Need for reform? The Bureau examines controversial law of joint enterprise

Whole groups can be prosecuted for one person’s actions (Shutterstock: group)

Laura Mitchell’s school days were cut short when she fell pregnant at 16. Five years later she had got her life together, was bringing up her son, had gone back to study, passed her GCSEs and was about to start a midwifery course. She had everything to look forward to until a night out ended in murder.

That Saturday night in January 2007, Mitchell was on her way to the cinema with her boyfriend Michael Hall. They stopped for a drink at the Kings Head in Buttershaw in Bradford where they lived. Mitchell’s younger sister Casey Kellet remembers that they were on their way to see The Pursuit of Happyness but never made it to the cinema. About 2am they left the pub and piled into a taxi parked outside. It turned out to have been booked by someone else and a fight broke out. When it ended Mitchell began stumbling about the car park trying to find her shoes, which had come off in the fight. Meanwhile, some of her male companions went to a nearby friend’s house, armed themselves with weapons and returned. A much more serious fight broke out during which a man was killed.

One of the group, Carl Holmes, pleaded guilty to murder and got life. Mitchell, her boyfriend and another man were also convicted and given life sentences. In Mitchell’s case, under the 300-year-old law of joint enterprise, remaining in the car park made her complicit in the murder, even though it was accepted in court that she might not have participated in the second attack at all.

There is a growing chorus of concern from leading figures in the judiciary and academia, MPs and campaign groups that something is wrong with a law that makes someone like Mitchell a murderer. Joint enterprise allows for more than one person to be charged for the same crime. If it can be proved that the participants were working together, they are all guilty of the crimes committed during the course of their joint enterprise, regardless of the role they played. Even though you fired no shot, threw no punch, stabbed nobody – if you were there, or were connected to people who were there, and can be shown to have realised a murder may happen – joint enterprise says you can be found guilty.

Related story: Revealed – thousands prosecuted under controversial law of joint enterprise

The Bureau of Investigative Journalism  set out to examine the law, and to establish in the absence of official data, how often it is used and how many cases there might be like Mitchell’s, which cast doubt on the fairness of the law. Now, for the first time, the Bureau is able to supply new evidence into the extent joint enterprise is used in homicide convictions. This includes murder, which carries an automatic mandatory life sentence.

The Crown Prosecution Service does not collect figures on the use of joint enterprise, but an indication of its use is a case that involves multiple defendants. So the Bureau gathered data to show the number of homicide cases prosecuted that involved more than one defendant. The data, unearthed using Freedom of Information Act requests, reveals that in the years 2005-2013, the total number of people tried for homicides involving more than one person was 4,590. Of these 1,853 were for cases involving four or more defendants, an indicator that legal experts agree almost definitely points to the use of joint enterprise. These are not small, periphery figures. In 2013, 41% of all prosecutions for homicide involved two or more defendants, and over 17% involved four or more. The Bureau’s research also found that the rate of joint enterprise cases being heard in the Court of Appeal has significantly increased, with one in five published cases in 2013 involving joint enterprise. This is almost double the rate in 2008. Almost all appeals fail.

Laura Mitchell and her family are among 400+ people who have contacted campaign group Joint Enterprise Not Guilty by Association (JENGbA) claiming unfair convictions. Among JENGbA’s caseload are people of all ages, black, white, Asian, men women, teenagers and pensioners, some with previous convictions, some without. Responding to pressure from JENGbA in 2011, the Justice Select Committee held an inquiry into joint enterprise which resulted in a call for urgent reform.

Canvassing legal opinion, the Bureau approached Professor David Ormerod, the Law Commissioner. He set the pace. One of the most senior criminal lawyers in the country who advises government on criminal legal reform, Ormerod told us he thinks the law is unclear and questions whether or not it is fair. ‘Unless the law is clear – and I’m not certain it is – then you increase risk of injustice. If the law is unclear, it can be applied in an inconsistent way. It’s possible because of the complexity of the law, that it has been applied incorrectly….Even if you made the law on joint enterprise crystal clear, that leaves the question whether the law on murder is fair when applied in such cases? Is it fair that someone is convicted for murder if they have foreseen as a possibility that someone else might intentionally kill or cause serious harm?’ he asks.

When senior legal figures question the clarity of the law, it’s hardly surprising that  Laura Mitchell’s sister Casey Kellett is confused. In cursive script on her right arm Casey, now 22, has a tattoo. It says: ‘Our roots say we are sisters, our hearts say we are friends’.  Surrounded by court papers, she tries to get to grips with the complexities of her sister’s case, convinced she is innocent, and as bewildered now as she was seven years ago when her sister went out one night as a young mother like any other and ended up behind bars, a convicted killer.

Joint enterprise is part of common law, so rather than having been debated and agreed on by parliament, it is left to the courts to interpret through individual cases. Over the years, it has become riven with anomalies and contradictions, mutating and accruing nuances as it has evolved through case law. It is also convenient politically. Gang violence and gun and knife crime are real problems, which result in tragedy and inspire fear in the public. Those responsible for law and order have to do something. Joint enterprise provides a rough, ready, powerful solution.

No one in the legal profession spoken to by the Bureau during the course of its investigation thought the core principle at the heart of joint enterprise should be abolished. Joint enterprise is what finally put Stephen Lawrence’s killers behind bars when it was impossible to say who had fatally wounded the teenager in 1993. It makes the person who hires a contract killer potentially as guilty as the gunman, and puts criminal kingpins, traffickers, drug dealers and others on trial alongside the underlings who do their dirty work.

