Silence, joint enterprise and the legal trap
| Author | Susie Hulley,Tara Young |
| DOI | http://doi.org/10.1177/1748895821991622 |
| Published date | 01 November 2022 |
| Date | 01 November 2022 |
| Subject Matter | Articles |
https://doi.org/10.1177/1748895821991622
Criminology & Criminal Justice
2022, Vol. 22(5) 714 –732
© The Author(s) 2021
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DOI: 10.1177/1748895821991622
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Silence, joint enterprise
and the legal trap
Susie Hulley
University of Cambridge, UK
Tara Young
University of Kent, UK
Abstract
The so-called ‘wall of silence’ presents a threat to successful police investigations and criminal
trials. Explanations for it have focused on cultural narratives, including distrust in the police, a
‘no snitching’ culture and manipulative ‘professional criminals’. Drawing on a study of serious
multi-handed violence and ‘joint enterprise’ as a legal response, this article highlights the role of
the law, and its agents, in generating silence among young suspects, whose primary concern is the
legal risks of talking. Yet, these young people face a precarious trap, as their silence is interpreted
as guilt by the police, propelling them towards charge. This article concludes that to avoid over-
charging and to encourage young people with knowledge of serious violence to talk, structural
change is needed. The system must reverse the legal rules regarding silence and reform the law
on secondary liability to reduce the legal risks of talking.
Keywords
Joint enterprise, legal risks of talking, wall of silence, young people
Introduction
Newspaper headlines, such as ‘Murder hunt’s “wall of silence”’ in the United
Kingdom (The Telegraph, 2005) and ‘A Cloak of Silence after South Bronx Killing’ i n
the United States (New York Times, 2016), are illustrative of an internationally rec-
ognised problem – that police investigations into serious violence are thwarted by the
‘wall of silence’ or a refusal of individuals, en masse, to talk to the police (Brookman
et al., 2018; Wellford and Cronin, 2000; Westmarland, 2013). Explanations for the
Corresponding author:
Susie Hulley, Institute of Criminology, University of Cambridge, Sidgwick Avenue, Cambridge, CB3 9DA, UK.
Email: sh563@cam.ac.uk
991622CRJ0010.1177/1748895821991622Criminology & Criminal JusticeHulley and Young
research-article2021
Article
Hulley and Young 715
so-called wall of silence have been rooted in cultural narratives, specifically a ‘no
snitching’ culture in the United States (Woldoff and Weiss, 2010) or no ‘grassing’ in
the United Kingdom (Evans et al., 1996, cited in Clampet-Lundquist et al., 2015:
268)1 and ‘professional criminals’ using their ‘right to silence’ to thwart investiga-
tions (Owusu-Bempah, 2018).
Reporting on interviews with young people and criminal justice practitioners, under-
taken for a study of serious multi-handed violence and ‘joint enterprise’ as a legal
response,2 this article demonstrates that cultural narratives are offered by young people
who experience violence as victims or witnesses to explain their non-engagement with
police. However, for young suspects drawn into police investigations into serious vio-
lence as secondary parties, a key structural explanation dominates, as silence is primarily
generated by concerns about the legal risks of talking in the context of joint enterprise – a
legal doctrine that enables multiple individuals to be convicted for a single offence.
Therefore, joint enterprise (and its application in practice) ensnares young people in a
precarious trap: drawing them into an investigation and persuading them to remain silent
(due to the legal risks of talking) – yet this propels them towards charge, as their silence
is interpreted as guilt by the police. This scenario presents a particularly significant threat
for those drawn into investigations into fatal violence, as it can result in a life-changing
and identity-shattering conviction of murder and decades in prison (Crewe et al., 2020).
We conclude by arguing that, to avoid over-charging of young people on the periphery of
violence and discourage silence among those with real knowledge of serious violence,
the system must reverse the adverse inference placed on silence and reduce the risks of
talking by reforming the law on secondary liability.
The problem of silence, cultural explanations and
responses
Silence is part of speech: ‘it is a form of social interaction imbued with meaning and emo-
tions conveyed within social context’ (Hallsworth and Young, 2008: 134). In the context
of police investigations, silence is viewed suspiciously as a sign of guilty knowledge. As
such, it represents a significant barrier to establishing the full facts of the case, and iden-
tifying and eliminating potential suspects (Royal Commission on Criminal Justice, 1993;
Wellford and Cronin, 2000). The ‘wall of silence’ is a metaphorical barrier that prevents
people with assumed knowledge of an incident, en masse, from passing information to the
police. The explanations for such behaviour have predominantly been cultural – blamed
on distrust of the police and a ‘no-snitching’ culture among particular groups.
Distrust has been associated with individuals’ direct negative experiences of the
police, including police harassment and the overuse of force (Brunson, 2007; Downing
and Copeland, 2015; Rosenfeld et al., 2003). As stated by one respondent in Rosenfeld
et al.’s (2003) study, ‘[Mistreatment] deters you from . . . wanting to do any type of busi-
ness with [the police]’ (p. 297). For Black people, in particular, research suggests that
non-engagement with the police is the result of multiple personal and vicarious experi-
ences of discriminatory police practice (see, for example, Bowling and Phillips, 2007),
which generate distrust (Brunson, 2007; Downing and Copeland, 2015).3
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