Joint enterprise, ‘gangs’ and racism: time to halt this continued injustice

Joint enterprise, ‘gangs’ and racism: time to halt this continued injustice


Written by: Becky Clarke

The Crown Prosecution Service (CPS) has today published the data from its joint enterprise pilot flagging scheme. By reviewing case files during the period of February to August of 2023 information has for the first time been captured on the use of joint enterprise (JE) in criminal prosecutions. JE is a term used to describe a set of legal principles developed by the courts which allows for more than one person to be convicted of the same offence, even where defendants are convicted of murder or manslaughter even if they did not play a decisive role, sometimes with whole groups convicted for a crime committed by one person.

It is important to acknowledge the obfuscation that has preceded this publication of ‘official’ data on JE. Following a decade-long delay since initial calls for data collection and reform of JE law. The deadlock was finally broken in February after a judicial review claim was brought by Liberty and JENGbA, alleging that the CPS’s failure to collect data on the protected characteristics of defendants in JE cases was a breach of the duty under the Equality Act 2010 to have due regard to the need to eliminate race discrimination.

So, what does the long-awaited information actually tell us? Sadly, in many ways, nothing we didn’t already know. The numbers of people charged as defendants in JE cases is both deeply shocking and yet unsurprising. Anyone listening to JENGbA, the grassroots campaign formed in 2010 by prisoners and families affected by JE, has long known about the scale of this particular injustice.

The CPS pilot covers just over six months of this year and includes six of the fourteen regional CPS areas. [1] This review of all ongoing and new homicide and attempted homicide cases where they are being prosecuted on a JE basis has resulted in 190 cases being flagged, representing 680 individual defendants.  This is huge, and illustrates the potential for net-widening and the spiralling human and financial costs of JE defendants spending decades in a broken and violent prison system.

Image: JENGbA legal win in JE dispute. Credit: Liberty

Beyond the headline statistics, this article seeks to make sense of what is happening in these cases. By connecting this CPS analysis to an ever-growing body of research, we have been collectively building over near on a decade, I explore how and why these patterns in prosecution exist.

What’s going on?

CPS pilot data substantiates the findings from previous research, including that by me and Patrick Williams published in 2016, that JE prosecutions are disproportionately used with Black, Asian and other racialised defendants. We would anticipate issues of data coverage and accuracy with the CPS information gathered here on ethnicity because much of it is drawn from police systems or where gaps exist they filled in retrospect. Notwithstanding these problems, the disproportionate use of JE is clear. Across the whole pilot data set 56% of the defendants in these cases are from Black, Asian and other racial minority backgrounds. When we remove the ‘unknown’ ethnicity cases this means almost two thirds of defendants, and the most significant ethnic category is ‘Black’, reflecting one third of all defendants in these JE flagged prosecutions. Understanding the structures and processes that cause such inequalities is critical, particularly how continuities in systemic forms of racism can shape these distinct prosecution and punishment strategies. I will return to unpick this further in a moment.

There are other concerning patterns of disproportionate use. The data suggests that 37 defendants have a disability. Again, coverage is patchy here, with disability ‘unknown’ for 18% of defendants. However, where the CPS did flag the defendant’s disability it often reflects a learning need, a neurodiversity or mental health issues. This raises questions about whether the CPS is following its own policy with regards to unnecessary charging of vulnerable defendants.

Also, a small but significant proportion (7%) of the defendants in these cases the CPS reviewed are girls and women. The CPS data shows that these 47 girls and women drawn into JE cases are more likely secondary parties, substantiating findings from our research about the over-criminalisation of female defendants in JE cases.

Perhaps most alarming in the new data is the age range of the defendants prosecuted using JE. A concern highlighted recently in some longitudinal analysis of homicide cases with multiple defendants was how the age of such defendants has been lowering over time. Children and young people made up over half (54%) of the defendants in these CPS pilot cases, and these young people were disproportionately likely to be from Black Asian and other minority ethnic backgrounds. For a young person who finds themselves in the dock of an adult Crown Court in a murder trial, the stakes could not be higher. In comparison to other countries in Europe and beyond, the use of life sentences for children and young people in the UK is shocking. As is the litany of suffering and harm they experience. This analysis of JE use may be critical in understanding how we got here.

Now you see it, now you don’t – dangerous associations and the ‘gang’

In our research we revealed how the ‘gang’, in many cases a central feature of the prosecution narrative, is a primary signifier of collective culpability in JE cases, acting as a deeply racialised marker of criminality and dangerousness. Political and media rhetoric of the ‘gang’ has established it as the contemporary ‘folk devil’, to blame for a discreditable plethora of harms and social problems.

The power of the ‘gang’ narrative in JE prosecutions rests largely on a range of racialised signifiers that can both intensify the use of a ‘gang’ narrative, or even replace or produce the ‘gang’ narrative without requiring an explicit reference to it. Prosecutors ‘attribute racialised criminal markers upon those in the periphery of events’, with these courtroom strategies drawing on long precipitated criminalising narratives of the communities within which many of the defendants live.

Findings from the CPS pilot suggests, as they see it (and we could write a whole article on this issue alone!), just 21% of these cases reviewed are ‘gang related’. Whilst closer to one third of the London North cases, this is lower than would be anticipated given previous research on JE. As someone who has followed cases in the northwest, especially Manchester, I would question whether this review accurately reflects the actual use of the ‘gang’ in the cases we have seen go through the courts in the period of the pilot. Reflecting the impreciseness of the concept, its application is difficult to judge especially in a review of the prosecution process like that of the CPS pilot where the case may be examined at a very early pre-charge stage. We have seen the ‘gang’ appear and disappear at different stages of the process of criminalisation, meaning whether a case was reviewed pre-charge, or during a trial, might be significant in ‘seeing’ the ‘gang’ narrative emerging.