Related story: ‘We need this law’, says Lorraine Fraser, mother of murdered teen

Joint enterprise can be used to prosecute any crime but is of particular concern in murder cases. As a lone killer, to be guilty of murder, it has be proved that you intended to kill or cause serious bodily harm that results in death. But joint enterprise allows you to be guilty of murder merely if you foresaw that someone might be killed or seriously hurt during the course of your criminal activity. While netting genuine criminals, its evidence bar is low enough to scoop up those not directly responsible for murder and other major crime.  As Professor Graham Virgo of Cambridge University told us: ‘My main concern is that a defendant can be convicted for murder, with the mandatory life sentence, even though he or she did not cause death and did not have the intention to kill or to cause serious injury.’

Andy Hall QC is one of several senior lawyers who is concerned: ‘No-one would have any difficulty finding you guilty if you participate in some way in the offence and you intend what happens to happen. You ought to carry criminal responsibility,’ he says. ‘But we’ve reached the point that if you simply foresee a possibility that someone may cause someone some really serious harm, then it becomes a much lower threshold. The way the law has developed permits people to be convicted of murder who did not intend or desire that to be the result of what was going on. It seems to me that crosses the line. It goes too far.’

Related article: Opinion – ‘As I got into the small print of joint enterprise it seemed I had wandered through the looking glass’

Dean Pinnock and eight others were given life sentences in September 2004 for a drive-by shooting in Sheffield. Pinnock wasn’t present when the shooting took place and says he did not know it was going to happen. But he had been at the scene of a scuffle earlier that evening, which police tied to the subsequent murder. He was also present the following day when the car used in the murder was burned. This would have earned him a four-year sentence for perverting the course of justice.

Related story: Dean Pinnock – ‘I puzzle at your involvement’

But under joint enterprise, Pinnock was included in the murder charge. The prosecution convinced the jury that because he had been involved in incidents linked to the shooting, he must have been ‘in’ on the murder. The man who actually burned the car was not charged with any crime and became a prosecution witness at the trial. The judge himself said of Pinnock, ‘I puzzle at your involvement.’ Pinnock’s sentence was life with a minimum of 20 years. He was just 18 at the time.

Once ‘association’ with the group has been established, joint enterprise is a powerful prosecuting tool, and it gets even easier once knowledge of a weapon is involved. ‘If they knew their co-defendant had a weapon, you can infer they must have foreseen they may use it, and then you’re half way there to a murder conviction,’ Professor Ormerod told us.

By examining the data, looking at several cases, and amassing expert analysis from leading legal minds, the Bureau found compelling evidence that joint enterprise is casting its net too wide and drawing in people who are remote from the crimes for which they are convicted. Many suggest the threshold to securing a conviction using joint enterprise is too low, causing people to be found guilty of murder when they did not intend for anyone to die. People are being convicted and sentenced to life imprisonment on what can be proved they thought might happen – a basis described by many legal experts as too weak and elastic for the most serious of crimes. Mandatory life sentencing for murder means prison terms in some cases can seem disproportionate to the actual crime committed by the defendant.

The Justice Select Committee recommended that rather than leaving it to the courts to rule on, joint enterprise should be clearly enshrined in statute. Professor Ormerod believes the case this kind of reform is ‘overwhelming’. This would come too late, however, for the potentially large number of people whom, had it not been for the complexities of joint enterprise, could have served lesser, or perhaps, no jail terms at all. 

Justice Minister Damian Green responded to the Bureau’s findings, saying: ‘Joint enterprise law has enabled some of the most serious offenders to be brought to justice. It ensures that if a crime is committed by two or more people, all those involved can potentially be charged and convicted of that offence.

‘Sentencing in individual cases is a matter for the courts. We have no plans to change the law in this area.’

A CPS spokesperson said: ‘We know this is a complex area of law that divides opinion but there are a number of cases, including the murder of Stephen Lawrence, that would not have seen anyone convicted for very serious crimes if not for joint enterprise. The CPS does not make the law, it applies it as directed by Parliament and the courts.’

Addressing the rise in appeals, the CPS said: ‘We are not aware of any substantial criticism by the Court of Appeal and we issued new, detailed guidance for prosecutors at the end of 2012 which sets out what must be taken into account when handling a case involving joint enterprise.’

Related story: Joint enterprise cases heard at Court of Appeal double

Many of those caught in joint enterprise’s net are, as one defence barrister said,  ‘unsympathetic characters’, guilty of criminal behaviour, but regardless of their criminal history they shouldn’t do time for crimes they didn’t commit. In newspaper and television reports, the accused stare menacingly out of police mug shots, endorsing an image of them as mindless thugs. Casey’s pictures of her sister Laura show a young woman, barely five feet tall, pretty and smiling – completely different to the grim-faced embodiment of binge-drink Britain, as Mitchell was portrayed in press reports. Public sympathy goes naturally to the victims of crime, their families and friends. But as Lord Phillips, former Lord Chief Justice and former president of the Supreme Court, told the Bureau  – joint enterprise is ‘capable of producing injustice.’ No matter the status of a defendant – whether an innocent bystander swept up in momentary chaos and violence or a criminal with previous convictions  – no-one should do time for a crime they did not commit.

Related story: Joint enterprise – a definition