MPs are making a fresh attempt to change the law on joint enterprise, which allows for individuals in England and Wales to be convicted of crimes they did not physically carry out if they are deemed to have encouraged or assisted the perpetrator.
An early day motion (EDM), a way for MPs to indicate opinion, was published on Tuesday night calling on the government to request a Law Commission review of joint enterprise “with a view to narrowing the scope of current legislation and providing a fairer framework for prosecution and sentencing”.
The EDM, spearheaded by the Liverpool MP Kim Johnson, reflects concerns that minor players and those on the periphery of crimes are being tried and convicted as if they were the perpetrator.
It welcomes the publication of a report, titled The Legal Dragnet, by Nisha Waller and the Centre for Crime and Justice Studies, agreeing with its conclusion that the law on joint enterprise “should be narrowed to create a safer framework for prosecution and greater consistency and fairness in outcomes”.
The EDM also “notes with alarm” Crown Prosecution Service data showing that black people are disproportionately prosecuted under joint enterprise and that a 2016 supreme court ruling that the law had been wrongly implemented for more than 30 years has had “no discernible impact” on the number of prosecutions.
Waller said: “Joint enterprise is unjustifiably vague and wide in scope. Law reform will not eradicate institutional racism and broader issues with police and prosecution practice. However, the current law encourages the overcharging of suspects and allows cases to be propelled forward based on poor quality evidence. Prosecutors are then left to fill the gaps with speculative case theories and often racialised narratives from which juries are invited to infer joint responsibility.”
Her report highlights specific cases including that of 11 black and mixed-race teenagers each handed sentences of between five and 23 years in 2017 for one murder in Manchester. It says that the prosecution in that case evoked a gang narrative “underpinned by a rap music video, used as evidence of the defendants’ ‘membership’ or ‘allegiance’ to the ‘gang’”. The case is under appeal.
In another case from last year, it says, three young men were given life sentences for the murder of Colton Bryan while the person who allegedly stabbed him, Hammad Hussain, remains at large. At the time of the offence, one of those convicted was present but played no physical role in the offence; another was downstairs, outside the flat where the offence took place; and the third was not present at the scene.
The report says that the government should request a Law Commission review into joint enterprise as a “minimum next step”.
Johnson introduced a private member’s bill earlier this year seeking a change to the law to reduce the risk of unfair joint enterprise convictions. Her initiative ran out of parliamentary time because of the general election.
A Ministry of Justice spokesperson said: “We are aware of concerns that these prosecutions may disproportionately affect some communities. However, it is important that those who do commit crimes are brought to justice. We are keeping this matter under review and will consider the Law Commission’s proposals following their review of the law on criminal appeals and procedure.”
