Back in October 2011 the then-Director of Public Prosecutions, Keir Starmer, was facing the Justice Select Committee. The group was trying to get to grips with the complex legal doctrine of joint enterprise, a common law which allows for multiple defendants to be prosecuted for a single crime if it can be proved they were all ‘in it together’. The committee was keen to find out from the Crown Prosecution Service just how often the doctrine was used.
Wearily leaning on his hand, MP Elfyn Llwyd, told Starmer: ‘Nowadays, there are statistics to prove and disprove everything on earth. It seems to me rather strange that there are no statistics to show how often [joint enterprise] is being used.’
Llywd was to be disappointed. Starmer explained, the CPS does not hold records on how often, and in what cases the doctrine is used to prosecute.
But the pressure for quantifiable evidence was on. The CPS was sent off to collect what it could and, last week published figures showing that in 2012 and 2013 the CPS prosecuted 210 murder cases that involved two or more defendants jointly charged with murder. These cases involved 659 defendants.
However, out of context and in isolation these figures reveal little about trends in the use of joint enterprise, or even the scale of its use. Nor do they reflect the complications and individual stories behind the figures.
The Bureau spent eight months interviewing experts, surveying lawyers and digging into crime statistics to find out more about the law. They collated figures from the CPS for homicides involving more than four defendants, on the basis that these prosecutions would almost certainly have to have used joint enterprise.
The figures show that since 2005 there have been 1,853 people prosecuted in homicide trials that almost certainly used joint enterprise. This represents 17.7% of all homicide prosecutions during this period. The peak for homicide prosecutions involving four or more defendants was in 2008, with 20.4% of all homicides. The lowest rate was 14% of all prosecutions of homicide, in 2010.
In the same eight years 4,590 people were prosecuted for homicides involving two or more defendants – the category used by the CPS to show numbers of people prosecuted under joint enterprise.
Interestingly, the Bureau also found that the more defendants involved in a prosecution, the lesser the chances of securing a conviction. The average conviction rate for all homicides is 80.4%. Where there are two or more defendants the conviction rate drops to 76.7% and for four or more defendants it is 73.3%.
The Bureau also found a growing chorus of concern about the use of joint enterprise.
Interviews with dozens of legal experts, and a cross profession survey revealed widespread concerns about how the doctrine is used and its potential for injustice.
Lord Phillips, former Lord Chief Justice, told the Bureau: ‘Joint enterprise is capable of producing injustice, undoubtedly.’ And professor David Ormerod told the Bureau: ‘My complaint is that the law as it stands is not clear enough and could be made clearer. Unless the law is clear – and I’m not certain it is – then you increase risk of injustice. If the law is unclear, it can be applied in an inconsistent way. It’s possible because of the complexity of the law, that it has been applied incorrectly.’
One of the main concerns about the use of joint enterprise in murder trials was the worry that the necessary intention for the offence does not have to be fully established for all defendants.
Usually in murder trials the prosecution has to establish what happened (the actus rea) and the intent behind it (the mens rea). In a joint enterprise conviction the prosecution is not bound by proving the secondary parties intended the act to happen, only that they were an encouraging factor. Some 38 out of the 43 of those who responded to the question in our survey asking about concerns, found this to be worrisome.
Another key concern for legal experts was the issue of mandatory life sentencing for murder convictions, which can mean that those of the periphery of a killing may end up with excessive sentences.
Professor Graham Virgo of Cambridge University said: ‘My main concern is that a defendant can be convicted for murder, with the mandatory life sentence, even though he or she did not cause death and did not have the intention to kill or to cause serious injury.’
In one case looked at by the Bureau a 15-year-old was sentenced to a minimum term of 12 years for murder after the jury found his presence at the scene of a stabbing meant he was guilty of murder. Although 120 yards away when the crime took place the jury found that the teenager had gone along to the scene knowing a fight could occur, and had had the foresight a murder may happen. His solicitor Greg Stewart explained to the Bureau, ‘[Joint enterprise] covers such wide elements of behaviour and intent that it becomes a lottery if you are convicted or not.’
