True justice?

Louise Taylor considers the Criminal Cases Review Commission's proposals to review Jordan Cunliffe's murder conviction under the joint enterprise law

The proposed review of Jordan Cunliffe's murder conviction by the Criminal Cases Review Commission (CCRC) again raises questions about the suitability of the doctrine of joint enterprise in securing criminal convictions, particularly in cases of murder where the only disposal available to the sentencing judge is the mandatory life sentence.

Jordan Cunliffe is currently serving a life sentence with a minimum term of 12 years' imprisonment for his role in the 2007 murder of Garry Newlove, who was kicked to death following an altercation with a group of youths outside his home. In spite of maintaining that he made no physical contact with Newlove, Cunliffe was still convicted of his murder, along with two other defendants, on the basis of joint enterprise.

Joint enterprise can be used in relation to any crime, but proves particularly useful for the Crown in cases of murder where a group has been involved in the killing. The doctrine facilitates the conviction of all of the members of the joint enterprise in circumstances where the Crown would otherwise have difficulty in establishing which member, or members, of the group inflicted the fatal blow, or that each member of the group possessed the requisite mens rea for murder (ie an intention to kill or to cause grievous bodily harm). The application of the doctrine in Jordan Cunliffe's case meant that he could be convicted solely on the basis of his continued presence at the scene after the altercation had commenced, in circumstances where the Crown alleged that he had appreciated the risk that one of the other members of his group 'might' kill with murderous intent.

A strong focus of the CCRC review is likely to be the evidence relating to Cunliffe's degenerative eye condition, which meant that he was so visually impaired at the time of the killing that he could have been registered as blind. This evidence arguably throws doubt on Cunliffe's ability to foresee the likelihood that one of his companions would kill Newlove, particularly in an attack that took only a few moments to perpetrate.

Compelling concerns about this area of law have also recently been raised by the House of Commons Justice Select Committee. They particularly note the potential for injustice in cases where there is a significant mismatch between culpability and penalty, as is the case with joint enterprise murder. This is so because the mens rea requirement in these cases can be satisfied by mere foresight of the risk that another may intentionally kill or cause grievous bodily harm. The defendant himself need not intend death or grievous bodily harm but will face a mandatory life sentence nonetheless. The committee also highlighted the fact that there is a danger in allowing the doctrine to be developed on the basis of social policy and deterrence rather than on a wholly principled approach. Their concerns have led them to call for the government to request the Law Commission to undertake an urgent review of the law of joint enterprise in murder cases, with a particular consideration of the possibility of lesser offences being charged where the defendant did not encourage or assist the murder.

While it is unlikely that many convicted of murder under the doctrine of joint enterprise would find themselves in the very specific circumstances of Jordan Cunliffe, his case highlights some of the difficulties involved in considering what a joint defendant 'might' have appreciated were the intentions of the other members of his group. Is a conviction for murder, and the associated life sentence, truly warranted in circumstances where a defendant was present at the scene of the killing but did not physically take part in the attack? It must be questioned whether a conviction for murder through such an unprincipled approach is justice for anyone.

Louise Taylor is a senior lecturer at Nottingham Law School. She is deputy director of the NLS Centre for Conflict, Rights and Justice and is also the editorial adviser to the Nottingham Law Journal