JENGbA in House of Commons 11 September
JENGbA in House of Commons 11 September

Our research and recent cases going through courts, reflect how some judges are cautious about how the police and prosecutors define ‘gangs’, with some dismissing ‘gang’ evidence as it appears in the court. This may in turn lead to prosecutors being more circumspect in its use as a prosecution strategy. Yet research shows that in cases where the ‘gang’ isn’t the primary signifier, the racialised signifiers that produce the ‘gang’ in the mind of the jury may remain present even where the explicit narrative of ‘gang’ A and ‘gang’ B is not.

If those signals are still present then we would argue that the racialised ‘gang’ remains a powerful guilt-producing device in the courtroom and with juries, shaping and adding weight to the prosecution and sometimes judicial inferences about collective intent and culpability. This is especially relevant for the many defendants who have not engaged in violence, who may have sought to withdraw from events, or were not present at the scene when the violent incident occurred.

Proximity to whiteness – a case of resisting culpability

Ninety-five defendants in the JE cases reviewed for the pilot are children aged 17 or under. There are then a further 271 are young adults aged 18-24 years. That over half (54%) of the defendants are children or young people is of huge concern. With sentence lengths in such cases often stretching to decades (in our research JE prisoners under 25 were serving an average of 20 years), the reality being that young people will likely be in prison longer than they have been alive.

If convicted of manslaughter, as seems to be increasingly the case for some of the children and young people drawn into the JE net, the consequences remain grave. Once they have served their years in prison, they are released with a conviction they must declare for the remainder of their lives. They are viewed as a ‘killer’ in all future contexts in their life.

Some of these children and young people will then be drawn into the immigration system, facing potential deportation during their sentence or after their release. In this immigration context I have observed how the racialised ‘gang’ narrative, set out in criminal court, is used to claim a young person convicted of manslaughter in a JE trial poses an ‘imperative threat’ to public protection. For these children and young people, their future lives will be forever shaped and curtailed by the JE conviction.

Does it have to be so?  Is the over-charging of children and young people in these cases necessary or inevitable?

Legal principles central in JE cases such as the mens rea or intent,[2] and the high bar required for the defence to demonstrate that the defendant withdrew from events, make it extremely difficult for even the most committed defence lawyers to counter prosecution claims of a young person’s intent. This is particularly so when phone evidence such as photos or music lyrics can be used powerfully in the court to claim a collective mindset.

There are cases though where, even when such evidence of young people carrying knives exists, a murder or manslaughter charge is deemed not appropriate. Where the powerful racialised signifiers are not in play, it can be argued that the young person has been ‘playing at “middle-class gangsters”, listening to drill music, smoking cannabis and carrying knives’, or engaging in ‘idiotic fantasies’. By creating distance from the ‘reality’ of the gang or dangerousness such cases reveal how significant racialised narratives are in effect determining culpability. The proximity to whiteness, or to ‘middle-class’ values, can insulate a young defendant and ultimately change the outcome, from the prosecution charge to conviction and sentence.

Who wins – examining shared pressures and decision-making

Even a brief journey into the criminal law literature on the legal principles of joint enterprise reveals how thorny and often incongruent their application has become. Similarly, dip your toe into the discussion around the ‘gang’, whether in academia or local communities, and you will experience an equally complex, charged and contradictory debate about definitions and the significance of the ‘gang’ in an understanding violence, in particular youth violence.

In the context of policing and prosecution though, it may be the impreciseness of these concepts that determines their value. The racialised ‘gang’ as a guilt producing device, alongside joint enterprise extending liability for a crime, have the potential to (re)produce and legitimise each other. With distinct ‘gang’ policing and surveillance strategies producing a range of evidence for a criminal trial, how would this inform CPS decision-making regarding success of conviction and ultimately the charge decision?

In a dialogue between police officers and prosecutors that is currently undisclosed, and notoriously difficult for even the defendant to access during or after the process, a charging decision is made. How does the increasingly pre-emptive approach to policing, the gathering of data and searching online accounts, or the availability of a police ‘expert witness’, inform the prosecution charge decision and approach? A ‘gang narrative’, shaped in the courtroom by police intelligence or expert witness statements, can support ‘conviction-maximising’, when there is no evidence of a defendant’s physical participation in the crime.

Whilst not suggesting this inter-dependency of the police and CPS in such cases is wholesale or clear cut, as with judges, there may be cases where the local CPS are more circumspect of the police case summary or intelligence. Given this data we must be open now to exploring the likelihood of overcharging in these cases, and question how this may lead to discriminatory outcomes. Understanding how such charging decisions are made in JE cases, how the contributions of individuals as ‘principal’ or ‘secondary’ defendants are determined (or actually not determined in many cases, as the CPS data suggests), is going to be key to dismantling its disproportionate use.

Decisions are made in such a highly charged context and with a lack of transparency. On the one hand, locally a person has been seriously harmed or lost their life, and families and communities need a response.  On the other, the pursuit of unfair and racially-biased joint enterprise prosecutions only serves to systematically inflict more harm on the very same communities.

JE prosecutions are both occurring within and contributing to a criminal justice system in crisis. Now is the time to halt what has been recognised by campaigners and political figures as a widespread miscarriage of justice.

[1] The CPS areas included in the pilot were North East, North West, Yorkshire and Humberside, Merseyside and Cheshire, the West Midlands, London North and London South.

[2] In joint enterprise cases the prosecutors must prove that a secondary party assisted or encouraged the principal to commit the crime, and that they intended to assist or encourage the principal. Even post the 2016 Jogee ruling on ‘foresight’, what constitutes assistance or encouragement is not properly defined by law.

Featured image: JENGbA campaigners. Credit: JENGbA

The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.

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