Francis FitzGibbon QC, a barrister who has defended many people in joint enterprise explains the key concern. Joint enterprise ‘can work like a drift net, catching little fish as well as big ones, and lumping them together. In murder cases, joint enterprise and the mandatory life sentence taken together can result in sentences out of all proportion to the culpability of offenders who were marginally involved.’
Court of Appeal
Given the concerns over how joint enterprise is used in convictions, the Bureau turned to look at how often those convictions are appealed. It was found that over a fifth of the court of appeal rulings published in 2013 involved an element of joint enterprise.
Analysis of over 800 published Court of Appeal rulings, also revealed that the rate at which joint enterprise cases were brought to appeal doubled between 2008 and 2013.
In 2008 11% of published Court of Appeal rulings dealt with convictions where there had been some element of joint enterprise. In 2013 the rate had increased to 22%, or 43 out of 194 published rulings.
Homicide charges were the most common form of joint enterprise conviction appealed in all three years analysed.
Despite the frequency with which joint enterprise homicide cases come before the Court of Appeal, convictions are very rarely quashed.
In the 38 joint enterprise homicide appeal cases analysed by the Bureau, only four were ever overturned.
Lynette and Shirley Banfield, who had been convicted of the murder of Donald Banfield had their convictions overturned after it was found that the original prosecution had erred in using joint enterprise to argue that the women had to be working in consort, and therefore the prosecution did not need to prove who did the deed.
Arfan Rafiq’s conviction for a joint enterprise murder was quashed in 2012 after the appeal court found the jury’s decision on the joint enterprise element was illogical. The jury had found him guilty of joint enterprise murder having for supplying a gun to the killer, but not guilty of possession of the weapon.
Sam Hallam’s conviction was quashed after new evidence showed he had not been at the scene of the crime, while Adam Joof was released after it was found that police officers had been interacting with a key witnesses, potentially contaminating his evidence.
It is much more likely a joint enterprise conviction will be upheld at appeal.
That was the case for Wayne Collins.
Collins was caught up in the 2011 riots and was sentenced to 18 years imprisonment for rioting and possession of a firearm with intent to endanger life, despite the fact, accepted at his trial, that he never held the weapon. In fact Collins maintains he did not know the gun existed before it was used, and CCTV footage proves he took no active part in the rioting and burning of a pub.
In December 2013, after much work on the part of his lawyers, his case came before the Court of Appeal. The appeal was fought on two grounds, firstly that the original trial judge’s oral instructions to the jury on how to reach a verdict may have confused them over the level to which Collins’ presence made him liable.
Collins’ appeal lawyers argued that ‘the very way the learned trial judge dealt with [the steps to verdict] exacerbated the problem,’ suggesting that by ‘ad libbing’ on the issue of the limits of presence, participation and second party liability the judge may have confused the jury in his oral evidence.
Secondly they argued that, given it was accepted that Collins took no active role in the events, had never touched the weapon in question, and was very much on the periphery of the action, that an 18 year jail sentence was ‘wholly disproportionate to what this defendant actually did’.
Acting QC James Wood told the appeal judge, Justice Leveson: ‘We are deeply concerned about the extraordinary length of this sentence.’ Wood also drew attention to the confusing nature of convictions sought through joint enterprise, telling the court: ‘It is not just me but many lawyers, and the public find it hard to understand joint enterprise, the system may need a lesser and more compassionate approach.’
In January 2014 Collins’ appeal was rejected on all grounds. Appeal judge Leveson said: ‘Not only did Collins encourage by his presence but, on the jury’s verdicts, he intended to do so in relation to the riot, the arson and the use of firearms directed at the police: this was participation in extremely serious offending.’
His legal team now plans to take the case to the European Court of Human Rights.
David Ormerod, chair of the Law Commission, explained: ‘Murder cases are tried by the most experienced judges and the most experienced counsel, but despite this they still come up for appeal. The list of appeals goes on and on.’
‘The outcomes of the trials and indeed of the appeals are often perceived as illogical or unfair,’ he added.
Alongside the widespread concerns uncovered in the Bureau’s report, come varying suggestions on ways to improve the doctrine.
None of the legal experts consulted by the Bureau suggested that the doctrine of joint enterprise should be scrapped, instead they advocated reform.
