The Trouble with Joint Enterprise

The Lord Chief Justice is the UK’s most senior judge and has particular responsibility for the administration of criminal justice in the Courts. When suggests that the ‘fiendishly difficult’ law of murder needs reform, you might think that people would sit up and pay attention. On 6th December 2011 Lord Judge told a press conference that

‘It is sometimes felt that in the long run the complications [in the law] leave a sense of injustice about how an individual case has fitted into the framework overall. I would have thought myself that a careful consideration of reform of the law of murder might reduce the call for the automatic sentence to be removed.’

He also spoke of the difficulties in the legal doctrine of ‘joint enterprise’ which prosecutors use against people who are marginally involved in group violence that leads to a killing.

There is a serious mismatch between the law that allows people who are very remotely connected to a killing to be found guilty of murder, and the law that requires everyone convicted of murder, whether the actual killer or the fringe member of a gang to get the same sentence: life imprisonment. One or the other or both must change.

A little legal background. The law distinguishes between ‘principals’ – people who are directly responsible for committing offences, and ‘secondary parties’, who are guilty because they have indirectly participated in a ‘common design’ with the principal but may not have performed the criminal action with him. But in practice there are three forms of joint enterprise liability:

1. Where two or more people commit a single crime together, all as joint principals, for example when three robbers together confront bank staff.

2. Where D2 aids and abets D1 to commit a single crime, for example where D2 provides D1 with a weapon for use in a robbery, or acts as getaway driver, or gives encouragement (as, notoriously, with ‘let him have it, Chris’ in the case of Derek Bentley).

3. Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a second crime (crime B) which D2 had foreseen he might (intentionally) commit.

The difficulties arise in case 3 and are laid bare when the law deals with group violence that ends in a killing. The classic case would involve a showdown between two gangs of youths. They charge around in a park shouting and waving knives at each other. Gang A runs off, but Gang B sees and chases after a straggler.  The leaders of gang B catch up with him and stabs him. He dies on the spot. The killing takes place out of sight of X, who was at the back of Gang B and did not know about the stabbing until afterwards. Now, if X went to Park intending to do some violence in the showdown with gang A, and he foresaw that someone else in his gang might kill or seriously injure another person, then X is guilty of the murder as much as the stabber. The judges have developed the doctrine of joint enterprise to make this possible.

So joint enterprise makes X guilty of murder without intending to kill or seriously injure anyone  – the necessary mental elements that must be otherwise be proved in murder. He did not use a weapon. He did not see the weapon being used. He did not know that a killing had occurred. He is guilty because he joined in another, prior ‘common design’, and foresaw that some one else might (intentionally)  kill or cause serious injury.

He will get a life sentence: the minimum time he has to serve before he can be considered for release on licence may be shorter than the actual stabber’s but it is a life sentence nonetheless.

Can a conviction for murder on that basis be justified, and if so should it call for the same sentence as the real killer gets?

The meaning and application of joint enterprise in murder cases has occupied the country’s most senior judges in the House of Lords/Supreme Court and the Court of Appeal (Criminal Division) with worrying regularity over the last 20 years, and each time the Court has given subtle but important variations to its statements of what the law is. (For reference, the leading cases are R. v Powell & English (1999) House of Lords; R. v Rahman (2009) House of Lords; Yemoh (2009) Court of Appeal; Mendez (2010), Court of Appeal;  R. v A (2010), Court of Appeal)).

Another case, Gnango (2010, Court of Appeal) shows how far the Courts have been prepared to go and is worth looking at in more detail. G and some one referred to as Bandana Man (B) had a gun fight in the street. A shot from B’s gun killed a passerby. Bandana Man ran away. A jury convicted G of murder, having been directed that if they thought G & B had taken part in the joint enterprise of affray (ie the unlawful violence in the gun fight between themselves), and if G realised that B might kill someone by shooting, then G was guilty of murder.

The Court of Appeal unusually assembled 5 of its most senior Judges to hear the appeal (the usual number is 3). They decided that the Judge’s directions went too far – they thought that the killing by B of the passerby was too far outside the scope of the joint enterprise (G and B to shoot one another) for G to be guilty of her murder. The prosecution appealed to the Supreme Court, including Lord Judge. In a judgment given on 14th December 2011 they upheld the conviction by a majority of 6-1. They took a broad brush approach, deciding that G and B had chosen to indulge in a gunfight in a public place, each intending to kill or cause serious injury to the other, in circumstances where there was a foreseeable risk that this result would be suffered by an innocent bystander. It was a matter of chance which of the two fired what proved to be the fatal shot.

