Significant Contribution Bill

Be it enacted...

1 Complicity

In section 8 (abettors in misdemeanors) of the Accessories and Abettors Act 1861, after “shall” insert “, by making a significant contribution to its commission,”

Background

According to the CPS, the doctrine of Joint Enterprise is “an aspect or form of secondary liability [which] can apply where two or more persons are involved in an offence or offences. A principal is one who carries out the substantive offence … and the secondary party is one who assists or encourages the principal to commit the substantive offence. However a secondary party can be prosecuted and punished as if he were a principal offender.”

In some situations, this is entirely reasonable. Most people would agree that an armed robber at a bank heist gone wrong, for example, can be deemed as culpable as their partner who actually shot the cashier, because they make a significant contribution to the crime by carrying or supplying a gun and threatening the cashier.

But the problem, according to many legal experts, is that Joint Enterprise is used in a much wider way, often convicting people who have made no significant contribution to a crime at all.

The key words from the CPS definition above are “assists or encourages” – but this phrase is the result of common law and is not found in legislation. Rather, the Accessories and Abettors Act 1861 only specifies that anyone who “shall aid, abet, counsel, or procure the commission” of an offence shall be punished as a principal offender.

This change in language has lowered the bar for prosecutions and convictions, with academics and campaigners warning that Joint Enterprise is often used as a dragnet by prosecutors to maximise convictions, especially of young urban racialised minorities.

Black people are 16 times more likely than white people to be prosecuted for homicide or attempted homicide under Joint Enterprise, according to data from a recent CPS pilot study carried out as a result of legal action by Liberty and campaign group JENGbA.

In 2016, the Supreme Court ruled in the case of R v Jogee that the law had taken a “wrong turn” for over 30 years. The court restored the proper law of intention so that those who intended to commit or assist a serious crime, rather than those who only might have foreseen it, could be properly convicted – a “moment of genuine legal history”, according to the BBC.

But research by the Centre for Crime and Justice Studies identifies that the judgment has had little to no effect on charges or convictions, and the Court of Appeal has decided that prisoners whose juries had only been directed to consider foresight, rather than intention, should not have a retrial.

And since 2016, there is a new legal problem where juries are deliberately not told to consider the contribution a person made to the crime, which risks convicting people who make no significant contribution. It has been used to convict young people seen fighting but not with the victim, young people who are not present at the scene, women who have no control over their boyfriends’ conduct and young people who listen to certain kinds of music, where trials focus on character and culture and not contribution to a crime.

What the Bill does

By clarifying that someone must make a “significant contribution” to an offence to be criminally liable, this simple one-line Bill would restore Parliament’s original meaning and correct a second wrong turn by the courts with respect to Joint Enterprise. It would ensure that persons who make no significant contribution to a crime are not convicted of being complicit in that crime.

This wouldn’t prevent the use of alternative charges in cases involving multiple accused persons, nor prevent the prosecution of multiple people for a crime in which they all played a significant contribution. And it wouldn’t help anyone already convicted under this doctrine (see Barry Sheerman’s Criminal Appeal (Amendment) Bill for one approach to tackling this) – but it would be an important step in preventing the unfair and unjust use of Joint Enterprise laws against innocent people.

Section 8 of the Accessories and Abettors Act 1861 currently reads: “Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender.”

Kim’s Bill would amend this to read: “Whosoever shall, by making a significant contribution to its commission, aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender.”

This addresses the recent decision in the case of Fiaz, where the Court of Appeal suggested that a jury need not be specifically directed by the judge to consider the legal significance of a defendant’s contribution towards an offence. Unfortunately, the Supreme Court declined to hear this case, so it falls to Parliament to enact safer legal frameworks.

Support needed

Leading up to the Second Reading debate on Friday 2 February 2024, Kim is running a major campaign to maximise support for her Bill, both inside and outside of Parliament. Trade unions and other progressive organisations are asked to help fund this, so it can produce high-quality materials and organise high-impact events that put real pressure on ministers.

Some unions, such as the Bakers, Food and Allied Workers Union, already have policy in place to challenge the injustices of joint enterprise, but we need support from across the labour movement – from local branches to national executives – to increase our chances of making this crucial legislative change. Please get in touch by emailing JointEnterpriseBill@gmail.com if you want to help.

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Significant Contribution Bill

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