Excessive use of charging powers observed in joint enterprise trials, say researchers
The findings from the miscarriage of justice charity Appeal add to concerns surrounding the doctrine, which allows defendants in England and Wales to be convicted of crimes they did not physically carry out if they are deemed to have encouraged or assisted the perpetrator.
Dr Nisha Waller and Tehreem Sultan followed 17 attempted murder and murder joint enterprise trials at the Old Bailey in central London. Such cases have been of particular concern because of the scope for people who made no clear contribution to be tried as if they were the perpetrator and receive a life sentence.
In many cases, the authors said, the evidence was said to be 'weak, and in some, virtually nonexistent'. They highlighted one 'especially concerning case' of seven boys charged with murder, where the prosecution case against five of them relied almost entirely on their 'voluntary presence' at the scene.
They said their findings point to an 'unreasonably wide net' being cast, with overzealous charging decisions by the Crown Prosecution Service and a failure to weed out weak cases before trial.
Waller and Sultan said the findings of the report, called Joint Enterprise on Trial, 'reveal serious concerns about the way joint enterprise continues to be used. Defendants were charged with serious offences on weak evidential grounds which stimulated a range of problematic prosecution strategies, aimed at maximising the chances of conviction.'
An enduring concern about joint enterprise, also known as secondary liability, has been its disproportionate use against young Black men. In the trials observed, 60% of the defendants were Black and 79% were from minority ethnic backgrounds. The researchers said prosecution narratives included racial stereotypes about gangs despite recent CPS efforts to address this issue. The only trial observed in which all but one of the defendants was white was the only one in which all but one defendant was granted bail.
Only eight of 33 defendants explicitly identified by the prosecution as secondary parties charged with murder or attempted murder were convicted of the respective charge.
In one case, in which 50 charges were brought against eight defendants, the jury returned a single conviction against one. The authors said their findings aligned with earlier research by the Centre for Crime and Justice Studies, based on a significantly larger sample, which found that the conviction rate for secondary suspects indicted for murder was 40%, compared with approximately 60% for all murder indictments.
The new report said that cases were often based on speculation rather than facts, while knowledge and intention – key components of secondary liability – were routinely presumed, rather than evidenced.
Keir Monteith KC, who wrote the foreword, said the report was 'seismic' and provided further evidence of institutional racism in the criminal justice system.
'The CPS must stop prosecuting young Black men for murder and other serious crimes just because they are voluntarily present somewhere near the scene,' he said. 'Remanding and wrongly prosecuting these young Black men for crimes they did not commit is immoral, contrary to the rule of law and costs millions. It has got to stop.'
Appeal said it intends to invite prosecutors, judges, policymakers and other stakeholders to a roundtable to determine the best way to end the inappropriate overuse of the law.
A CPS spokesperson said prosecutors 'use all available evidence to piece together each defendant's role in a crime. A central thread of fairness runs through how we look at these cases.
'We choose the right charges for the right people based on the evidence in front of us. We look objectively at the evidence before making our own decisions.
'The CPS carefully monitors joint enterprise prosecutions, with senior legal oversight over every case to ensure that our approach is fair and proportionate.'
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