So liability depends on joining crime A and foreseeing that crime B might occur. That is a very open-ended basis for convicting people. The sheer number of times that joint enterprise has come before the highest appeal Courts clearly suggests that trial judges, and maybe even the appeal judges, are having difficulty in formulating and applying the law correctly. If they struggle, what are teenagers who may get caught up in group violence meant to think? You go along for what may be an ugly bit of fighting – perhaps sparked off by an immature row outside the school gate; things get out of hand – some one pulls a knife; a boy is killed – and you can be found guilty of murder if you foresaw or realised that it might happen. Please note: ‘might happen’; not ‘would happen’. Might happen.

Of course gang violence is a scourge in some places in the UK; and people die pointlessly in gang fights. Their families’ lives are destroyed. There is an undoubted public interest in discouraging and preventing gang violence, and the criminal law has an important role to play. Lord Brown expressed the view in Gnango that

‘The general public would be astonished and appalled if in those circumstances the law attached liability for the death only to the gunman who actually fired the fatal shot (which it would not always be possible to determine).’

He may well be right – in circumstances like the insane shoot-out in Gnango’s case. However, the trouble with the present law is that it allows prosecutors to cast the net too wide in some cases, and to draw in people who on a common-sense view are too remote from the killing to share full responsibility for it. The result is an increased risk that the wrong people end up with convictions for murder. Are we comfortable with a law which, in effect, allows a jury to say: you were there or thereabouts; you were in the gang; you didn’t kill but we think you all must pay? When the Lord Chief Justice speaks of a ‘sense of injustice about how an individual case has fitted into the framework overall’ this is not the voice of a wet liberal – as can be shown in the line he takes in Gnango.

If we need to convict people on this basis, shouldn’t we at least allow the sentencer to draw a distinction between the person who has pulled the trigger and his co-defendant who went along and merely foresaw that some one might be killed? While the life sentence remains the only sentence for all kinds of murder, how can that be just? Andrew Jeffries QC and Kim Evans write about the problems in the one-size-fits-all sentence in the The Justice Gap focussing on mercy killings getting the same sentence (apart from the tariff) as gangland executions. The same issue arises in joint enterprise – there must be a better and more flexible way of measuring degrees of culpability in sentences.

(This post also appears in – the brilliant online magazine which tells you what the law is really about.)


The Lost Children Of Afghanistan


There has been renewed concern about the British government’s intention to return children to Afghanistan when their asylum claims have been rejected. On 24th November the Refugee Council issued a statement urging the government to rethink its plans. In fact, this is old news. In May 2010 the European Commission (the executive branch of the government of the European Union) published its Action Plan on Unaccompanied Minors (2010-2014). It set out the difficulties for member states which receive unaccompanied asylum-seeking children from across the world, and notably Afghanistan. Welfare is identified as the key issue (as it has to be, to ensure that governments comply with the 1989 UN Convention on the Rights of the Child). On the face of it, the Commission paper does not read as a cruel charter of forced repatriation for children. It tackles among other things the urgent need to identify and care for children who have been trafficked. In line with welfare-based human rights principles it recognizes that ‘it is likely that in many cases the best interest of the child is to be reunited with his/her family and to grow up in his/her own social and cultural environment’ (5.1, under the heading ‘Return and reintegration in the country of origin’.) However, there remains considerable tension between the state’s obligation to protect children, and its desire to return ‘failed asylum seekers’ to their country of origin when they have exhausted all legal attempts to remain in the host country

In June 2010 the Home Office Minister, Baroness Neville-Jones, was asked in the House of Lords what proposals the government had for the return of unaccompanied child asylum seekers to Afghanistan. She said this:

“The House may be aware of press reports that have appeared on this issue in the past week, which may have misled. I assure the House straightaway that only unaccompanied children for whom satisfactory care and integration assistance can be provided will be returned. What is being proposed is part of that assistance. The UK is tendering for integration services for all forced-returned Afghans – that is, not just children. If that tender process identifies suitable provision for some Afghans in the 16 to 17 age bracket, then indeed it might be possible to return them. Children under that age will not be returned, but even in that age group that will depend on individual cases and the assistance that can be provided. We doubt that there will be big numbers.”(Hansard 10th June 2010)

Has this policy changed? In January 2011, following on from the 2010 Action Plan, the Netherlands, Norway, Sweden and the UK set up the ‘European Return Platform for Unaccompanied Minors’  (ERPUM) under the direction of the Swedish Migration Board. It aims

to find new methods for the return of unaccompanied minors that need to return home after receiving a final rejection of their asylum application’ and ‘to develop methods and contacts in order to find the parents of the minors who must return home, but also to find safe and adequate shelter in the country of origin. No minor will return home without a safe and orderly reception. The right to be reunited with the parents is stated in the Convention on the Rights of the Child.’

