In the Media

When should one gang member take responsibility for the actions of others? | Duncan Campbell

PUBLISHED January 18, 2012

Guidance from the director of public prosecutions on thorny issue of 'joint enterprise' is long overdue

Two weeks after the conviction of the killers of Stephen Lawrence, today's report on joint enterprise by the commons justice select committee could not be more timely. Central to the prosecution case in the Lawrence murder trial was the fact that it did not matter whether the pair had carried out the actual stabbing, but whether they were part of an attack that could clearly end in serious harm. Few would argue that Gary Dobson and David Norris should have been able to escape punishment just because the jury did not know who had actually delivered the fatal blows.

But take another scenario: a group of teenagers, perhaps including someone's little brother who likes to hang around with the older boys, accost another group. They fight. One of the second group dies. Should all members of the first group be convicted of murder and jailed for life? Or should the jury give all the members of the group the benefit of the doubt because it was unclear who struck the fatal blow? If the jury choose the first option, they could jail for life a young man who had no violent intention but was just hanging out with his older brother's friends. If they choose the second option and clear them all, it could have a devastating effect on the family of the dead boy, who have to see the killer of their son go unpunished.

Currently the court of the appeal is having to deal with a long procession of appeals based on the fuzzy area between "association and complicity", as the committee puts it. Essentially the appeal court is having to answer the question: is it better that a few young men, who have only a peripheral involvement in a murder, go to jail, rather than have a situation where a gang all escape punishment by blaming someone else for wielding the weapon? Is rough justice better than no justice at all?

In its evidence to the committee, the Prison Reform Trust referred to the "dragnet" effect of the current situation, whereby many are punished for the crimes of the few, and young people who had no intention of causing serious harm find themselves punished. This is also the concern of Joint Enterprise Not Guilty by Association (JENGbA), the organisation that represents the families of people convicted in joint enterprise cases. As the chairman of the committee, Sir Alan Beith, has put it, the current state of play is "so complex that juries might find it impossible to understand how to reach the right verdict".

We live in a punitive, post-riots world where there is little sympathy for anyone who hangs out in a gang. The argument is being made that the joint enterprise rule helps discourage young men from being part of knife-wielding gangs and that lives are being saved as a result. But the evidence the appeal courts will be hearing over the coming months will show that some young men who played, as the report has it, "a very minor part in a very serious offence", have a case that demands to be heard.

Surprisingly, there are no statistics on the use of joint enterprise, but the JENGbA website says that "hundreds of prisoners" claim to be "serving lengthy sentences ? for something they did not do".

As the justice committee report states, it should not be the function of the law to "draw people into the criminal justice system inappropriately". Equally, people should not be able to escape punishment by cynically pointing the finger at others. As cases such as Stephen Lawrence have showed, the failure to prosecute the perpetrators of murder can be just as much a miscarriage of justice as a wrongful imprisonment.

The report recommends that the director of public prosecutions should issue guidance on the threshold at which association potentially becomes evidence of involvement in crime. The director of public prosecutions, Keir Starmer QC, has already agreed to do this. It will not be an easy task, but such guidance is long overdue.

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