Joint enterprise, law reform and practice stasis: the ongoing problems of (un)fair labelling and (dis)proportionate punishment in complicity
Dr Susie Hulley1, Dr Tara Young2
1University Of Cambridge, England
2University of Kent, England
Despite changes to the interpretation of the legal doctrine commonly known as ‘joint enterprise’, in England and Wales (following R v Jogee and Ruddock  UKSC 8), the High Court of Australia declined to remove extended common purpose, arguing that such changes should be made by Parliament. As a result, in Australia, it is still possible to convict a secondary party of an offence, if they foresaw that it might be committed during the commission of a joint criminal enterprise. This form of ‘extended common purpose’ has been criticised for allowing a secondary party to be convicted of murder (for example) based on a lower ‘mental threshold for guilt’ than the principal offender, who has to intend to cause grievous bodily harm or murder. Despite the correction of legal principle in England and Wales, this paper reports on interviews with criminal justice practitioners in England working on cases of serious violence involving young people, who describe limited changes in prosecutorial practice. It shows that even without extensions, the framing of complicity liability by the police and prosecution lawyers continues to over-emphasise secondary parties’ contributions to the substantive offence, often based on policy and practice imperatives. In Australia this can be seen in the injustices that can arise in assumptions of guilt, which were highlighted in the successful mercy petition for Aboriginal defendant Zak Grieve known as ‘the man who wasn’t there’. We argue that the law of complicity, and its application, continues to disregard normative assessments of culpability and contradict fundamental principles of fair labelling and proportionate punishment. The paper concludes by emphasising the need for law reform in both England and Wales, and Australia, with associated meaningful change to prosecutorial practice, which recognises the continuum of culpability and ensures that the actions of individuals are fairly labelled and proportionately punished.
Dr Susie Hulley is a Senior Research Associate at the Institute of Criminology, University of Cambridge. Susie’s work has focused on the experiences of prisoners serving very long sentences from a young age (with Professor Ben Crewe and Dr Serena Wright) and understandings and experiences of ‘joint enterprise’ among practitioners and young people (with Dr Tara Young). Susie has co-authored a book entitled ‘Life Imprisonment from Young Adulthood: Adaptation, Identity and Time’ (Crewe, B., Hulley, S., and Wright, S. (2020), Palgrave) and a number of publications on the experiences of men and women convicted using the doctrine of joint enterprise.