Thursday, 19 January 2012

Joint Enterprise

On 19 October 2011, the House of Commons Justice Committee. announced an inquiry into the aspect of secondary liability in a criminal venture commonly known as joint enterprise. The inquiry was prompted by dissatisfaction with the operation of the doctrine amongst campaigning groups. Concerns were expressed both by groups representing victims and groups representing those who believe they have been convicted following a miscarriage of justice.

The Committee has now issued its report - "Joint Enterprise" - 11th report of Session 2010-12.  The Preface to the report states - "Having examined the law in this area, and heard from witnesses who have recent experience of the operation of the doctrine, both as the victims of crime and as defendants’representatives, we have concluded that joint enterprise should be enshrined in statute to ensure clarity for all involved in the criminal justice system. While we recognise that there are particular problems with the operation of the joint enterprise doctrine and murder, we feel strongly that reform in this area should not have to wait for a wider review of the law on homicide."

In response to the report, the Director of Public Prosecutions issued a statement indicating that the CPS will now produce guidance on the approach it will take to cases of joint enterprise, including guidance on the proper threshold at which association potentially becomes evidence of criminality.

The Guardian 18th January carried an article - "When should one gang member take responsibility for the actions of the others?"   The article states that
- "Central to the prosecution case in the Lawrence murder trial was the fact that it did not matter whether the pair had carried out the actual stabbing, but whether they were part of an attack that could clearly end in serious harm."

and, later ...

"We live in a punitive, post-riots world where there is little sympathy for anyone who hangs out in a gang. The argument is being made that the joint enterprise rule helps discourage young men from being part of knife-wielding gangs and that lives are being saved as a result. But the evidence the appeal courts will be hearing over the coming months will show that some young men who played, as the report has it, "a very minor part in a very serious offence", have a case that demands to be heard."

Law and Lawyers looked at Joint Enterprise previously: see Joint Enterprise 30th January 2010 and 30th July 2010.

It remains to be seen whether the Justice Committee's call for legislation will be heeded and, if so, what form it will take.  This is, yet another, subject to which we shall doubtless return.

See blogpost - The Justice Gap - "Joint Enterprise: Confusing Juries and Courts" and "Tenuous Evidence: Unjustified Inferences"

Francis Fitzgibbon QC - "Joint Enterprise"

Panorama programme November 2009 – “Joint enterprise: who is guilty.”


  1. "Joint Enterprise" also known as "Common Purpose": there is enough history of it in case-law in England and other Common Law jurisdictions for the principle to be recognised by legislators, jurists and citizens as necessary.

    As with "Conspiracy", for example, Common Purpose is open to abuse by the State, as has happened in other countries more often than England (cf. apartheid-regime South Africa) but citizens, as individuals, can't avoid their responsibilities to withdraw from collective criminal action if they don't want to suffer the consequences (I would add their responsibilities to support the State but many people find that concept too difficult).

    There may indeed be a need to "riot" or otherwise demonstrate strongly at times but nobody *has* to loot or vandalise or abuse and anybody caught up in such events, as happens , can withdraw themselves without
    "betraying" their companions.

    Those who stay in crowds, gangs or other groups that break laws must expect to be open to have action taken against them, whether or not the laws broken are "just" or not. This applies in civil law to, for example, mass trespassers, regardless of how peaceful they are.

    Malicious prosecutions by the State can be countered by (once again) The Rule Of Law and open justice in a democratic country- so no secret trials for any reason, anywhere, anytime (another current concern) - as ever, as said before, when considering The Law, we come back to basic principles of liberty, responsibility and democracy.

  2. Some years ago I set up the Prison Law Advice Centre in Nottingham Prison. I picked up where the criminal law left off. One day I received a begging letter from the mother of a 15 year old boy asking me to take up his case because appeals had been exhausted and no solicitor or barrister would show any more interest. I wrote back that I specialised in prison law and not criminal law, but if she would send me all the paperwork I promised to have a look at it to see if anything jumped out at me.

    One of my first impressions was the similarity between the English/Weddle case and Bentley/Craig case. Another impression was because the murder victim was a Police Seargeant English did not get proper representation and the courts gave him substandard justice.

    Recently I had read The Plough Boy by Tony Parker. It was the story of Michael Davies who in 1953 stood trial at the Old Bailey, charged with stabbing to death in Clapham Common a young boy in a gang-fight. He was sentenced to death and his appeals to the Court of Criminal Appeal and the House of Lords were dismissed. He spent in all 92 days in the condemned cell until he was reprieved by the Home Secretary who commuted his his sentence to one of life imprisonment. Of this he served seven years before being released on life licence. But Davies maintains, and has always maintained, that he was innocent.

    English claimed that at the time Weddle stabbed Sergeant Forth to death, he was at least 100 yards away under arrest and in police handcuffs.

    I had read about joint enterprise and had doubts about it being fair. But, with a life sentence at stake I had to cover the subject in greater depth.

    It was an extract from the Court of Criminal Appeal in the Davies case before the Lord Chief Justice of England (Lord Goddard), Mr Justice Sellers, and Mr justice Barry that gripped my attention. Mr Justice Sellers, delivering the judgment, said: "The fact that they were making an attack with their fists and perhaps by kicking too, does not in itself associate them with the attack by one of their number with a knife".

    The defence team had not referred to the Davies case, nor was it referred to by the prosecution or judges. For me Mr Justice Sellers opinion appeared to run contrary to the principles laid down on joint enterprise. I formed the opinion that it fitted the facts in the English/Weddle case. To cut a long story short, English's mother was able to convince a solicitor that I was right and the QCs, barristers and solicitors and Court of Appeal was wrong. The solicitor obtained Legal Aid and instructed a QC and the case went to the House of Lords and the appeal was successful and Philip English had the murder conviction quashed.

    Philip English case

  3. great blog....
    thanks for posting your experience on legal matters.....
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