MPs call for urgent review of joint-enterprise law

http://www.theguardian.com/law/2014/dec/17/joint-enterprise-law-mps-call-review

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An urgent review of joint-enterprise prosecutions is needed to prevent “over-charging”, MPs will warn on Wednesday, amid fears that the doctrine is being exploited as a dragnet to haul in young men from ethnic minorities.

In a highly critical report, the Commons justice select committee suggests that many people convicted of murder under the complex legislation should have been charged with manslaughter or lesser crimes, and that the threshold for establishing culpability should be raised.

The long-established principle of joint enterprise allows defendants to be found guilty of offences committed by another person if they have agreed to act together for a common purpose. Problems arise around what are said to be reasonably foreseeable consequences of any agreement.

Almost 500 people are thought to have been convicted of murder between 2005 and 2013 as secondary parties in joint-enterprise cases. Many were recorded as gang-related attacks.

A large proportion of those convicted were young, black and mixed-race men, the report notes. One research sample found that 37.2% of those serving long terms for joint enterprise offences were black – 11 times the proportion in the general population and almost three times as many as in the overall prison population.

“Some witnesses to the inquiry used the metaphor of a ‘dragnet’ to describe the operation of joint enterprise,” the committee says, “claiming that it was hoovering up young people from ethnic-minority communities who have peripheral, minor or in some cases even non-existent involvement in serious criminal acts, along with the principal perpetrators of those acts, and imposing draconian penalties on them.”

There is mounting concern about the way the courts interpret joint enterprise laws. Last summer the BBC screened the drama Common by the playwright Jimmy McGovern and followed it up with a documentary entitled Guilt by Association.

The justice select committee’s report is its second inquiry into joint enterprise in the past three years. It focuses particularly on murder cases, where mandatory life sentences remove most of a judge’s discretion to hand down differential sentences to secondary participants.

“The low threshold of culpability for secondary participants is behind the sense of injustice harboured by many of those convicted of murder under the doctrine,” the report states. The campaign group Joint Enterprise Not Guilty by Association (JENGbA) argues that it has led to widespread miscarriages of justice.

The MPs criticise the Ministry of Justice for failing to provide adequate statistics on joint-enterprise cases. All homicide cases brought under the doctrine should be recorded, they urge, including details on the age, gender and ethnicity of those charged.

Among well-known joint-enterprise cases are the convictions obtained against the killers of Stephen Lawrence, who was stabbed to death in a racist attack in south London in 1993, and Ben Kinsella, a schoolboy knifed in north London in 2008. Both cases, the report says, are “widely referred to as examples where the use of the doctrine of joint enterprise has secured convictions which have met with widespread public approval and support”.

But the committee also heard from Janet Cunliffe, whose teenage son, Jordan, is partially blind and was convicted of murder under joint-enterprise for his role in the death of Garry Newlove in Warrington in 2007. She said he was convicted solely because he could not see where he was and thus contradict prosecution claims. McGovern has supported Cunliffe’s case.

The low success rate of appeals against joint-enterprise convictions should not be taken as a comforting sign that there are few miscarriages of justice, the committee’s report notes.

“There are particular difficulties with bringing successful appeals in joint-enterprise cases,” it says. “The concerns are, rather, with whether the doctrine, as it has developed through case law and is now being applied, is leading to injustices in the wider sense, including through a mismatch between culpability and penalty.”

The committee concludes that the Law Commission should “undertake an urgent review of the law of joint enterprise in murder cases” and “consider the appropriateness of the threshold of foresight in the establishment of culpability of secondary participants”.

The commission should also consider making it impossible for secondary participants who did not encourage or assist the perpetrator to be charged with murder. Instead, manslaughter or lesser offences should be considered. The commission should complete the review by the end of next year.

Sir Alan Beith, chair of the select committee, said:” It is noticeable that black and mixed-race young men are disproportionately represented among those convicted under joint enterprise.

“Some have argued that the doctrine has an important effect in deterring young people from getting involved in criminal gang activities, but others are sceptical about this. We say that there is a real danger in justifying the joint-enterprise doctrine on the basis that it sends a signal or delivers a wider social message, rather than on the basis that it is necessary to ensure people are found guilty of offences in accordance with the law as it stands.”

Stephen Lawrence murder

Joint enterprise was used in the eventual conviction of Stephen Lawrence’s killers.

In 1993, the 18-year-old was murdered in a racially motivated attack in south-east London. Five white youths were involved in an attack which led to Lawrence being stabbed to death.

In 2011, the case reopened in the light of new evidence and, even though it was impossible to say who had inflicted the fatal wound, two people were prosecuted for the joint enterprise of the murder. Gary Dobson and David Norris were ordered to serve a minimum of 15 and 14 years respectively for Lawrence’s death.

The prosecution argued that it did not matter whether the pair had carried out the actual stabbing – rather, it was important that they were part of an attack that could end in serious harm. The judge told Dobson and Norris: “A totally innocent 18-year-old youth on the threshold of a promising life was brutally cut down in the street … by a racist, thuggish gang. You were both members of that gang. I have no doubt that you fully subscribed to its views and attitudes.”