In England, unlike some other jurisdictions, there is only one category of murder and only one type of sentence that flows from a conviction, a mandatory life sentence. Yet the common law doctrine of joint enterprise gives rise to the potential for a result that is unjust and bears little resemblance to the role of the individual defendant accused. There is a growing call for urgent change – for example, in the new Jimmy McGovern play Common (broadcast last night) and from JENGbA (Joint Enterprise: Not Guilty by Association, a grass roots organisation set up by families adversely affected). It is one that will be considered by a second parliamentary committee, announced in May this year.

• You can watch Jimmy McGovern talking to the JusticeGap here
• For more on joint enterprise, read this here
• You can read Francis FitzGibbon QC’s review of Common here
• Vote in the JusticeGap poll – Is it time to scrap the doctrine of joint enterprise? – on our home page – www.thejusticegap.com

‘When it’s homicide there’s nothing, there’s just no flexibility in the sentencing. Joint enterprise is bad anyway – but when joint enterprise is tied up with homicide it’s doubly bad.’
Jimmy McGovern

Why the need for change? If you were to ask members of the public if someone would be convicted of murder and sentenced to life imprisonment when he struck no blow, inflicted no violence of any kind himself, had no weapon and had no intention that the deceased should be caused really serious harm or death, many would answer with a resounding no. Yet it is sufficient to convict of murder if the defendant becomes a party to an enterprise with another in which he foresees that the other person might kill or cause really serious harm and he has not withdrawn from the enterprise at the relevant time.

If this doctrine of joint enterprise is applied to a real life scenario, the complexities can be seen. Laura Mitchell was convicted of murder and sentenced to life imprisonment. She had become involved in an unprovoked and violent attack with others on a group of people in a pub car park; the dispute was over a taxi. There was a lull in the violence during which others in Laura’s group went off to get weapons, whilst she remained in the car park apparently searching for her shoes. When the others came back, one of their number killed a member of the other group. Laura played no part in this attack. The person who struck the fatal blow pleaded guilty to murder. Laura was convicted of murder as the enterprise that she had joined at the time of the argument over the taxi was deemed to be ongoing at the time of the fatal attack and, because she remained present at the car park, she had not withdrawn from the enterprise. A mere change of heart was insufficient to withdraw from the enterprise.

The Court of Appeal, despite upholding the conviction, described the law on joint enterprise in murder cases as becoming immensely complex.

The doctrine dates back to the 1800s and developed in order to cover the criminality of those involved in duels. It is now applied in thousands of cases; according to statistics obtained by the Bureau of Investigative Journalism, between 2005 and 2013, 4590 people were prosecuted for homicides involving two or more defendants – see here.

These cases are far removed from the duel situation of old; the doctrine is often applied now to attacks involving gangs, predominantly made up of young people.

The benefit of the doctrine of joint enterprise to the prosecution is that convictions may follow where gang membership and presence at the scene in the group can be evidenced but, due to a lack of eye-witnesses and a wall of silence, the roles of individuals cannot.

The concern however is that the law is insufficiently clear to assist with the grey area between association and complicity. If you are associated with those responsible and do not prevent their actions, are you complicit in their crimes?

The law should not be unnecessarily complicated; its ambit and interpretation should be plain so that juries and judges alike are assisted with the potential grey areas. The recommendation of the Justice Select Committee in 2011 was that the doctrine should be distilled and plainly defined by statute. This should now be done. The doctrine of joint enterprise should not be abandoned, but convictions should reflect the level of culpability. There should be a clear way of reflecting the role that the individual had to play. The result should be one that meets the justice of the case.

The time has come to reclassify cases into murder and second-degree murder, in order that the role of secondary parties is marked and the mandatory life sentence is removed in those instances to reflect the different level of culpability.

The call is not to avoid responsibility altogether; in the words of Kenneth Alexander (who was with another who committed a fatal stabbing), although he himself had no weapon and threw no punch. ‘If I had not shown support of [the person who committed the stabbing] he wouldn’t have had the strength to do what he did.’ The call is simply to reflect the level of criminality of each individual accused.