 Mae'r ddisgwyl cyfrifio ddweud o'r ddweud ymwrdd yn dweud yn y mediw hwnnw gweithio'r ddweud. Mae'r ddweud wedi ddweud, rhai o'r drwng, o'r ddweud ymwrdd, ac o'r ddweud yn ei ddweud o'r ddweud, o'r ddweud, o'r ddweud. Ond ydy mae'r ddweud sy'n ddweud o'r ddweud, oherwydd o'r ddweud yn y cyfrifio'r ddweud.wr bod mae'n gwneud hynny o'r ddelwodau, i wneud yn amlwg y peth gynnol i gyllideb gyda'r myndrêu. Rydym yn iawn o'r modd o warn gyn ymlaenydd iawn i ymwyaf o'r myndrannu a oedd ddweud yn ei wneud ei wneud yn gwlad i'r myndrannu i â ymddangosol, ond mae'r byw yn ni o'r myndrannu i'r myndrannu i'r byw, nid yw'r syniadau ddim yn gwneud hynny, mae'n amlwg mwyfynol iawn gan gyfhaithu. yn oed i ddweud y pryddwyr, yw'n gangylchedd yn cyhoedd o'r rhannu yma, ond byddwn yn ei ffr功, yn cyhoedd gynprunol, ac nid yw ddechrau oherwydd. Dwi'n credu gallwn ni yn dweud hynny mae'r ffordd oherwydd sy'n mynd i chi. Llyrdoedd amddangos oELL yn gwneud. Roedd y gallwn yn ei bynnag tÙl gael ac mae hynny'n gael gael y cilydd i unrhyw i amddangos is guilty of murder, but other people who may just be present, may just have an idea of what might be happening, are convicted of murder as well. Is that fair? And that's really what I want to examine in this presentation. Really my concern is what the law says about joint enterprise, to try and assist in the debate about what we should be doing in this very difficult murky area of the law. So let me start with one very important point. There is no law of joint enterprise. There's no statute that says this is what joint enterprise is. Joint enterprise is just a phrase that is used by judges sometimes, by prosecutors, but particularly by the media to describe a very complex area of the law. You can't actually say specifically what joint enterprise is. It's just a tag that's attached to a wide variety of different circumstances. And I think that's one of the main reasons this area of the law is so controversial. We don't really know what we're talking about. Actually, when you start looking at those contexts where joint enterprise language is used, you can identify three distinct situations. So let me just identify what those situations are. The first is where you have two people perhaps with a common purpose who intend to commit the same crime at the same time. So to give a very simple example, you may have two people who want to kill the same victim. They both have knives and they both stab the victim at the same time, and that victim dies from both of those wounds. Now in that case, they are both murderers. Both those defendants who stabbed the victim are murderers. We would call them principal offenders. They have both contributed to the victim's death with an intention to do so. Now we could say, and sometimes the courts do say, they were acting under a joint enterprise or a common purpose, but that really adds nothing. They are both murderers and I don't consider that to be at all controversial. The second situation of joint enterprise is where one person, let's say, commits murder as a principal offender, but somebody else either assists or encourages that murder. In those circumstances, the person who is the assister or the encourager may be guilty of murder as well, but only if we can prove that they did assist or encourage the murder, that they intended to do the act of assisting or encouraging. And, and this is where it does get rather complicated, they either intended the murder to take place, they knew the murder would take place, or they foresaw that the murder might take place. In the easy cases, conviction of the assister or the encourager is straightforward. Let me give you a couple of examples. If one person supplies a gun to the principal, intending that the principal will use that gun to commit murder, and he does use it to commit murder, then the accessory, the assister, should be convicted of a serious crime as well. That assister is clearly associated with the murder. Similarly, if somebody actually encourages the murderer to commit murder, tells them why don't you kill that person, or is present cheering on the murderer, then they are sufficiently associated with that murder as well, and so they should be convicted of murder. But what if the person who is alleged to assist or encourage is much further away from the commission of the crime? They haven't actually provided the weapon. They haven't actually said, go on, commit murder. Well then, it's much more difficult to justify convicting the accessory of murder. And here there's a very important point to stress that's often forgotten, particularly in the media coverage of these sorts of cases. Just because you are present at the scene of a crime, it doesn't follow that you are associated with that crime. If, for example, a fight is taking place, and I just stand by watching that fight, not saying anything, not doing anything, I am not associated with that fight in any way. So if the fight results in the death of one of the fighters, I'm not an accessory to the murder that has taken place. It will be different if I turn up knowing that there's going to be a fight, and want by my presence to encourage that fight. That's different, because then I'm associated with the fight. But mere presence by itself is not sufficient. Now there's one other point to emphasise about this form of joint enterprise liability, what we would call general accessory liability, where you assist or encourage the crime. There will be some cases where the prosecution simply cannot prove who committed the murder. If the victim was stabbed