Posted on 07 Apr 2022

Liberty is taking legal action against the Crown Prosecution Service and the Ministry of Justice over the ‘discredited’ joint enterprise law. But what is it and what is Liberty’s case about?

What is Joint Enterprise?

Joint Enterprise is where, if one or more people commit an offence (the main offenders) and another/ others (secondary offenders) intended to encourage or assist them to commit the offence, the secondary offender(s) can be prosecuted as if they were a main offender.

This has resulted in bystanders, or people involved in much lesser criminal offences, being convicted of murder or manslaughter.

What is the problem with joint enterprise?

Thousands of people are estimated to have been prosecuted under the joint enterprise doctrine. But we know that often, people are convicted under joint enterprise based on prejudicial evidence, information that could be inaccurate, or racial stereotypes.

Weak ‘evidence’ that people are part of a ‘gang’ – including information about people’s associations, friends, families, use of social media, and even music preferences – has been used in joint enterprise prosecutions, particularly in those brought against of people of colour.

This relies on racist and inaccurate stereotypes about young people of colour being involved violence and other criminal activities, including ‘gang’ involvement.

The ongoing misuse of joint enterprise puts the right to a fair trial at risk, particularly for young people of colour.

The Lammy Review in 2017 highlighted the ways that joint enterprise leads to miscarriages of justice.

What is the law on Joint enterprise?

Until 2016, the courts interpreted the law to mean that if two people set out to commit an offence, and in the course of doing so, one of them commits a different offence, the other person will also be guilty of that offence if they had foreseen the possibility that it might be committed.

For example, if two people set out to commit a robbery, but in the course of the robbery one of them pulls out a knife and commits a murder, the other party will be guilty of murder on a joint enterprise basis if he foresaw this as a possibility, but did not himself intend it.

In 2016, the Supreme Court reconsidered the joint enterprise doctrine, and said that the law had taken a ‘wrong turn’ and been misinterpreted.

Instead, it said that a person will only be guilty of a joint enterprise offence if they intended to encourage or assist the person who committed the offence to do it.

However, since 2016 the way that the law is used continues to be problematic.

Who is likely to be prosecuted under joint enterprise?

A number of different studies indicate that joint enterprise prosecutions are more likely to target young Black men and boys.

One study found that, of young male prisoners serving 15 years or more for joint enterprise convictions, 38.5% were White and 57.4% were BAME, and 38% Black.

Another study found that joint enterprise prisoners who identify as BAME were significantly younger than their white counterparts and were serving longer sentences on average.

Despite these studies,  neither the Crown Prosecution Service nor the Ministry of Justice records or monitors data about joint enterprise prosecutions – meaning there isn’t an official record of the ethnicity or age of those prosecuted under joint enterprise, or the outcomes of those prosecutions.

This means that  racism in the system is going unrecorded, making it difficult for people to challenge and hold the state to account.

What is Liberty’s legal case about?

Liberty has threatened legal action against the Crown Prosecution Service and the Ministry of Justice on behalf of grassroots campaign group JENGbA (Joint Enterprise Not Guilty by Association) for failing to record this data.

This failure breaches their duties under the Equality Act 2010 to have due regard to eliminating race discrimination.

We are calling for the CPS and MoJ to record data on:

  • The number of joint enterprise prosecution brought for offences involving violence by area
  • The ethnicity and age of those prosecuted
  • Whether any ‘gang’ evidence was relied on by the Crown in those cases
  • And the outcomes of those prosecutions.

Making sure this data is recorded is the first step to ensuring that any race discrimination in the use of joint enterprise is no longer hidden from view, and that steps can be taken to eliminate it.

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