportunity to address these issues. Alongside legislative reform, it is critical that police and prosecutors apply greater rigour and precision in determining each defendant’s role in cases involving secondary liability, as well as ‘gang’ labelling. Criminal defence lawyers have a critical role in challenging these prosecutions and evidence.
For more practical information, see our legal guides on fighting racial injustice including https://yjlc.uk/resources/legal-guides-and-toolkits/3-fighting-racial-injustice-rap-drill
Written by
Fabio Pazzini, Associate, Paul Hastings LLP