Harry Stopes

The common law doctrine of joint enterprise allows for the conviction of ‘secondary parties’ to a crime committed by another, ‘principal’ offender: both the getaway driver and the man who points the shotgun in the teller’s face are guilty of bank robbery. In April 2022, the civil liberties organisation Liberty, acting on behalf of the campaigning organisation JENGbA, took the Crown Prosecution Service to court, arguing that in practice the doctrine is racist – a view supported by a large body of academic research.

In February the CPS began a pilot scheme monitoring joint enterprise prosecutions for homicide and attempted homicide in six regions, including London, the North West and the West Midlands. The results were released in September. With information on 680 defendants, the CPS pilot represents the most comprehensive look at the demographics of joint enterprise to date.

The pilot confirms much of what we already know. Joint enterprise is disproportionately used against the socially marginalised. More than half of defendants are from ethnic minorities. Black people are nearly sixteen times as likely to be prosecuted under joint enterprise as white people; mixed race people are more than six times as likely, and Asians more than three times. Defendants are also overwhelmingly young: 54 per cent are under 25. The figures skew younger in London – where 60 per cent are under 25 – and among Black (69 per cent) and mixed-race defendants (67 per cent). Around 5.4 per cent are known to have a disability such as ADHD, PTSD or autism spectrum disorder.

Racist outcomes imply institutional racism, but this doesn’t in itself tell us the process by which joint enterprise came to be so clearly racially patterned. Scholars have tended to answer the question with reference to the concept of the gang, membership of which can help to establish a common purpose shared between primary and secondary defendants. Since the gang has long been understood to function in part as a racial signifier, an association between joint enterprise and gangs could help to explain the stats on race. A 2016 study seemed to confirm the connection, finding that 78.9 per cent of BAME joint enterprise prisoners recalled gangs being evoked at their trial, compared to 38.5 per cent of white prisoners.

It was therefore a surprise that the CPS pilot study marked only 21 per cent of cases as gang-related (this figure was not broken down by defendants’ race, which seems an oversight). The CPS declined to comment on the comparison between the pilot and the 2016 study, but there are a few possible explanations for the difference. The 2016 study was based on self-reporting from prisoners who were in touch with JENGbA. The self-selecting nature of the sample might have meant that gang-related cases were over-represented, and that the CPS’s 2023 results are actually more in line with longstanding patterns. If this was the case, gangs were never as important to joint enterprise as many scholars and activists thought. Alternatively, it may be that cases which are not labelled ‘gang-related’ in CPS paperwork nevertheless end up being described in those terms once they come to court.

A third possibility is that the CPS has become less likely to apply the label in joint enterprise cases since 2016. The ‘gang’ has come under intense, sustained scrutiny in recent years. Last year the Metropolitan Police had to make ‘wholesale changes’ to their ‘matrix’ database of gang members, following another lawsuit from Liberty. The CPS updated its guidelines for prosecuting gang offences in 2021, and early next year will organise a panel of expert stakeholders to discuss joint enterprise as it relates to gangs.

The service seems to recognise it has a legitimacy problem here. The mayor of Manchester, Andy Burnham, has said that joint enterprise ‘damages trust and confidence with communities’, and the chief crown prosecutor for the North West, Martin Goldman, has met three times in the last six months with Black community leaders for discussions in which joint enterprise has been on the agenda.

None of this is particularly reassuring, however, if the judicial system continues to produce outcomes that are so starkly and obviously racially patterned. Racism is flexible and elusive enough to survive the downgrading of the ‘gang’. A study published last month found that policing of ‘county lines’ drug dealing hinges on the ‘pre-emptive and violent criminalisation’ of black youth.

Whatever labels are attached to it, joint enterprise remains a problem area in the criminal justice system. According to Felicity Gerry KC, a Court of Appeal decision last summer ‘wrongly lowered the conduct element’ and ‘widen[ed] liability through another error of law’, meaning that secondary parties can be convicted without proof that their actions made a meaningful contribution to the crime. Kim Johnson MP recently introduced the ‘Joint Enterprise (Significant Contribution)’ Private Members Bill to address this point. It will have its second reading in February. But as Labour and the Conservatives vie to appear ‘tougher’ on crime, meaningful change through legislation seems a distant prospect.

An application currently before the Criminal Cases Review Commission may be more consequential. Three men from Moss Side are seeking leave to appeal their convictions for murder in a case to which a supposed gang rivalry was integral (they were teenagers at the time). A decision from the CCRC is likely some time next year.