Should the ‘Joint Enterprise’ law be reformed?

Elize Hartzer

Joint Enterprise, professionally cited as ‘secondary liability, is a common law doctrine. It subjects all parties involved in a criminal act to the same degree of charge by the court. This dissolves the two separate distinctions in the perpetration of a crime (the principal who actually commits the act, and the secondary party who assists or encourages the principal) by ensuring that both receive equal punishment.

For example, three participants, A, B, and C, burgled a house. Participant A broke into the home whilst participant B waited in their car as a getaway vehicle, and participant C watched from an empty building across the street. Participant A was caught, and all three were tried. Despite all three having varying levels of involvement in the crime and A being the only perpetrator to step foot in the property, under joint enterprise, all three are sentenced for breaking and entering. 

As this is a common law doctrine, this means that it has developed throughout the years over a series of court cases, where each result sets the precedent for future decisions. Until the 1980s, convicting someone as an accessory to crime based on secondary liability required proof of two elements: conduct (encouragement or assistance to the principal) and mentality (having the intention to assist or encourage the commission of the crime). 

However, these aspects are difficult to evaluate accurately, which led to a new strand of secondary liability emerging from the case of Chan Wing-Siu v The Queen [1985] (AC 138) known as ‘parasitic accessory liability’. This placed a new emphasis on the accessory’s foresight into the actions of the principal in contrast to their own intentions. This means that in the scenario of persons A, B, and C committing the house burglary, if person A additionally murdered those in the property, all three would be sentenced for murder, even if the other two did not intend to commit this crime.

Whilst this may be viewed by some as an effective deterrent for crime, especially gang-related, it is more problematically recognised for its exacerbation of systemic bias and injustice, particularly against young black men. In 2017, David Cameron and Theresa May commissioned the ‘Lammy Review’, a review on discrimination within the policing and criminal justice system in the UK; it found that there is ‘significant racial bias’ and a need to reform the current system. Data from the Crown Prosecution Service (CPS) showed that 30% of defendants in joint enterprise cases were black, with most being aged 18-24, despite black people making up approximately 4% of the total population. Not only this, but a study found that male prisoners serving 15 years or more for joint enterprise were 38.5% white, whereas 57.4% were BAME, with BAME prisoners being younger and serving longer sentences. This occurs as the joint enterprise laws are very broad and vague, allowing the prosecution to easily target minority communities.

This data is highly significant as it even led the Supreme Court to regret their decisions that enabled Joint Enterprise to hold so much power in conviction. For this reason, in January 2024, Liverpool MP Kim Johnson introduced the Joint Enterprise (Significant contribution) Bill to the House of Commons. This would alter the joint enterprise laws by inserting the clause ‘by making a significant contribution to its commission’, meaning that a suspect can only be charged with joint enterprise if there is clear evidence they supported the enactment of the crime. However, whilst the bill passed its first reading in the Commons, the Parliamentary session ended for the July 2024 election, causing it to be withdrawn.

This leads to the question of whether the bill should be reintroduced, as there is little doubt that the current powers of joint enterprise allow, and even encourage, the judiciary to sanction marginal groups unfairly based on internal stereotypes. This is because they can simply decide without physical evidence that somebody was part of a gang and thus supported the commission of the gang’s crimes.