A ‘good job’ in difficult conditions: Detectives’ reflections, decisions and discriminations in the context of ‘joint enterprise’
| Date | 01 August 2020 |
| Author | Gary Pritchard,Tara Young,Susie Hulley |
| DOI | 10.1177/1362480620907592 |
| Published date | 01 August 2020 |
| Subject Matter | Part II: Raceing Ahead |
907592TCR0010.1177/1362480620907592Theoretical CriminologyYoung et al.
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Article
Theoretical Criminology
2020, Vol. 24(3) 461 –481
A ‘good job’ in difficult
© The Author(s) 2020
conditions: Detectives’
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reflections, decisions and
https://doi.org/10.1177/1362480620907592
DOI: 10.1177/1362480620907592
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discriminations in the
context of ‘joint enterprise’
Tara Young
University of Kent at Canterbury, UK
Susie Hulley
Cambridge University, UK
Gary Pritchard
Cambridge University, UK
Abstract
‘Joint enterprise’ is described as a ‘dragnet’ that draws disproportionate numbers
of black and minority ethnic young men into the criminal justice system in England
and Wales. While stereotyping by the police and prosecution has been blamed for
this distributive injustice, empirical research on joint enterprise is limited. This article
presents the findings from a study of homicide and ‘gang’ detectives in London in
which they rebut accusations of racial stereotyping when investigating multi-handed
crimes. Instead, they claim that the disproportionality reflects the involvement of larger
numbers of primarily black men in violent crime. Using Margaret Archer’s social realist
theory, detectives frame their actions as being driven by their ‘ultimate concerns’ to
do a good job of protecting the public and obtaining justice for victims within the
difficult social and cultural context in which they operate. However, in this article,
we expose the racialized notions of risk in detectives’ narratives and argue that such
‘colour-blind racism’ is likely to contribute to young black and mixed-race men being
Corresponding author:
Tara Young, School of Social Policy, Sociology and Social Research, University of Kent at Canterbury, Room
G3-11, Gillingham Building, Medway, Chatham ME4 4AG, UK.
Email: t.l.young@kent.ac.uk
462
Theoretical Criminology 24(3)
overrepresented in cases that draw on the principles of joint enterprise dragging those
on the periphery of group violence into the criminal justice net.
Keywords
discrimination, (in)justice, joint enterprise, policing, social realism
Introduction
Joint enterprise is the term used to describe a complex set of legal principles in English
and Welsh law that allows more than one individual to be convicted of a single crimi-
nal offence. For example, a person can be prosecuted for a crime committed by another
if it can be proven that they ‘intended to assist or encourage’ the principal offender in
the substantive offence (this is the principle of secondary liability) (Crown Prosecution
Service, 2018). Joint enterprise allows the criminal justice net to be cast widely captur-
ing individuals who do not perpetrate the substantive offence. For example, multiple
individuals have been charged and convicted with homicide, despite some not being
present at the scene (see R v Walters and others [2017] and R v Wright and others
[2017]).1
As a legal doctrine, joint enterprise has come under a significant amount of criticism
from practitioners, academics, grassroots campaigners and those convicted of ‘joint
enterprise murder’ (Hulley et al., 2019). In particular, this critique has focused on the
apparent disproportionate application of the doctrine in cases of serious violence involv-
ing black and minority ethnic young men (BAME) (Crewe et al., 2014; Hulley et al.,
2019; Williams and Clarke, 2016), which in part has been blamed on racial stereotyping
by the police (Williams and Clarke, 2016). While research highlighting discriminatory
attitudes and actions among police officers towards BAME groups is well established
(Bowling and Phillips, 2007; Hall et al., 1978), to date, no research has been undertaken
of police investigations that draw on the principles of joint enterprise. In this article, we
provide a nuanced analysis of the work of police detectives in this context to explore the
ways in which their investigative practices may contribute to the disproportionate impact
of joint enterprise on black and mixed-race men.
