Imagine you go with your friend to burgle a shop. On the way, you foresee that it’s possible that your friend might kill someone during the burglary. You don’t want anyone to be killed, but you’re still really keen for the burglary. The burglary gets out of hand, and your friend does kill someone. Are you guilty?
Up until a week ago, the answer would’ve been yes – you would’ve been guilty of murder as an accessory.
The Supreme Court has now, finally, reviewed this law (coined ‘joint enterprise’) and emphatically stated that mere foresight cannot be the basis for a conviction for murder as an accessory. This is a law that has been applied since 1985 amidst extreme controversy, and I doubt that anyone who cares about justice will miss it. The new requirement for a murder conviction of this kind is intent, both to assist or encourage the crime and to commit the crime itself. This fits much more readily with our understandings of intent – as the Supreme Court stated, guilt by association should have no place in our law. The problem is that guilt by association does and still will have a place in the law. Foresight can still be used to infer ‘intent’; this is no giant leap at all.
There are a host of other problems with joint enterprise. This is because joint enterprise is used to catch ‘gangs’. It’s an unjust replacement for repeated public policy failures. We convict people based on association, and because it isn’t based on any decent law, it allows prejudices and stereotypes to take precedence.
This is all too evident in the case of race. A recent study into joint enterprise, gangs and racism showed that, of those convicted under joint enterprise laws, 38.5 per cent are white, and 57.4 per cent are BME. Of those imprisoned for joint enterprise, the notion of gang membership was used in 59 per cent of cases – 69 per cent of those were in cases involving BME defendants. 79 per cent of all BME defendants convicted of joint enterprise were said to be gang members during their trials; this figure dropped to just 38 per cent in cases involving white defendants. And how many actually were in gangs? Five. These numbers are grossly skewed racially, and are so far from the truth that it’s hard to believe they come out of courts of law. Why would we want to convict young BME men simply for being in gangs? The facts argue against almost every explanation based on truth and justice – it exists, apparently, solely as a deterrent.
But even the House of Commons Justice Committee acknowledged the huge risk in justifying joint enterprise on the basis that it might send a social signal and deter people from joining gangs. The only way any law can do this is if it convicts people. And the only way it can deter people from joining gangs is by convicting people who are members of gangs. Except, as we’ve seen, we’ve convicted people who aren’t members of gangs – we’ve convicted them because they were seen with a gang member, once, or because they were hanging around them on the night of the offence. Guilt by association is the whole point of joint enterprise.
Getting rid of foresight as the sole mental element will not change this. The Supreme Court made it quite clear that little would change. When foresight can be used to refer intent, you don’t need to show that what the defendant did encouraged the other to murder. Associating with the killer and being present at the time aren’t necessarily enough, but do help to build up the picture. Knowing whether another party has a weapon is just another piece of evidence.
The very concept of accessory liability involves holding one individual legally responsible for the act of another. This isn’t a very easy position to start with, but it’s defensible. But by expanding the law beyond clear assisting and encouraging, English courts have entered into unjustifiable territory. Courts have become arenas in which racial stereotypes thrive, in which young BME men are labeled murderers simply for being around someone who killed another. I’m not denying that gang violence should be tackled – although it’s worth noting just six per cent of 10-19-year-olds say they’re in a gang – but this shouldn’t happen through the manipulation of otherwise justifiable laws. Correcting this wrong in the law of accessory liability is a good start for the English courts, but it should be just the beginning.