to death, it may not be possible to prove who was present and had the knife with the intention to kill. But it might exceptionally be possible to prove that one person had the knife and intended to kill, and the other people, all the other people who were present, intended to assist or encourage the murder. In those circumstances it is appropriate to convict all of them of murder, even though we don't know who was the actual person who committed the murder, because we know that all of those present were associated in some way. But whilst that's acceptable in the easy case, this idea that everybody who is present is equally guilty does cause problems in more complex cases, and if you can't be sure that one person was sufficiently associated, then none of them should be convicted. For this principle to apply, we need to be able to establish that everybody present was guilty of the crime, either because they did have the knife and stabbed the victim, or if not, they were sufficiently associated with it. And if there is doubt about one person who's been charged as being associated with the crime, that they weren't sufficiently associated, then they should all be acquitted. Now the third situation where the language of joint enterprises used is slightly different. This is a situation where, for example, two people agree to commit one crime. Let's say they agree to commit a burglary. And in the course of the burglary, one of them takes out a knife, let's say, and stabs the victim, the occupant of the house, to death. That person is a principle to murder, will be convicted of murder, and that's not controversial. But English law says that the other person who didn't kill the victim may be convicted of murder even though they didn't assist or encourage the murder if they foresaw murder being committed as a possibility. Now that's controversial, but that means if you go along as a burglar to commit a burglary, and you think the person who you're going along with to commit this burglary might have a weapon, and you know that they have a type of personality where they might use violence, and they do commit murder, then as long as you foresee murder being committed as a possibility, then you will be convicted of murder as well. And in all of these cases, if you are convicted of murder, the sentence that is imposed is the mandatory life sentence. Now it is the case that judges are able to identify a minimum term that should be served in prison even where there's a mandatory life sentence. But they have very clear guidance, statutory guidance, as to the starting point for the minimum term by reference to so-called tariffs. Now quite often this is dependent on the age of the defendant and on the circumstances in which the killing took place. But in many of the cases that we're looking at which concern so-called joint enterprise liability, the minimum starting point might be something like 20 years, and the judge may have very little room for manoeuvre to bring that minimum tariff down. So it follows that the person who actually kills the victim, the actual murderer, will get the mandatory life sentence with a minimum term of say 20 years, and the accessory or the person who went along as a burglar for seeing that murder might be committed will also get the same minimum term. So that's the state of law on joint enterprise liability. Just to summarise, there is no rule about joint enterprise liability. There are just three different scenarios. The first one I think is uncontroversial where there are two principles who commit murder. Both are murderers. Both have caused the death with an intention either to kill or to cause serious injury. They satisfy the definition of murder and it's right to treat them as murderers. Secondly, there is the principle who commits murder and the accessory who assists or encourages that murder, either intending, knowing or believing or foreseeing that murder might occur. They are regarded as sufficiently associated with the murder to be convicted of murder as well and they get the mandatory life sentence. And thirdly, there is this third situation which actually the judges call parasitical accessorial liability where the liability is based upon a common purpose to commit one crime, where the principle departs from that common purpose, from that joint enterprise to commit a different crime, most controversially in the context of murder. And if the party who didn't commit murder but went along to commit a common purpose crime but foresaw that murder might be committed, they would be convicted of murder as well. Even though they didn't cause death, even though they didn't intend to kill or to cause serious injury, they are treated as murderers and they get the mandatory life sentence. So that's the state of the law. Is it satisfactory? Well at the core of the law, I think we can justify conviction in each of these three cases where we have two principles that are both guilty of murder. Where somebody assists or encourages murder by giving the weapon or saying to the principle go and commit murder, they are sufficiently associated. And sometimes perhaps it may be appropriate to justify convicting a burglar of murderer when somebody else commits murder because you shouldn't go along on the joint enterprise where there's a common purpose for seeing that murder might occur. But there are problems with this area of the law and let me just identify some of the problems as I see it. First, we treat the accessory in exactly the same way as the murderer. Formerly they are convicted of murder in these