The Law of Joint Enterprise is Clear, Fair and Effective. Leave It Alone.
Jerry Hayes skewers another case of nonsensical populism emanating from Whitehall.
18 Jan 2012, 10:45
A change for the law of joint enterprise?
On their first day of election all MPs should be given the equivalent of a Medic Alert bracelet, with the words “not to be allowed to legislate on any matter that forms part of a tabloid campaign,” inscribed in large glowing letters. But even that would probably be a total waste of time as our tribunes have a tendency to fall hopelessly in love with self publicity. Mr. Dacre, Mr Murdoch and Mr Desmond entice them up the stairs and the last thing the poor dears remember is the slamming of the bedroom door, the creaking of the bed springs and that terrible sense of guilt in the cold light of day, when they notice the monster, who looked so pretty the night before, laying next to them
It is bad enough that the normally liberal Ken Clarke has fallen hook line and sinker for every piece of reactionary tat previously served up by his civil servants to such notable practitioners of fair play, Jack Straw and David Blunkett. Parliament has twice rejected, for very good reason the very un English, anti Magna Carta concept of further restricting jury trials to save a few buttons. But it will be the wicked unelected Lords who will save us from that can of worms. And then we have the delight of the debate about a presumption of exclusion (from the judge, not just the defence!) of any evidence relating to our security services when we have an effective and workable system of Public Interest Immunity in place already. Yet again, the wicked unelected Lords will save us from this appalling attempt to subvert British Justice. And if you’ve missed it, there is a message here for all of you who want to ‘reform’ the House of Lords into an elected, political whipped, annexe to that paradise for greasers, chancers and those who would sell their grannies for a red box, the Commons.
But what sent my alarm bells ringing this morning is a report from the normally sensible Justice Committee who want to ‘clarify’ the law of joint enterprise and make it possible to charge whole gangs for murder or serious violence. The law of joint enterprise, no matter what you read in the press, is fair and clear. If I enter a bank with another and that other produces a sawn off shot gun, I will be charged with that offence. It is for the prosecution to prove so that the jury is sure that firstly I entered that bank with an intention to rob and secondly I knew that a shotgun was to be brought to the scene and if the need arose be used. In other words the prosecution has to prove so that the jury is sure, that our intentions were the same. That simply is joint enterprise. The evidential problem (but not a legal one) that arises is if I claimed merely to be an innocent bystander. That I just happened to walk in at the same time as the fellow with the gun. The law is very clear on this, mere presence is not enough to prove joint enterprise. I would have to be doing something more. There to lend encouragement, or to keep a look out, or there to rob.
This is where the so called problem with gangs occurs. A crowd is watching a brutal stabbing. I am there egging the assailants on, thus I am clearly guilty of joint enterprise although I am not the wielder of the knife. If the victim dies I am guilty of murder, if he survives, but with serious injuries, guilty of inflicting grievous bodily harm with intent. But if I just happen to have been innocently swept up by the crowd after a shopping trip and try to get away from it all I am not guilty of any offence. Again it is for the prosecution to prove so that the jury are sure. Everything will turn on the facts and the judge has clear and fair directions to give to the jury. It is sensible, workable and fair to victim and defendants alike.
If today’s newspapers are correct the Justice Committee are proposing that gangs can be given a blanket charge, just by being there. This makes no sense. To be found guilty of murder the prosecution would have to prove that I intended to kill or cause serious harm. For a serious wounding they would have to prove that I inflicted the wounds with intent. These are crimes of specific intent. They are so serious that recklessness cannot suffice.
So blanket charges just won’t work and would be very difficult to prove unless the laws of serious woundings and murder are changed to allow recklessness. And then the possibilities of unfairness and miscarriages of justice would be enormous.
So Justice Committee, best left alone. Oh, and if it hadn’t been for the law on joint enterprise the killers of Stephen Lawrence wouldn’t have been convicted.
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Jerry Hayes
Jerry Hayes is a former Conservative MP and leading barrister defending and prosecuting high profile cases
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Comments (7)
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"The law of joint enterprise...is fair and clear". Writing as someone who has taught joint enterprise recently to very intelligent students (Oxbridge and high Russell group), the law is not clear. It works perfectly well in simple situations, such as the initial example here. It becomes much more difficult in some cases.