Negotiations are said to be in progress with the authorities in Iraq and Afghanistan.

The Home Office’s issued its most recent ‘Operational Guidance Note’ on Afghanistan to its officials in March 2011. Under ‘Minors Claiming [Asylum] in Their Own Right’ it gives the following guidance:

Minors claiming in their own right who have not been granted asylum or HP can only be returned where (a) they have family to return to; or (b) there are adequate reception and care arrangements. At the moment we do not have sufficient information to be satisfied that there are adequate reception, support and care arrangements in place for minors with no family in Afghanistan. Those who cannot be returned should, if they do not qualify for asylum or humanitarian protection, be granted Discretionary Leave for a period as set out in the relevant Asylum Instructions.[4.3]

This direction derives from decisions by UK Courts, which are themselves based on a thorough assessment of the evidence of extraordinarily harsh conditions for orphans and separated children. They may be at no greater risk of violent death in armed conflict than adults (which  is high, and would be regarded a utterly intolerable in any European country) but they are also liable to  be forced into militias as fighters or suicide bombers, or trafficked as prostitutes, or made to undertake forced labour or face destitution. This evidence led the specialist Asylum and Immigration Tribunal to decide in the case of LQ (Afghanistan) in 2008, followed and extended by later cases, that orphans and separated children constituted a ‘particular social group’ for the purposes of the Refugee Convention, and as such they are entitled to refugee status because every member of that group is at risk of persecution in Afghanistan. It is only if a returning child can fit into a protective family network that law and policy permit them to be returned. So if a child can satisfy the Home Office, or the Tribunal if she has to appeal against the Home Office, that she has no family to return to, she must be allowed to stay in the UK. As with any other appellant, a child has the burden of proving that she has at least taken reasonable steps (such as by contacting the Red Cross) to find out if she still has family members in Afghanistan. Another critical legal imperative is to safeguard and promote the welfare of children, a duty imposed on the Home office by Section 55 of the Borders Citizenship & Immigration Act 2009. In 2011 the Supreme Court backed this up in the case of ZH (Tanzania) stressing that in taking decisions whether to remove children the Home Office must ensure that their best interests are being protected.

What ERPUM appears to be doing is developing ‘adequate reception, support and care arrangements in place for minors with no family in Afghanistan’ of the sort that do not exist at present. Until it becomes known what the arrangements are, no one can say if they will be ‘adequate’ to overcome or at least mitigate the suffering that lone children will go through in Afghanistan. In a country where welfare and life itself are so dependent on family and kinship, and where civil society is so threatened by extreme violence, it is difficult to see how a stable and durable alternative can come into being. Until that happens, policymakers and the Courts which scrutinise them will struggle to displace the reasoning behind LQ.

Some children as young as 13 or 14 make the journey from Afghanistan to the UK. They come by air, with false papers; or travel overland, hidden in lorries and smuggled across borders. (There are often disputes about their age: the children may not know – Afghanistan does not have the capacity to issue birth certificates. Expert paediatric evidence can sometimes be used to settle the matter in the UK.) For some years the Home Office policy has been to grant ‘discretionary leave to remain’ to those whom it does not recognise as refugees, which normally runs until shortly before they turn 18. At 18 the protections given to orphan children cease, and in the Home Office’s view, removal is feasible and lawful. At that point they will apply for further leave to remain, and appeal if it is refused. The key issue then is often whether during those highly formative teenage years they have built up a strong family or private life in the UK. If it is thought that removal from that life would be a disproportionate interference with rights under Article 8 of the European Convention on Human Rights, it will not take place. Each case turns on its own facts, but commonsense and evidence suggest that it is difficult for a teenager given reasonable opportunities not to develop what the Convention recognises as private and family life during their time here. The decision is frequently whether removal to Afghanistan would have such a disruptive effect on the child that the State should not be allowed to pursue its legitimate policy of maintain faire and proper immigration control in the individual case.

Policymakers, then, are caught between three imperatives: a legal imperative not to expose returnees to a real risk of persecution or serious ill treatment, and not to interfere disproportionately with strong family and private life; a political imperative to be seen to be doing something about failed asylum claims; and a practical imperative, of how to make proper provision for returnees who are no longer welcome in the UK.

Baroness Neville-Jones forecasts that the numbers of forcibly returned 16 and 17 year olds will not be big. In 2010 the Home Office received 547 applications for refugee status from Afghan children. It is hard to see how any of them can lawfully and safely be sent back while Afghanistan remains a death trap for lone children.


(This post also appears in The Justice Gap