The restating of the principles of joint enterprise is an important and welcome development for youth justice
Just for Kids Law intervened in the case of R v Jogee  UKSC 8, 18 February 2016, because we were concerned about the impact of the joint enterprise doctrine on children. There was evidence suggesting a disproportionate number of young black men were serving lengthy sentences as a result of the doctrine1Ben Crewe et al, ‘Joint enterprise: the implications of an unfair and unclear law’, (2015) Criminal Law Review, Issue 4, 249, 263. and the principles involved were complex. Try explaining to a 13-year-old what makes him guilty of an offence when the jury is given an eight-step route to verdict.
The complexity raised two distinct concerns: firstly, whether a child faced with a charge could understand it sufficiently to be able to engage with the questions the jury is being asked to determine and then effectively participate in his or her own trial; and secondly, whether the doctrine was sufficiently intellectually coherent so that it provided a deterrent effect and that, in any given situation, a child would know whether or not he or she was committing an offence.
Too little note is taken in our justice system of the increasing body of evidence showing how the adolescent brain develops and whether children actually have the capacity to deal with the legal concepts we expect them to. The Supreme Court in America has considered such developments shown in neuroscientific studies in cases such as Roper v Simmons 543 US 551 (2005) (abolishing the death penalty for crimes committed as a juvenile).
Parasitic accessorial liability also ran contrary to the concept of fair labelling.2Andew Ashworth and Jeremy Horder, Principles of criminal law, 7th edition, Oxford University Press, 2013, p77. For the first discussion of fair labelling, see Andrew Ashworth, ‘The elasticity of mens rea’, in Colin Tapper (ed), Crime, proof and punishment: essays in memory of Sir Rupert Cross, Butterworths, 1981, pp45, 53.
Research undertaken by the Institute of Criminology at Cambridge University showed that a far higher number of offenders convicted using joint enterprise considered themselves to be innocent of the offence of which they were convicted, than those not convicted using the doctrine. Many of those accepted that they were guilty of an
offence, just not the one of which they were convicted.3Crewe et al, ibid, p263:Often expressed in [their] statements was a feeling that, even if they were legally guilty, they were not morally guilty of murder, and could not reconcile what they had done with the connotations of a murder charge, the label of being a murderer, and the penalties that went with it.
This has a significant impact on the deterrent effect of the law, and offenders’ engagement with rehabilitative programmes.
Many convicted under joint enterprise accepted that they were guilty of an offence, just not the one of which they were convicted.
, the Supreme Court effectively abolished parasitic accessorial liability, a principle that has drawn so much criticism over the years, putting an end to something that has been described as a ‘dragnet’.4House of Commons Justice Committee, Joint enterprise: follow-up, HC 310, 17 December 2014, para 26.
Going forward, we hope that this decision will encourage far more nuanced prosecuting.
Jogee didn’t just abolish the concept of parasitic accessorial liability, it also restated many of the main principles of accessorial liability and, in particular, clarified (at para 96) that manslaughter is an appropriate charge in cases where a participant of group violence does not have the requisite intent for murder, but someone is killed in the violence. In future, when prosecuting acts of group violence, those on the periphery should now be charged with lesser offences. Jogee will, to some extent, ensure that this happens, but it is also incumbent on prosecuting authorities to consider the public interest test, especially when prosecuting children, and charge an offence that adequately reflects the child’s actual culpability and not just the highest charge possible on the facts.
The judgment is therefore a welcome one: it restates the principles of joint enterprise, an important part of our criminal law, and ensures people will only be found guilty of outcomes they intended to happen. For children caught up in it, it is a step towards a fairer and more comprehensible criminal justice system. ■