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Using Joint Enterprise as a 'Deterrent' Is Obnoxious

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This week the Crown Prosecution Service, which is responsible for prosecuting crimes in England and Wales, announced that it would publish guidelines clarifying the law around joint enterprise. This is the common law doctrine, that has existed in English Law for hundreds of years, which allows those present at the scene of a crime to be prosecuted as if they had committed the crime themselves. The head of the CPS Kier Starmer suggested that the law was currently "too complex" and that the guidelines would include a new "threshold? meaning it may become harder to prosecute those only involved on the periphery of a crime.

The announcement follows numerous high profile cases over recent years in which the limits of joint enterprise have been tested: should a 16-year-old boy be charged with murder if he kicks a victim in the torso before the same victim dies from the injuries he sustains from another attacker stamping on his head? Should a young girl, as happened with 16-year-old Samantha Joseph in 2009, be charged with murder because she led another boy to his death at the hands of others?

These are difficult questions, but ones which juries have proved themselves capable of answering. In the trial of five young men for the murder of Nicholas Pearton in South London in 2010, the jury delivered guilty verdicts for murder, manslaughter and outright acquittals in relation to the same case. Mixed verdicts are common in cases like this because the prosecution has to prove to the jury that the defendant's intentions in carrying out a given act were the same, which is often very difficult. The jury is uniquely capable of drawing fine moral distinctions in these cases. This is why the question as to whether the law is too 'complex' is a misnomer.

Far more difficult to understand than the principle of joint enterprise are the attitudes that underpin much of the discussion around its application. Faced with the prospect that many young people may not be prosecuted for offences they were only peripherally involved in, many have begun cheerleading the idea that joint enterprise should be used as a 'deterrent' to gang activity.

Alan Beith, the chairman of the Commons justice select committee said joint enterprise "would help deter young people from getting involved in gangs", emphasising the doctrine had a role in prosecuting "gang activity in particular". New Labour MP Sadiq Khan welcomed "the evidence that joint enterprise can have a deterring effect on young people becoming involved in criminality". Sheldon Thomas, head of mentoring charity gangsline.co.uk said "it shouldn't be complicated, if you chose to join a gang then you go down with them". Mentoring? Really?

The idea that we should use murder law to deter our kids into behaving better is obnoxious. It represents a profound delegation of our responsibility as adults to provide young people with a meaningful alternative to crime. It encourages the heavy hand of the state to meddle in young people's lives which are often, especially if they are involved in anything resembling a 'gang', extremely complicated and fractious. At a time when we should be thinking hard about how to confront the lack of purpose and direction that many young people exhibit today, prison-hungry poshos like Thomas and Beith would rather lock them up as soon as possible.

Of course it is hard to be dispassionate about cases which carry such serious consequences. But it is vital that we maintain a clear idea about what the law, especially the criminal law, is and is not for. It is for punishing those who commit criminal offences. It is not a substitute for tackling the difficult social problems that these cases represent.

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