THE USUAL SUSPECTS. THE INEVITABLE INJUSTICE.

From time-to-time reports on the workings of the criminal justice system are published that provide information that is new, unexpected, and startling. However, when the Centre for Crime and Justice Studies recently released their detailed document on Joint Enterprise, “The Usual Suspects”, the evidence produced was perhaps even more shocking because it showed exactly the outcomes anticipated and feared.

The Usual Suspicions

The concept of Joint Enterprise is long established, and is intended to make sure that those planning an act of violence are treated in the same way as someone carrying it out. However, in 2016 what was hoped to be a landmark judgement by the Supreme Court, the Jogee decision named after the man who had taken and won the case, ruled that Joint Enterprise had been wrongly used for over 30 years. It had, the Court stated, been extended from the original aim of ensuring that all those involved in an act of serious harm would be equally punished, but had evolved to cover far too many people who just happened to be present or on the fringes but who had no direct involvement in the planning or carrying out of the act, had no knowledge, and no means therefore to prevent it. This is known as Parasitic Assessorial Liability” (PAL).

Campaigning group Joint Enterprise Not Guilty by Association (JENGbA) have long suspected that the judgement, far from reducing the use of the charge to those for whom it was intended, has made no change, except that the phrase “aiding and abetting” is now used instead of PAL. Nor has there been any significant impact on those who the Supreme Court deemed to be wrongly in jail as there has been no granting of appeals to those now in prison. A lot of people, JENGbA says, do not even know the charge under which they are held and numerous requests to the Ministry of Justice for statistics on numbers have been rejected because it would require getting that directly from court files as, astonishingly, there are no centrally held records. If you do not have the information on your own circumstances, clearly it is impossible to question them. This, I am afraid, is a typical Government ploy to avoid scrutiny. If you suppress the facts, it is hard for people to challenge you.

The other view held by JENGbA and others is that the charge, both pre and post Jogee, is disproportionally impacting on young people from the Black and Minority communities as it is being targeted against those in or around gangs. That would of course be discrimination, possibly direct discrimination, certainly indirect, as it would be racist in effect. This is why the new report is invaluable. The Centre for Crime and Justice Studies have cut through the system and produced a detailed, and highly readable, study that proves all the assumptions to be correct, and it makes for concerning reading. All the fears have been revealed to be well founded, all the suspicions proven.

Written by Helen Mills, Matt Ford, and Roger Grimshaw and supported by the Barrow Cadbury Trust, it is a follow up to a study done in 2016, “Dangerous Associations”, and concludes that Jogee has made no discernible difference at all.

Plus Ca Change

Until the Jogee ruling in February 2016 there were three ways that multiple people could be prosecuted for a single offence under joint enterprise principles. First, if two people jointly committed a single crime, and second, if one or more people actively assisted or encouraged someone else to commit a crime. The third way, “parasitic accessory liability” (PAL) involved cases in which two or more people committed a crime during which one of them committed another crime.

Under PAL the others could be prosecuted as secondary suspects, on the basis that they should have foreseen that the primary suspect would commit that other criminal act. In 2016 the Supreme Court ruled that this approach had been wrongly applied, setting far too low a bar for individuals to be convicted of offences they did not perpetrate. This incorrect application, the Court said, stretched back for longer than 30 years.

The authors of this new study set out to see how much of an impact that ruling had made. They reviewed prosecutions and convictions of secondary suspects for murder and manslaughter, and multi defendant cases for homicide. The findings were perhaps even worse than expected. For murder and manslaughter in the three years leading up to the Supreme Court ruling, 2013/14 to 2015/16, the research identified 522 individuals charged as secondary suspects leading to 296 convictions. In the three years following Jogee, 2016/17 to 2018/19, there were 547 people charged and 326 convicted. It was clear, as JENGbA had suspected, there was no significant impact at all in either charges or convictions.

The other depressingly unsurprising findings related to age, ethnicity, and other characteristics of defendants. A clear profile emerges about who has been convicted of serious violent offences through joint enterprise laws. They are predominantly young men. Those from minority ethnic communities, particularly the Black community, are consistently and significantly overrepresented. There are indications that the most recent period has actually seen an increase in ethnic imbalance amongst those convicted. This flags up a serious injustice and is a major concern. Where policy and practice have a disproportionate impact on one section of society, they must be fully reviewed and changed. It is clear Joint Enterprise is one such policy.

What Happens Next?

This publication provides information that informs debate and takes away the Government defence that opposition is based on nothing but assumptions. The authors call for three things, the first being a full parliamentary investigation by the Justice Select Committee. That excellent group held a short inquiry back in 2012 with a follow up two years later but a full set of hearings is urgently needed; the clear discriminatory impact of current practice requires that. Second, the disproportionate impact of secondary suspects over all these years needs a sample audit, and it is suggested that the link between young people and homicide charges should be the priority. Finally, that given how poor data collection is the CPS should produce publicly available statistics on the demographics of secondary suspects prosecuted and convicted for serious violence. There is no justification in 2022 for that not now happening. It should, of course, have happened from the start.

JENGbA are empowered by having this evidence which supports everything they have said over the years. They are promoting a private members bill in May and staging a major demonstration in London on 16th May, starting in Trafalgar Square, to coincide with that. They are desperate to ensure that all those under Joint Enterprise, particularly the discredited PAL clause, are able to identify their own status to enable them to fight against the charges, and to get the intention of the Supreme Court to actually occur.

This must be an absolute priority for the Justice Committee who should be particularly concerned by the racial imbalances exposed. The Ministry of Justice must no longer be permitted to hide behind a lack of data; they will have this document and must start to fulfil their duty to monitor properly. Difficulty of obtaining information from courts and cost are no justification for maintaining an already identified miscarriage of justice. The Private Members Bill should inspire debate in the House of Commons, and the end of an error must come very soon. We must all demand nothing less.