Using empirical data from interviews with police detectives, conducted as part of a
study of multi-handed serious violence among young people, we report on officers’ rebut-
tals of accusations of racial stereotyping. Drawing on Archer’s (2003, 2010, 2012) social
realist theory, we explore how detectives explain disproportionality by reflecting on their
attempts to achieve their ‘ultimate concerns’ in the ‘difficult’ structural and cultural condi-
tions that they face. Specifically, we highlight detectives’ claims that they are attempting
to ‘protect the public’ from the risk of violence, in the context of rising levels of serious
violence driven by group offending, which they argue disproportionately involves black
men as perpetrators. However, we also show that entrenched in their discussions are
racialized notions of risk, supported by a ‘gang’ narrative, which provides a clear and
consistent narrative to frame multi-handed violence as primarily involving black men.
Rather pessimistically, we predict that, given this construction of multi-handed violence,
the observed disproportionality is likely to continue—due to the ‘contextual continuity’
Young et al.
463
(Archer, 2012: 19) detectives report—unless there is a shift in their perceived patterns of
serious violence or changes to the application of joint enterprise are asserted more consist-
ently than they have been to date.
Joint enterprise and disproportionality
The legal doctrine of ‘joint enterprise’ allows parties to a crime to be held equally
accountable if the crime is considered to have been committed as part of a collective
action. While no data are systematically collected on the extent to which joint enterprise
is applied in practice, figures published by the Crown Prosecution Service (2019) over
two years (2012–2013) showed that, on average, around 130 cases of homicide involved
multiple individuals per year, with around 3.5 defendants per case. During this period
there were on average 504 homicides per year (ONS, 2019), suggesting that multi-
handed cases represented over a quarter of all homicide incidents. The Bureau of
Investigative Journalism (2014) estimated that during this time and in the years before
(between 2006 and 2014), nearly 2000 people were prosecuted for homicide using the
principles of joint enterprise.
Since these figures were collected there has been a change to the doctrine. In R v
Jogee and Ruddock [2016] UKSC 8, the Supreme Court ruled that the law had taken a
‘wrong turn’ by misinterpreting the doctrine for more than 30 years. Prior to 2016, the
standard of proof required to convict a secondary party was ‘foresight’, so that to be
convicted of the substantive offence the secondary party must have foreseen the possibil-
ity that the principal offender ‘might act as he did’ (R v Jogee and Ruddock [2016] UKSC
8). Therefore, the threshold for guilt was lower for the secondary party than for the prin-
cipal party who, to be found guilty of murder, would have had to ‘intend’ to cause serious
harm or death. Under these terms, joint enterprise was branded a ‘lazy law’ (Krebs,
2010), as it allowed the police and prosecution to focus on proving association between
the parties involved rather than culpability for the offence itself (Green and McGourlay,
2015). In R v Jogee the route to conviction using the principle of foresight was abolished.
While foresight alone is no longer sufficient to convict a secondary party of the principal
offence, secondary parties can still be convicted of the principal offence if they ‘inten-
tionally assist or encourage’ the principal offender to commit the criminal act, and fore-
sight can still be used as evidence of ‘intention to encourage or assist’. Despite the
changes in the law, criticisms of joint enterprise continue, focusing on the legal legiti-
macy (i.e. the fairness of the law itself) (Hulley et al., 2019) and, particularly, the dis-
tributive injustice of the doctrine.2
While few research studies exist, those that have been conducted indicate a dispropor-
tionate number of BAME men are serving prison sentences for offences using the joint
enterprise doctrine. In a study of prisoners serving long life-sentences (received when
they were young), three times as many ‘joint enterprise prisoners’ were black/black
British or mixed race, compared to the general prison population; and 11 times as many
prisoners were black/black British compared to the general population of England and
Wales (Crewe et al., 2014). Similarly, a survey of men convicted under the principles of
joint enterprise found that over half (53.1%) self-identified as belonging to a BAME
group (compared to 45.6% white) (Williams and Clarke, 2016). Significantly, BAME
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prisoners were more likely than their white counterparts to report that the term ‘gang’—
or ‘gang-associated’ ‘cues and signifiers’ (e.g. street names)—was evoked by the prose-
cution during their trial (Williams and Clarke, 2016: 15).3 This led Williams and Clarke
(2016: 3) to conclude that the disproportionate application of joint enterprise principles
to cases involving BAME men was the result of ‘racialized stereotypes that [. . .] under-
pin contemporary policing and prosecution strategies’.
Theorizing the structural and cultural context of detective
work
Detective work is a case-focused...
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