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For the first time last month the Supreme Court looked at the highly contentious common law doctrine of joint enterprise in the test case of R v Jogee, covered on www.thejusticegap.com here.

Joint enterprise allows for several people to be prosecuted for an offence, without differentiating their roles and culpability, as long as it can be shown that all parties were in some way involved. The doctrine originally developed some 300 years ago, supposedly as a way of prosecuting duellers and their associates, but has seen a revival in recent years due to the increase in offences involving gangs. Supporters have advocated for the use of joint enterprise in cases involving paedophile rings and white collar crime and have argued that without it the killers of Stephen Lawrence would still roam free.

The Court of Appeal has defined joint enterprise as existing in three forms:

• The first form involves all the parties committing the same crime together in the same way making them equally liable. So for example, if two people go on a shoplifting spree together and they both remove items without paying for them they are both seen as equally culpable and should therefore be charged accordingly. Strictly speaking, this could more accurately be described as a conspiracy.
• The second form of joint enterprise arises where one assists or encourages another to commit a single crime; both are again held to be equally liable as the offence could not have been committed without the involvement of both parties. The example most commonly cited of this is that of a bank robber and his getaway driver. Because the driver is aware that his friend is going to commit the robbery both are equally culpable, the robber as the principal and the driver as an accomplice. However, things become tricky as joint enterprise allows for the driver to be convicted of the robbery even if the robber is not. Moreover, it also allows for the girlfriend of the robber to be convicted if she knew that her boyfriend would attempt the robbery and ‘encouraged’ the robbery in any way but was not involved with the fulfilment of the robbery.
• The third and final form involves participants being involved in a crime together when one of the participants then commits a second crime which the other participants ‘could reasonably have foreseen’ occurring. For example, whilst carrying out a burglary the participants are disturbed by the householder and he is killed by one of the participants who either intended to kill him or at least cause him serious harm.
  If the other participants could ‘reasonably foresee’ that one of their numbers might commit a criminal act with intent to kill, or do really serious bodily harm, then they too will be liable for the death. The participant who causes the death of the householder is guilty of murder. However the principle of joint enterprise means it is not necessary for the other participants to have the same intention, or for them to do anything at all to assist the ‘killer’ for them also to be guilty of murder.

It is the second and third forms that have practitioners and academics alike calling for reform.

Think about it, how easy is it to ‘foresee’ what someone else is going to do. Most young people cannot foresee what they want for dinner let alone the actions of others who they happen to be with or may not know very well. ‘Encouragement’ can be provided simply by your presence e.g. standing and watching while someone else has a fight. Similarly, if the murder of Stephen Lawrence had been competently investigated in the first instance the lazy prosecution option of joint enterprise would not need to have been employed.

It is not merely because of the arbitrary application of the principle – it’s a finding of guilt by association – but also because of the discrimination that is inherent in the courts’ application of joint enterprise. Studies have shown that the doctrine disproportionately affects young people, predominantly young males of Black and Minority Ethnic (BME) groups. Of those convicted under the doctrine of joint enterprise one third are BME. Given that only 12% of the general prison population are BME this is almost three times higher than expected. The group Joint Enterprise Not guilty by association (JENGbA) reports that of the 500 joint enterprise prisoners they represent over 80% are black.

With statistics like these it’s understandable that the decision of the Supreme Court is awaited with baited breath. However, this is not the first time that the need for reform has been highlighted. In both 2012 and 2014 the Commons justice committee released reports critical of the current law yet, other than a guidance document created by the Crown Prosecution Service, nothing has been done to clarify or improve this area of the law and its application.

Guilt by association is a hard lesson for a young person to carry through life without feeling hard done by. The danger is that the Joint Enterprise doctrine contributes to young people’s disrespect of the law if their experience of it or the experience of those around them seems unfair. Let us hope that the Supreme Court will take this into consideration and realise that a law designed for the 1500’s should be permanently consigned to the 1500’s.