The Lord Chief Justice is the UK’s most senior judge and has particular responsibility for the administration of criminal justice in the courts. When he suggests that the ‘fiendishly difficult’ law of murder needs reform, you might think that people would sit up and pay attention.

On 6^th December 2011 Lord Judge told a press conference: ‘It is sometimes felt that in the long run the complications [in the law] leave a sense of injustice about how an individual case has fitted into the framework overall. I would have thought myself that a careful consideration of reform of the law of murder might reduce the call for the automatic sentence to be removed.’ He also spoke of the difficulties in the legal doctrine of ‘joint enterprise’ which prosecutors use against people who are marginally involved in group violence that leads to a killing.

There is a serious mismatch between the law that allows people who are very remotely connected to a killing to be found guilty of murder, and the law that requires everyone convicted of murder, whether the actual killer or the fringe member of a gang, to be get the same sentence: life imprisonment. One or the other or both must change.

A little legal background. The law distinguishes between ‘principals’ – people who are directly responsible for committing offences, and ‘secondary parties’, who are guilty because they have indirectly participated in a ‘common design’ with the principal but may not have performed the criminal action with him.

But, in practice there are three forms of ‘joint enterprise’ liability:

1. Where two or more people commit a single crime together, all as joint principals, for example when three robbers together confront bank staff.
2. Where defendant 2 (D2) aids and abets defendant 1 (D1) to commit a single crime, for example where D2 provides D1 with a weapon for use in a robbery, or acts as getaway driver, or gives encouragement (as, notoriously, with ‘let him have it, Chris’ in the case of Derek Bentley).
3. Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a second crime (crime B) which D2 had foreseen he might commit.

Common design

The difficulties arise in case 3 and are laid bare when the law deals with group violence that ends in a killing. The classic case would involve a showdown between two gangs of youths. They charge around in a park shouting and waving knives at each other. One gang beats a retreat, however the second gang chase a straggler.  They catch up with him and stab him. He dies on the spot. The killing takes place out of sight of gang member X, who was at the back of the second gang and did not know about the stabbing until afterwards. Now, if he went to park intending to do some violence in the showdown with the first gang, and he foresaw that someone else in his gang might kill or seriously injure another person, then he is guilty of the murder as much as the stabber. The judges have developed the doctrine of joint enterprise to make this possible.

So joint enterprise makes X guilty of murder without intending to kill or seriously injure anyone  – the necessary mental elements that must be otherwise be proved in murder. He did not use a weapon. He did not see the weapon being used. He did not know that a killing had occurred. He is guilty because he joined in another, prior ‘common design’, and foresaw that some one else might kill or cause serious injury.

He will get a life sentence: the minimum time he has to serve before he can be considered for release on licence may be shorter than the actual stabber’s but it is a life sentence nonetheless.

Can a conviction for murder on that basis be justified, and if so should it call for the same sentence as the real killer gets?

Worrying regularity

The meaning and application of joint enterprise in murder cases has occupied the country’s most senior judges in the House of Lords/Supreme Court and the Court of Appeal (Criminal Division) with worrying regularity over the last 20 years, and each time the Court has given subtle but important variations to its statements of what the law is. (For reference, the leading cases are R. v Powell & English (1999) House of Lords; R. v Rahman (2009) House of Lords; Yemoh (2009) Court of Appeal; Mendez (2010), Court of Appeal;  R. v A (2010), Court of Appeal)).

Another case, Gnango (2010, Court of Appeal) shows how far the Courts have been prepared to go and is worth looking at in more detail. Gnango (G) and some one referred to as ‘Bandana Man’ (B) had a gun fight in the street. A shot from B’s gun killed a passerby. Bandana Man ran away. A jury convicted G of murder, having been directed that if they thought G and B had taken part in the joint enterprise of affray (ie the unlawful violence in the gun fight between themselves), and if G realised that B might kill someone by shooting, then G was guilty of murder.

The Court of Appeal unusually assembled five of its most senior judges to hear the appeal (the usual number is three). They decided that the judge’s directions went too far – they thought that the killing by B of the passerby was too far outside the scope of the joint enterprise (G and B to shoot one another) for G to be guilty of her murder. The prosecution appealed to the Supreme Court, including Lord Judge. In a judgment given yesterday (December 4^th 2011) they upheld the conviction by a majority of 6-1. They took a broad brush approach, deciding that G and B had chosen to indulge in a gunfight in a public place, each intending to kill or cause serious injury to the other, in circumstances where there was a foreseeable risk that this result would be suffered by an innocent bystander. It was a matter of chance which of the two fired what proved to be the fatal shot.

Gang violence

So liability depends on joining crime A and foreseeing that crime B might occur. That is a very open-ended basis for convicting people. The sheer number of times that joint enterprise has come before the highest appeal Courts clearly suggests that trial judges, and maybe the appeal judges themselves, are having difficulty in formulating and applying the law correctly. If they struggle, what are teenagers who may get caught up in group violence meant to think? You going along for what may be an ugly bit of fighting – perhaps sparked off by an immature row outside the school gate. Things get out of hand and some one pulls a knife – a boy is killed – and you can be found guilty of murder if you foresaw or realised that it might happen. Please note: ‘might happen’; not ‘would happen’. Might happen.

Of course gang violence is a scourge in some places in the UK; and people die pointlessly in gang fights. Their families’ lives are destroyed. There is an undoubted public interest in discouraging and preventing gang violence, and the criminal law has an important role to play. Lord Brown expressed the view in Gnango that the general public would be ‘astonished and appalled if in those circumstances the law attached liability for the death only to the gunman who actually fired the fatal shot (which it would not always be possible to determine)’.

He may well be right – in those circumstances. However, the trouble with the present law is that it allows prosecutors to cast the net too wide in some cases, and to draw in people who on a common-sense view are too remote from the killing to share full responsibility for it. The result is an increased risk that the wrong people end up with convictions for murder. Are we comfortable with a law which, in effect, allows a jury to say: ‘You were there or thereabouts; you were in the gang; you didn’t kill but we think you all must pay?’ When the Lord Chief Justice speaks of a ‘sense of injustice about how an individual case has fitted into the framework overall’ this is not the voice of a wet liberal – as can be shown in the line he takes in Gnango.

If we need to convict people on this basis, shouldn’t we at least allow the sentencer to draw a distinction between the person who has pulled the trigger and his co-defendant who went along and merely foresaw that some one might be killed?

While the life sentence remains the only sentence for all kinds of murder, how can that be just? Andrew Jeffries QC and Kim Evans write about the problems in the one-size-fits-all sentence elsewhere on www.thejusticegap.com (see HERE) focussing on mercy killings getting the same sentence (apart from the tariff) as gangland executions. The same issue arises in joint enterprise – there must be a better and more flexible way of measuring degrees of culpability in sentences.