Time to review police use of ‘joint enterprise’

Diane Abbott, MP for Hackney North & Stoke Newington

This article titled “Time to review police use of ‘joint enterprise'” was written by Diane Abbott, for guardian.co.uk on Thursday 29th July 2010 06.59 UTC

The centuries-old legal doctrine of "joint enterprise" has been taken up with enthusiasm by modern policemen and prosecutors. It provides one remedy for the increasingly intractable problem of how you prosecute urban gangs. However, its increased use also raises very real issues of fairness, as has been voiced by campaigners for reform, who were disappointed this week when permission to appeal was dismissed in the controversial case of Jordan Cunliffe , a partially blind teenager convicted of murder because he was present at the attack and did nothing to prevent it.

The concept of joint enterprise is not new. In the eighteenth century, if someone was killed as the result of a duel, the concept gave the authorities far-reaching powers to prosecute. They could convict not just the men taking part in the duel but also their supporters, those holding their coats and even doctors standing ready to attend to the wounded.

The most famous modern use of joint enterprise was in convicting Derek Bentley of shooting a police officer in 1952. The actual murder was committed by his accomplice, Christopher Craig. But, because Craig was only 16 at the time, he escaped hanging. Bentley was heard to utter the words "Let him have it", so he was convicted of murder under the principle of joint enterprise and hanged in 1953.

But the police appear to have stepped up the use of the doctrine in recent years to deal with the specific problem of urban gangs. Gangs are a big issue in the inner city. And this goes beyond the tabloid headlines. People feel menaced by them. Many of the most unpleasant phenomena of modern youth culture take place in gangs, notably gang rape.

In a gang, an under-educated young man finds friendship, family, possibilities for entrepreneurial activity and the bravado to commit horrific acts. Gangs are bad for the communities that they flourish in and bad for the young men involved. In certain communities, young men trying to keep their head down and pass their exams often find themselves on the fringes of criminal gangs because to do otherwise is to risk social ostracism.

But prosecuting gangs has proved an increasingly intractable task for the authorities. The gulf in culture, class and race between many gangs in modern urban Britain and the authorities trying to bring them to book makes it harder than ever to expect a penitent gang member to "crack" and tell the police all they know. On the contrary, I have had a number of instances in my own constituency where a whole gang sees someone murdered or raped, but nobody will admit to seeing anything.

This is where the joint enterprise concept starts to look attractive. The authorities are going out of their way to let young people know of its existence. In a police video presentation for young people, the policeman says: "If you are involved in a murder in any way, shape or form we will come to you. We will find you. We will come at a time when you don’t expect us and we will enter your life. We will invade your home. Invariably your front door will be removed. We will enter. This will be in front of your parents and your family, possibly your friends, and we will change your life."

But, increasingly, concerns are being expressed about the use of joint enterprise against gang activity and whether it is fair. The (then) Lord Chief Justice Lord Philips set out his reservations in his Essex University/Clifford Chance lecture on reforming the law of homicide in 2008. The Law Commission has echoed these doubts.

As a strong supporter of civil liberties, but also as someone who has first-hand experience of the problems posed by gang culture in urban Britain, I can see both sides of the argument on the use of "joint enterprise". There can be no doubt that the law warrants review.

Diane Abbott is MP for Hackney North and Stoke Newington

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