The law on ‘Joint Enterprise’, a discredited common law doctrine that has led to the overcriminalisation of young black men, has led to ‘systemic injustice, over-criminalisation, over-punishment, and discriminatory outcomes’, according to new research.
A new report on Joint Enterprise law prepared by the Centre for Crime and Justice Studies describes how the unfairness of the legal mechanism, commonly accepted to have caused many grave miscarriages of justice, is ‘particularly borne by young Black men and teenagers’ who are ‘stereotyped as gang members’.
There was an early day motion (EDM), a way for MPs to indicate opinion, published on Tuesday night calling on the government to request a Law Commission review of joint enterprise.
MPs have welcomed the publication of the report, titled ‘The Legal Dragnet’, written by Nisha Waller and the Centre for Crime and Justice Studies, and have agreed with the conclusion that Joint Enterprise law ‘should be narrowed to create a safer framework for prosecution and greater consistency and fairness in outcomes’.
MPs noted ‘with alarm Crown Prosecution Service data that Black people are disproportionately prosecuted under joint enterprise’ noting further that ‘there has been no discernible impact on the number of joint enterprise prosecutions since the 2016 Supreme Court ruling that the law had been wrongly implemented for more than 30 years’.
The report details how the Supreme Court, in their judgment of the landmark case of Jogee 2016, stated that ‘the term joint enterprise lacks strict legal precision’ and it ‘therefore risks distorting public understanding of Joint Enterprise Law’. The report further commented: ‘That the Supreme Court adequately dealt with or fixed the law is an overstatement. It is a convenient argument that has been frequently employed to justify inaction.’
The vagueness in the legality of the Joint Enterprise law has been observed by the report to have had a particular affect on young black men and teenagers, and the report covers how the Crown Prosecution Service (CPS) acknowledged in 2021 has been a risk that the ‘racialised use of the ‘gang’…risks casting the net of liability beyond that which can be established’.
In particular young black men were observed to have been living in ‘communities that are disproportionally identified by the police as having a gang problem’ where the police intelligence has been criticised for ‘racial bias’ and ‘profiling’ based on data gathered ‘without any evidence of them committing a crime’.
The author of the report, Nisha Waller, interviewed members of the public affected by these issues as part of the wider research and spoke to an individual named Ryan who spoke about how cell site data simply indicating his time spent in a housing estate where his friends lived was used as evidence of his ‘gang affiliation’ as the police considered it a ‘gang hotspot’.
Nisha Waller demonstrates in the report through the use of case examples and scenarios that through the use of ‘gang’ terminology the ‘prosecution can circumvent weaknesses in their case by evoking the gang, illustrating how the existing vague law may exacerbate racial disproportionality in joint enterprise convictions’ and thereby open a ‘doorway to a host of pre-conceived stereotypes’.
Activists seeking a reform of the law concerning Joint Enterprise have welcomed the further examination of this contentious area of law. The organisation ‘Joint Enterprise Not Guilty by Association’ (JENGbA) commented that ‘Joint Enterprise is back in the spotlight. MPs with a shred of common sense will be quick to sign up to this EDM and read … ‘The Legal Dragnet’’.
The report does also detail the various objections to changing the law on Joint Enterprise. The ‘most pertinent argument’ raised by the Government is that the law is necessary where it is ‘impossible to ascertain which suspect(s) carried out the offence and how each person contributed’.
In 2012 Prime Minister Keir Starmer, then the Director of Public Prosecutions, told the Commons justice committee that joint enterprise prosecution ‘does not work well” in the case of murder convictions, where ‘someone has played a very minor part in a very serious offence but is nonetheless convicted’.
The author of the report cautions the Government to remember that ‘communities, lawyers, campaigners and politicians have been demanding change for decades’.
