Joint enterprise was the gift that kept on giving

The joint enterprise decision in the Supreme Court which has declared that the courts had been misinterpreting the law of joint enterprise since the mid-80s has already been hotly debated and rightly so: this controversial piece of law has been responsible for convicting people of murder simply on the basis of their presence with others.

Indeed, it has been the tool of choice by the police in so-called 'gang-related cases', where over the years convictions seem to have fallen from the tree based on the joint enterprise principle. Many of the convicted defendants have been young or vulnerable people, finding themselves all too easily convicted, purely on the joint enterprise approach and sent into custody to continue their criminal education.

The real problem with the old joint enterprise regime was that from a conviction point of view, that is, from a police and Crown Prosecution Service (CPS) perspective, it worked well. It was, from a law enforcement perspective, the gift that kept on giving in that, in accordance with the law, it facilitated a conveyor belt of convictions, particularly for murder, which otherwise would not have happened. This, of course, is no criticism of the police or the CPS, all they were doing was applying the law as it stood.

Joint enterprise was relatively easy to establish and, in countless criminal trials, the very fact that a young person was seen in an offending group or worse still, travelled in the same car, was often enough to convict them - very little more was needed.

It made for lazy police investigations into what is, after all, one of the most serious charges on the criminal calendar. Again, this is not a criticism of police investigatory tactics. Given the cut backs in funding and pressures being placed upon police resources, it could be argued that when convictions could be established on the cheap, which is what joint enterprise provided for, then that was an appropriate use of police resources and allowed allocation of time and person power to be applied elsewhere.

But whatever view is taken on the investigatory practices under the old regime, as a result of the Supreme Court ruling, things are going to change. And that is good.

The police are now going to have to investigate the roles and responsibilities of all those who they seek to charge in far more depth. That must be in the public interest. The safety net of conviction for murder through joint enterprise is now gone. This will mean that if it is the prosecution's case that a person is part of a group, intent to commit the requisite elements of the crime, then evidence will have to be laid before the jury in the conventional way: cogent eye witness evidence of an actus reus; telephone or communication-based evidence to substantiate intent; and evidence establishing the appropriate level of mens rea above and beyond that previously supplied by the draconian joint enterprise principles. These are the usual meat and drink of any intent-based case that the police are well used to. It is just that now they will not be encouraged to take short cuts.

It also means that when the CPS have to consider the usual thresholds for the bringing of a prosecution, they will have to consider all the evidence available and not just the joint enterprise route to crossing the reasonable prospect of success threshold.

The Supreme Court ruling meshes nicely with other recent developments in the criminal justice system of the last few months.

First, at a time when Michael Howard's misconceived mantra of the past, 'prison works', is finally being challenged by Michael Gove - while all along those who practise in this area of law understood that prisons and places of custody are fundamental breeding grounds for continuing criminalisation is accepted as a blight on our penal system - the joint enterprise ruling, will, without doubt, result in fewer, usually young and vulnerable people being placed in a corrupting environment and custody numbers will inevitably fall.

Furthermore, on a more broad consideration of developments, the new joint enterprise regime should remind the police and the CPS of their duties not to pursue allegations that do not have merit, regardless of public and media pressure.

Not too long ago, politicians were tripping over themselves to comment upon the rise of gang-related crime. Governments of different complexions introduced laws specifically designed to deal with this problem. In the rush to be seen to be tough on crime (but not so much on its causes), convictions of anyone perceived to be in a 'gang' were rigorously pursued.

Joint enterprise was a helpful weapon, but until the Supreme Court ruling it was a blunt instrument. It is right to remind ourselves that all criminal allegations have to be considered impartially and forensically, without emotion, uninfluenced by the clamour of the public or the media. Any ultimate decisions taken should be evidence based. The law in relation to joint enterprise now allows that to happen, at least in one part of the criminal law.

John Cooper QC is a barrister practising from 25 Bedford Row

@John_Cooper_QC

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