The Wolf Packs in Our Midst and Other Products of Criminal Joint Enterprise Prosecutions

DOI10.1177/0022018315597816
Date01 August 2015
Published date01 August 2015
Subject MatterArticles
Article
The Wolf Packs in Our Midst
and Other Products of
Criminal Joint Enterprise
Prosecutions
Andrew Green and Claire McGourlay
School of Law, The University of Sheffield, Bartolome
´House, Sheffield, UK
Abstract
Changes in the law on secondary participationin joint criminal enterprises since 1985 have been
drivenby a judicial policy aiming to countera perceived threat to socialorder from criminal groups.
This article arguesthat these changes enableprosecutions to succeed throughthe use of tenuous
forms of evidenceand epistemologically unjustifiedinferences which juries are permitted to draw
from such evidence, a combination which effectively lowers the standard of proof.The lowering
of the standardof proof has two effects.First, it makes it easierand cheaper for policeinvestigators
to construct prosecution cases, and secondly, it is likely to result in injustice. Many claims have
been made that it doesindeed have the latter effect. The policeview the joint enterprise doctrine
as a useful tool, and other parts of the criminal justice system are willing to collaborate with the
developmentand refinement of the tool. This articleexplores the reasons why supportis given to
a development which requires such a drastic change in accepted legal standards. The Law
Commission justifies these changes by its adoption of a theory that an individual who joins a
groupengaged in criminal activitychanges her or his normativeposition to that of thegroup, and so
may be held responsible for any crimes committed by any member of the group. However, the
theory is unsupportedby empirical research. Rather it is grounded in the findings of courtstrying
cases in whichthe joint enterprise doctrineis applied, and has itsorigins in theories which assignto
criminal courts the responsibility to identify certain groups as enemies of society. Its application
produces the populist characterisation of casual groups of young people as ‘wolf packs’.
Keywords
Joint enterprise doctrine, wolf pack, normative position, gang, miscarriage of justice, evidence,
inference, standard of proof, inferential structure, law commission, policing
Corresponding author:
Andrew Green, School of Law, The University of Sheffield, Bartolome
´House, Winter St, Sheffield, S3 7ND, UK.
E-mail: Andrew.green@sheffield.ac.uk
The Journal of Criminal Law
2015, Vol. 79(4) 280–297
ªThe Author(s) 2015
Reprints and permissions:
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DOI: 10.1177/0022018315597816
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Introduction
In this article we argue that the doctrine of joint criminal enterprise is driven by a policy which is pre-
sented as a response to the alleged existence of bands of feral youth acting as wolf packs which cause
violence in public places, yet it is the application of the policy itself which produces the evidence of the
existence of such wolf packs as well as the concept of the wolf pack; and that because the implementa-
tion of the policy entails the reduction of the standards of evidence and proof necessary for criminal con-
victions in cases in which the doctrine is applied, some defendants alleged to be wolf pack members are
convicted of serious crimes of which they are actually innocent, even by the reduced standards of proof
required for the application of the doctrine.
The legal doctrine of joint enterprise holds that all participants in a criminal enterprise are equally
responsible for any crime committed by any other member of the enterprise within the scope of the enter-
prise. Joint criminal enterprises may be reduced to two types: those in which all participants agree on
their common purpose and carry it out, and those in which the criminal actions of one or more, but not
all participants exceed the original purpose of the association. Only the latter type are under consider-
ation here, ‘the only type of case where the doctrine has any legal effect ...
1
Pace many of the learned commentators on this doctrine, it is modern law with ancient but largely
irrelevant precedents. One long established element of the doctrine, called ‘parity of culpability’ by the
Law Commission,
2
is that secondary participants ‘shall be liable to be tried, indicted, and punished as a
principal offender’. Although the concept is taken from s. 8 of the Accessories and Abettors Act 1861, to
be found guilty of a crime as a secondary participant in a joint criminal enterprise, acts of aiding or abet-
ting need not be proved: it is enough to have been associated with the enterprise, and so by that fact alone
to have offered encouragement to the principal, even if the encouragement went unnoticed by the latter,
or if the secondary participant was opposed to the crime committed by the principal being carried out.
For secondary participants, ‘the wrong is in the agreement or confederacy.’
3
This part of the doctrine, which permits defendants to be convicted of serious crimes committed by
others only on evidence that they foresaw what the actual perpetrators might do, rather than on evidence
of their own intent to commit a crime, is unique in English law,
4
and consequently gives rise to confusion
amongst both lay people and practitioners. In 2007 the Law Commission published Participating in
Crime, a report on secondary liability in criminal offences, which states that the law on secondary par-
ticipation is ‘characterised by uncertainty and incoherence’, quotes several authorities in support of this
view, and outlines the problems the Commission perceives.
5
The Justice Committee of the House of
Commons described the ‘lack of clarity over the common law doctrine on joint enterprise’ as ‘unaccep-
table for such an important aspect of the criminal law’.
6
In this article we argue that the law is straight-
forward: perceptions of incoherence arise from the inconsistency between the reassurance given in trials
that the normal standard of proof applies, and the actual lowering of the standard of proof in practice in
joint enterprise prosecutions, and hence the inconsistencies that appear between the investigations and
prosecution cases in joint enterprise trials and in other, conventional criminal trials.
1. A. Ashworth and J. Horder, Principles of Criminal Law, 7th edn (Oxford University Press: Oxford, 2013) 437; see also
B. Krebs, ‘Joint Criminal Enterprise’ (2010) 73(4) MLR 578 at 604.
2. Law Commission, Participating in Crime, Law Com. No. 305, CM7084 (2007) at para. 1.5.
3. A.P. Simester, J.R. Spencer, G.R. Sullivan and G.J. Virgo, Criminal Law: Simester and Sullivan’s Criminal Law, 4th edn (Hart
Publishing: Oxford, 2010) 247. we disagree with Professor Virgo, who argues that such association ‘falls within general
accessorial liability’, because a defendant may be held to be a secondary participant without being an accessory to a crime
committed by a principal: G.J. Virgo, ‘Joint Enterprise Liability is Dead: Long Live Accessorial Liability’ (2012) 11 Crim LR
850–870.
4. Krebs, above n. 1 at 604.
5. Law Commission, above n. 2, paras 1.5–1.27.
6. House of Commons Justice Committee, Joint Enterprise, 11th Report, Session 2011–2012 (2012) at para 36.
Green and McGourlay 281

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