The Memo: What is joint enterprise and why is the CCJS pushing for reform?

If you’re up to date with criminal law in England and Wales and some of its more controversial areas, chances are you’ll have come across the doctrine of joint enterprise. The legal doctrine comes from an 1846 case, R v Swindall and Osborne. In that case, two cart drivers were racing each other when one hit and killed a pedestrian. Even though no one knew which driver hit the man, both were held jointly liable because they’d encouraged each other by participating in the race. There are three situations in which joint enterprise can be applied: when two or more people commit a crime together; when someone helps or encourages another person to commit a crime; and when two people are committing one crime together and one of them commits a second crime which the other should have foreseen. For example, the third situation would apply in a situation where two people commit a burglary together and one of them kills the homeowner after being caught on the property. Under the current legal framework, the other person should have foreseen this as a possibility and is therefore jointly responsible for the death.  

The sentencing of the culprits in the murders of Stephen Lawrence and Shakilus Townsend are some more high-profile examples of joint enterprise in action. David Norris and Gary Dobson were convicted under the doctrine in 2012 for the 1993 racially motivated murder of Stephen Lawrence, who was stabbed by their gang. Samantha Joseph, meanwhile, was jailed for ten years for the 2008 murder of 16-year-old Shakilus Townsend after she lured him to a cul-de-sac where her boyfriend beat him with a baseball bat and stabbed him six times. They were both convicted of murder for their participation in the crime. 

So, why are we talking about joint enterprise now? Well, it’s always been a bit of a controversial area of the law, with academic and criminal justice professionals on occasion questioning its contribution to delivering justice. One of the main concerns is that a murder prosecution usually requires two elements: the action (the actus rea), and the necessary intent behind it (the mens rea).However, joint enterprise can allow defendants to be convicted without establishing a necessary intent for all defendants. Add sentencing laws into this too, and it’s possible that those on the periphery of a murder could be handed some hefty, and arguably excessive, sentences. The Centre for Crime and Justice Studies (CCJS) argues that the use of the doctrine has led to overcriminalisation, convictions with little evidence of intent, and potentially discriminatory outcomes in some cases.  

A proposed amendment to the law of joint enterprise was debated by the House of Commons, but blocked by the Conservative government in February 2024, with then justice minister Gavin Bacon saying that the change could create “difficulties in securing a conviction and therefore bringing offenders to justice.” The proposed changes were meant to narrow the scope of joint enterprise to effectively ensure that it is only used when an individual has significantly contributed to a crime. The bill had come from Labour MP Kim Johnson and, with a Labour government now in place, the government is being urged to once again consider reforming the law, with the CCJS at the forefront of the push. When Prime Minister Kier Starmer was Director of Public Prosecutions in 2012, he told the Commons Justice Committee that prosecution under joint enterprise “does not work well” in many cases, especially murder, when someone might have “played a very minor part in a very serious offence but is nonetheless convicted.”

So, with a new Labour government and an imminent report from the CCJS on the legal doctrine of joint enterprise, there may be change afoot within this area of the law. Keep your eyes peeled to see where the law heads next and, in the meantime, check out our handy practice area guide to find out more about life as a criminal lawyer.