Gnango is a case in point, with very serious disagreement between judges (and academics) about whether joint enterprise even covered the situation there, let alone how it worked. Given the recent swathe of appeal cases, it looks rather like trial judges find it difficult to provide clear and comprehensible directions to juries.
Of course this does not mean a tabloid campaign should be followed. Tidy up the law, but that is not what the tabloids want.
18/01/2012 12:41Well I understood it - seems to me it's what Basil Fawlty called a statement of the bleeding obvious! Thank you Hayes J. for an unusually succinct exposition, must have been the boozy lunch at the Savile that cleared your mind so.
18/01/2012 14:09John I have re red Gnango and if I can para phrase it the Supreme Court comes to a common sense view. This was a drive by shooting. It was unusual in that the two defendants didn't intend to kill anyone other than each other. It was a sort of duel. Sadly, a passer by got in the way and was shot dead. So could one or both defendants be guilty of murder? Did they have the requisite intent? Unfortunately the judge at the Crown Court got rather tied up in a direction involving parasitic accessories. What the Supreme court ruled was sensible ie, of course both can be guilty as they both had the intent to kill or cause serious harm but not the person who died. This is the old principle of transferred malice, their intent to cause serious injury or death to each other was transferred the poor woman who got in the way. Now one can have endless academic debate about this but in terms of clarity, fairness and public policy the law is spot on! And thanks Evad! I agree with you.
19/01/2012 06:24Except Gnango is more complicated than that.
What Gnango does is apply transferred malice to joint enterprise. And it does it for murder, which is already a constructive crime. But the really big problem, recognised by the Court of Appeal, is how one can describe two people who are each trying to kill the other as having a "common purpose", which is a requirement for joint enterprise. Doing so raises difficult questions - say that "Bandana Man" (the other participant in the "duel") had hit Mr Gnango but not wounded him fatally, Bandana Man would be liable for the attempted murder of Mr Gnango. But apparently so would Mr Gnango, even if he never fired a shot! According to the Supreme Court, Mr Gnango had a "common purpose" with Bandana Man and so is a participant in a joint enterprise. That brings out how spectacularly counter-intuitive this is and shows the problem with relying on policy as the argument.
Frankly the whole sorry mess could have been solved if the CPS had charged Mr Gnango with an offence he definitely did commit, namely the attempted murder of Bandana Man.
19/01/2012 08:52John you are quite right. Very often these wonderfully intricate legal arguments can be avoided if the CPS charge correctly.
21/01/2012 09:10But what sent my alarm bells ringing this morning is a report from the normally sensible Justice Committee who want to ‘clarify’ the law of joint enterprise and make it possible to charge whole gangs for murder or serious violence. The law of joint enterprise, no matter what you read in the press, is fair and clear.
No Sir, The justice Committee are NOT wrong.
09/02/2012 12:55Resent survey Oxford University suggests only 21% of the general public in favour of murder convictions for secondary parties.
Bigoted views that refute the evidence, serve only your own prejudice. You should take a leaf from the justice committee and have an open mind, or your views become superfluous.
William
John Scott
09/02/2012 13:35I couldn’t agree more Sir.
As you rightly say
Frankly the whole sorry mess could have been solved if the CPS had charged Mr Gnango with an offence he definitely did commit, namely the attempted murder of Bandana Man.
With the aggravating factor of an innocent passer-by being killed, the sentencing power of the court could fairly apply the gravity of the offence when sentencing for attempted murder. The Joint Enterprise “band wagon “of an easy conviction backfired spectacularly on prosecutors in the Gnango case at the taxpayer’s expense. But more importantly, there is a murderer out there who needs to be found and brought to justice. Unfortunately with Joint Enterprise convictions there is often the illusion that the killing has been dealt with, police close the case “got our conviction” let’s go down the pub and celebrate the result. The Lawrence case highlights this problem.
This article misses this point and yet, the justice committee’s recommendations come under fire for its completely rational views?