To try to address some of the concerns about joint enterprise, the then DPP Keir Starmer, drew up guidelines in December 2012. He said the guidelines would assist prosecutors ‘in deciding whether, and with what offence, suspects with minor roles in group assaults should be charged.’
The guidelines, directed at CPS prosecutors tasked with deciding what charges to pursue, warned: ‘Accidental presence at the scene of a crime or mere association with an offender is never enough to create liability – a suspect must assist or encourage the offence in some way.’
The guidelines also prompted prosecutors to consider other, lesser charges.
One option open to prosecutors was introduced in 2007, with the adoption of the Serious Crime Act. The Act introduced ‘inchoate offences’ to cover those culpable by aiding or encouraging crimes. Data collected through Freedom of Information requests to the Ministry of Justice reveals the use of inchoate offence charges is on the rise.
In 2009 there were 13 cases brought before the magistrates courts, in 2010 there were 47, in 2011 this rose to 121 and in 2012 there were 196 cases. There was then a slight drop off in 2013, where 143 inchoate charges were brought.
This is a minuscule fraction of all trials brought to the magistrates courts, but still represents an 11-fold increase between 2009 and 2013.
However, according to the Bureau’s data, despite encouragement to charge for lesser crimes, the rate of homicides cases in which four or more defendants were charged with homicide still rose slightly between the introduction of the guidelines in 2012 and 2013, (making up 17% of all homicide prosecutions in 2012 and 17.4% in 2013).
Some experts suggest that case law could be used to clarify the law. Barrister Richard Thomas worked on the appeal for Wayne Collins. Thomas suggests that in joint enterprise convictions, what amounts to encouragement by presence alone is a grey area and can lead to injustice. Thomas suggests the insertion of the word “active” before encouragement could simplify the processes for juries, and ensure that the prosecution must provide proof that the encouragement
was an overt act.
Thomas draws on the case law of R v McCarthy during which the court found that it was possible to encourage another person’s possession of a weapon on the basis ‘that he was present actively encouraging or in some way helping the principal offender in the commission of this offence’.
The court’s use of that word ‘actively’ could have resonance, suggests Thomas. ‘If you were to say that you have to have”active encouragement”, that might require a jury when considering secondary party liability to focus on what the person actually did, and that might take away some of the cases on the edges of encouragement by presence alone. This is where it gets into very grey areas and where there really is a potential for miscarriages of justice.’
Other experts believe case law cannot go far enough and instead argue that the law should be written into statute.
Indeed, the Justice Select Committee’s inquiry into joint enterprise concluded with recommendations that the doctrine be written into statute, as a way to clarify its limitations. Nothing has happened on this front.
That fact worries shadow attorney general Emily Thornberry. She told the Bureau: ‘It seems absurd that the Government has praised and accepted the Law Commission’s recommendations on joint enterprise and yet has done nothing to implement them. Instead ministers have filed the issue on a shelf marked “too difficult to deal with”. This is very disappointing as it’s not an issue that’s going to go away.’
A possible solution to some of the harsh consequences for those convicted in murder cases, but who seemingly played a minor role, would be an end to mandatory life sentencing. This would give the judge, in some cases, more discretion as to how long those on the fringes of a murder should serve.
Crispin Aylett QC, who prosecutes joint enterprise cases, says: ‘There is a good argument for looking again at the mandatory life sentence. The effect of raising the tariff from, say, 15-17 years for a murder with a gun to 30 years, or 12-15 years to 25 for a murder with a knife, has resulted in very long sentences for those who are convicted as secondary parties on the basis of joint enterprise. This may give rise to a sense of injustice.’
However, as Andrew Jefferies QC says, while the end of the mandatory life sentence might well be of benefit to those convicted as secondary parties, ‘they would still be classed as murderers’.
The Bureau sent a copy of their findings to the Ministry of Justice. Justice Minister Damian Green said: ‘Joint enterprise law has enabled some of the most serious offenders to be brought to justice. It ensures that if a crime is committed by two or more people, all those involved can potentially be charged and convicted of that offence.‘Sentencing in individual cases is a matter for the courts. We have no plans to change the law in this area,’ he said.
For the first time we have an idea of just how often the law of joint enterprise is used and how frequently convictions are appealed. Only time will tell if the government will address the issues raised by legal experts and introduce reform.