Joint Enterprise and tackling racial bias

In a 2020 Old Bailey case, a young Black person stood trial for Joint Enterprise murder based largely on his rap lyrics. Prosecution focused on a particular lyric found on his phone about witnessing a stabbing, and sought to treat it as a kind of confession. It turned out to have been largely composed before the incident. But had it been written post-incident, should it have had relevance? That prosecution saw an opportunity for a murder charge based to a large degree on a lyric about ‘witnessing’ serious violence illustrates the notorious looseness in the application of Joint Enterprise secondary liability rules. Seeing an incident, for young Black men and boys, can be deemed enough. 

In this case, with an excellent defence team, the judge decided to exclude the rap evidence, and the young person, after nine months of incarceration, went on to be fully acquitted. Unfortunately, this case outcome is exceptional in Joint Enterprise cases of young Black people.

Joint Enterprise

Joint Enterprise is the legal doctrine that enables prosecutors to charge parties who are not suspected of having carried out the principal offence (often with little or no forensic evidence associated with them) to be tried for that offence under secondary liability rules on the basis that they have intentionally ‘assisted or encouraged’ the principal. These rules are applied very unevenly. Recent Crown Prosecution Service-commissioned research found that young Black people are by far the most often charged as secondaries in like-for-like cases. Many Joint Enterprise cases are murder prosecutions in which alleged secondaries face life sentences.

Injustice

Campaign group JENGbA has exposed how people on the periphery of harm can be charged and convicted under Joint Enterprise for the most serious offences. David Lammy MP, in opposition, raised the alarm and pledged to change the law: ‘How can you be in custody if you simply withdrew from a crime that was being committed?... That is the kind of injustice that is being done in the name of joint enterprise and it has to end.’ In our University of Manchester report Compound Injustice, which presents a bird’s-eye view of criminal cases involving rap evidence, 53% of the cases were prosecuted under Joint Enterprise. 

When little direct evidence is needed to mount a secondary-liability charge, the state relies heavily on popular-cultural expression and ‘gang’ narratives, conflating culture and criminality. The higher the number of Black and working-class young people drawn into the web of suspicion, the greater the corpus of materials from young people’s expressive and digital lives that can be mined by investigators for incriminating-looking material to ‘prove’ alleged bad character and guilt by association. Such evidence can offer dubious narrative clarity for jurors in serious-violence cases with too many defendants.

For the University of Manchester report Racial Bias and the Bench, we surveyed 350 legal professionals, including 66 solicitors, on racial equity in the justice system. A total of 95% of those surveyed believed that racial bias plays some role in the justice system; 63% said it plays a significant role. Young Black men and boys were the group by far the most mentioned as targets of this racial bias in our survey.

The need for reform

Barrister Keir Monteith KC and I, lead coauthors of Racial Bias and the Bench, recently made a legal submission to the review of the criminal courts led by Sir Brian Leveson. His review asks for ‘bold thinking’ to improve efficiency and justice. Tackling Joint Enterprise over-criminalisation of young Black people, who are clogging the system, should be a no-brainer.  The new Joint Enterprise (Significant Contribution) Bill, led by Kim Johnson MP, and evidence from the current Joint Enterprise mini-Inquiry must feed into Leveson’s bold thinking. It’s time to review all Joint Enterprise cases currently in the backlogged system. Ending Joint Enterprise injustice would lower costs and workloads. Researchers have estimated the cost for processing and punishing each additional Joint Enterprise defendant in murder cases as £1.3 million.

As we await legislative reform, there are vital practical steps solicitors can take – and, in many cases, already are taking. Solicitors must help scrutinise and challenge the submission of evidence that mobilises racist and class-based tropes about young Black people, especially in cases of secondary liability and conspiracy. For guidance, the toolkits from the Youth Justice Legal Centre are a good place to start. A recent hopeful case outcome, representative of serious overcharging for Joint Enterprise murder, shows how solicitors and barristers, with their clients, are successfully fighting racist narratives. Case by case, thoughtful action can protect the human rights of the young and build a fairer (and more efficient) legal system.

Eithne Quinn is Professor of Socio-Legal Studies at The University of Manchester and lead academic co-author of the reports Racial Bias and the Bench: A response to the Judicial Diversity and Inclusion Strategy (2020-2025) (University of Manchester, 2022) and Compound Injustice: A review of cases involving rap music evidence in England and Wales (University of Manchester, 2024), and led the Arts and Humanities Research Council project Prosecuting Rap: Criminal Justice and UK Black Youth Expressive Culture.