Jean-Yves Gilg

Editor, Solicitors Journal

'Dragnet' joint enterprise process needs to be reassessed

'Dragnet' joint enterprise process needs to be reassessed


Changes will increase defendants' understanding of joint enterprise prosecutions

There is an 'urgent need' for greater clarity and transparency in the prosecution of joint enterprise cases, a report by the Prison Reform Trust has found.

This year, the Supreme Court held in a landmark decision that the controversial rule had been misinterpreted for more than 30 years following confusion over whether the defendant's foresight could amount to criminal intent.

Despite the doctrine being revised, the report says the ways in which different types of liability under the rule on joint enterprise are applied in serious cases 'remain complex in terms of both legal doctrine and practical effect'.

It recommends routine recording and monitoring of joint enterprise cases by the Crown Prosecution Service (CPS), new terminology for the 'toxic' joint enterprise phrase to be used by the CPS and courts, and improved Sentencing Council guidance for judges dealing with multi-defendant cases.

Dr Jessica Jacobson, of the Institute for Criminal Policy Research (ICPR) of Birkbeck College, University of London, which contributed to the study alongside the Prison Reform Trust, said there was 'more urgency and more opportunity associated with making the prosecution process clearer and more transparent'.

'Success in this task will increase the chances that individuals involved in multi-defendant cases - whether as defendants, witnesses, victims, or family members - will understand how the prosecution process works and, potentially at least, will view it as legitimate.

'Clarity and transparency are also of critical importance to criminal justice practitioners, who can only apply the law in a fair and consistent manner if they have a common understanding of it and knowledge of how it is working on a day-to-day basis.'

The doctrine has been labelled a 'dragnet' for young people, often from black, Asian, and minority ethnic (BAME) groups.

The study, funded by the Nuffield Foundation, sampled 61 joint enterprise cases, which included 34 allegations of robbery, 15 allegations of section 18 assault, and 12 allegations of murder. Of the 157 defendants in the sampled cases, almost two-thirds were aged under 25. For the defendants of whom ethnicity was known, around two-thirds were from minority ethnic groups and over 40 per cent were black.

The Court of Appeal is currently hearing the first joint enterprise cases since the landmark Supreme Court decision, which could have implications for hundreds of people in prison convicted under joint enterprise.