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Joint Enterprise: The Past, Present and Future

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The highly controversial UK legal doctrine, joint enterprise, which is now referred to as secondary liability, has come under fresh scrutiny. Secondary liability treats the accomplice to a crime committed the same as the person who actually committed the violent act, even if there is no proof as to who physically carried out the crime. For decades, joint enterprise has featured regularly in the prosecution of homicides in the UK, particularly in cases of gang violence and groups of young male offenders.

What makes secondary liability so contentious?

Many believe secondary liability results in people who are partly involved or not involved in the crime at all, to be convicted based on the situation in which they were all acting as one, together.

Secondary liability is so contentious due to its very definition and make-up. The contentiousness of it can be seen in murder cases, where it does not distinguish between a member of a group that dealt the fateful blow and another who did not intend to kill or harm the victim. There would be enough to prosecute them on the grounds of secondary liability for foreseeing that a member of the group “may” kill, or “may” cause serious harm to the victim. If someone is found guilty of even the lowest level of culpability, then they will be convicted of murder and receive the UK’s mandatory life sentence.

Lack of joint enterprise statistics

There are no official statistics collected by the UK government on secondary liability statistics and officially a secondary liability murder is still classified as murder. It is therefore difficult to get a whole picture of whether secondary liability prosecutions are on the rise or not.

However, in April 2015, the Investigative Journalism Bureau requested to scrutinise joint enterprise cases under the Freedom of Information. The report discovered that in the previous eight years in homicide cases involving two or more defendants, there were more than 4,500 people prosecuted in the UK. This figure represented 44% of all homicides studied. Within the same study, it found that a fifth of all cases brought to court involved more than four defendants, with 1,800 people being prosecuted under what it concluded would depend on convictions of joint enterprise.

One of the biggest changes to UK law

In February 2016, the Supreme Court ruled that the joint enterprise law had been wrongly interpreted for more than 30 years. The Supreme Court judges concluded that it was wrong to treat “foresight” as sufficient to convict someone of murder.

Many believed that this change to UK law would pave the way for hundreds of prisoners seeking appeals. However, the Supreme Court assured that any appeals would have to show that they would suffer substantial injustice if they were not allowed to file an appeal. If a death occurred in their case, the Supreme Court stated that even if they do appeal, they could still receive a conviction of manslaughter if it was deemed that they knowingly joined a crime which could cause harm to another person.

This change to the joint enterprise ruling never challenged the basic principle that someone could be considered as guilty as the person carrying out the act, just for assisting or encouraging that person. Ultimately, this change to the law is all about justice and how it has to be applied to all, as juries are still able to decide that the number of people involved played a significant part in the outcome and can, therefore, be classed as a joint enterprise.

Racially disproportionate convictions

Since the report by Investigative Journalism and the change in the law, there has been an increase in academic research into secondary liability convictions. Many of these reports conclude that the secondary liability law is being disproportionately used against black and mixed-race defendants.

According to one study, the number of black and mixed-race people serving time under secondary liability is at 11 times their presence in the population as a whole. This was backed up by a Cambridge University study of the cases of 294 people under 26 who were sentenced to 15 years or more. They found that over half of their sample were convicted under joint enterprise and within this group, more than half were black or mixed-race.

Prison doors remain closed

Whilst many believed that the change would open prison doors to those convicted, the reality is that in the last two years, very little has changed. In January 2018, there was a cross-party motion calling on the government to review the secondary liability laws again, as no successful appeals against the conviction had occurred since the law changed in February 2016.

However, in April 2018, John Crilly, who was given a life sentence for murder and robbery in 2005, became the first person to be released from prison following the change to the joint enterprise law in 2016. Pleading guilty to manslaughter, Crilly’s murder conviction was overturned and was set free due to the time served in what has become a landmark case. The Crown Prosecution Service has since re-written its secondary liability prosecution policy, with a constitutional document circulated at the beginning of July 2018 to interested parties who have until the end of September 2018 to issue their feedback before any policy changes are formalised.

What to do if you have been convicted of a crime under secondary liability

If you have been convicted or charged under secondary liability in the UK, it is best to appoint an expert criminal defence solicitor to represent you, such as the criminal defence team at Carter Moore. Your solicitor will be an expert in criminal law and will draw upon years of experience and knowledge. Carter Moore’s team of criminal defence solicitors in Manchester have worked across a wide range of high profile criminal cases and can guarantee to provide the same quality representation for your own case.