Joint enterprise: is a 300-year-old law sending innocent people to prison?Posted: February 17, 2015
A complex and controversial law is being used to jail many ethnic minority and poor people. Many say it is unjust.
Is it really possible that a law originally devised to stop aristocrats from dueling is now being used to lock up working class people and ethnic minorities?
The law is called joint enterprise. Three hundred years ago it was used to charge doctors and others attending a duel with murder along with the duelists themselves. Now it is mostly used against ‘gangs’ in urban areas.
But many people from judges to MPs to QCs to campaigners say it’s an unjust law that targets the most marginalised sections of society and leads to miscarriages of justice.
What exactly is the law?
Joint enterprise allows more than one person to be charged and convicted of the same crime. A group or gang can be prosecuted for murder when it can’t be proved which member of the group actually killed the victim.
It is referred to as guilty by association and can often be a case of being “in the wrong place at the wrong time”. A defendant can be convicted of murder even if they had no intention of causing serious harm and didn’t take a direct part in the crime.
Why is joint enterprise controversial?
The prosecution must only prove that the defendant could have “foreseen” that another member of the group might murder someone. This “foresight test” has led to concerns that people who are very remote from the actual crime are being sentenced to life imprisonment under mandatory sentencing guidelines.
It lowers the burden of proof on the prosecution allowing bit-part players or those not involved at all to be swept up in a dragnet by the police.
The campaign group Joint Enterprise Not Guilty by Association (Jengba) made this video to explain more.
Who does it affect?
According to a study by the Bureau of Investigative Journalism (BIJ), from 2005-13 up to 4,500 people were prosecuted for homicides involving two or more defendants and a further 1,800 were prosecuted for homicides involving four or more defendants. Over 450 people have been convicted of murder under joint enterprise in the past two years alone.
“A terrifying statistic” – the words used by Dr Matthew Dyson, a law lecturer at the University of Cambridge, to describe the BIJ’s finding that just over 22 per cent of all Court of Appeal rulings in 2013 related to joint enterprise cases.
The British prison system already has a disproportionate number of black and mixed race young men. But research by the Cambridge Institute of Criminology shows that things are even worse when it comes to joint enterprise.
Almost two-fifths of those serving very long sentences for joint enterprise offences are black. That is 11 times the proportion of black people in the general population and almost three times as many as in the overall prison population.
Jengba, which supports more than 500 people who claim to have been wrongly convicted of murder or manslaughter under joint enterprise, estimates that four-fifths of people who contact them are from the black, Asian and minority ethnic (BAME) community and nearly all are working class.
Who is calling for change?
Besides campaign groups such as Jengba, many other people have spoken out against the joint enterprise law. The former President of the Supreme Court, Lord Phillips, said it is “capable of producing injustice, undoubtedly”.
But more importantly, the Justice Select Committee called for the Law Commission to review the law “as a matter of urgency”. Sir Alan Beith MP, the chairman of the committee, said:
Joint enterprise remains a highly controversial subject amongst lawyers, academics and others.…there is a real danger in justifying the joint enterprise doctrine on the basis that it sends a signal or delivers a wider social message, rather than on the basis that it is necessary to ensure people are found guilty of offences in accordance with the law as it stands.
Unfortunately, Justice Minister Chris Grayling has delayed any decision until after the upcoming general election in May. Perhaps he should read this poem from a prisoner convicted of joint enterprise and think again.
Joint enterprise: A case study
This video from Jengba is a good example of the effect joint enterprise can have. We will be writing much more and in depth about further examples of joint enterprise in the coming weeks.
What can I do about joint enterprise?
Campaign group Jengba is currently sponsoring a petition that aims to raise 10,000 signatures on a letter to be sent to Prime Minister David Cameron.
We will have further posts on the topic soon including case studies and a podcast on the issue.