joint enterprise scenarios and I think that sends out the wrong message in the law to the judge and to the jury in terms of assessing the liability of these accessories. We should be looking at their responsibility in their own right. Each person's responsibility should be considered separately. So I think there is a problem in using the language of joint enterprise. I think that gives this idea that everybody can be treated in the same way. That might support a police and prosecution policy that anybody who is present at the scene of the crime should be prosecuted and should be treated as though they were a murderer. And I think as a matter of principle and criminal theory that way of thinking is difficult to justify. A second problem with the law is the difficulty in stating what the law is. I have just tried to summarise the law as I see it. In fact, I've skirted over some of the controversies in the law. For example, I have said it's sufficient that the accessory foresees that murder might be committed. But what is it that the accessory needs to foresee? Do they just need to foresee death or even serious injury? Or do they need to foresee that the principle, the murderer, will actually kill or cause serious injury with an intention to do so? There are confusing and contradictory cases. Some saying it's enough to foresee the harm. And others saying you need to foresee both the harm and that the principle will have the relevant intention. That shows this is an area of the law that is unacceptable in its complexity and confusion. Because despite what I've tried to do, we cannot be absolutely sure as to what the state of the law is. A third problem with the law does concern prosecution policy as to whether it is appropriate, particularly in the context of gang crime and knife crime, for prosecutors to prosecute everybody who was present at the scene of the crime. Now, we have in 2012 received some CPS, Crown Prosecution Service Guidelines, on prosecution policy in these joint enterprise scenarios. It's too early really to determine whether this policy has had any dramatic effect yet. And actually, the Justice Select Committee is at the moment considering that policy to see whether it has had an appropriate impact. I think we'll just have to wait and see whether there is evidence forthcoming, which suggests that prosecution policy has changed. If it hasn't, I think we need to focus again on prosecution policy in these cases and maybe have much clearer guidance to ensure that we don't prosecute people just because they were present at the scene of a crime, particularly at the scene of a murder. More should be required before they can be considered in terms of prosecution to be associated with the crime. A final problem with the law in this area concerns sentencing. The fact when we are dealing with joint enterprise murder, as it's often called, the party who is the accessory who is regarded as associated is convicted of murder and gets the mandatory life sentence with very high minimum tariffs is a serious cause of concern. We have people in prison serving sentences for 20 years and more who did not actually kill, who didn't cause death, who didn't intend to cause death and serious injury. In some cases, the murderer receives a lower minimum sentence, often because of their age. That I find difficult to justify. So finally, what can we do to reform the law in this area? I think it's quite clear from what I've been saying that I do have serious concerns about the state of the law concerning so-called joint enterprise liability. I want to emphasise that concern is not about the core liability. It's not a concern about the principle who commits murder and it's not actually really a concern about the person who directly assists or encourages the murder, although some of the reforms I'm going to suggest will have an impact in those cases. My real concern is with the people who are the periphery, who are brought in to the prosecution, whose responsibility on any view is no way near as significant as that as the principle who commits murder. They at the moment are being treated as murderers in their own right. So what should we do? One reform which is not a legal reform is a reform concerning prosecution policy. I think that does need to be considered much more carefully by the Crown Prosecution Service. Secondly, I have serious concerns about the imposition of the mandatory life sentence for murder, at least as regards accessory liability. We could change the law to abolish the mandatory life sentence for murder. That I know is politically controversial. Another reform, which I think is much less controversial, is to actually recognise a new form of murder to be called secondary liability murder or murder in the secondary degree. That would be the appropriate murder to be charged in all cases of accessory liability to murder and a consequence would be the mandatory life sentence would not be imposed. Now some people would want reform there to go even further and to say if you are going to be convicted of being associated with a murder where you didn't actually commit murder yourself, the language of murder is inappropriate, the language of manslaughter should be used. That I have a lot of sympathy with but I think second degree murder recognising that which will require statutory reform is arguably more politically acceptable. And a final reform, and I admit this is even more controversial, is to reconsider the mental element to be liable as an accessory, whether you're an assister or an encourager or you've agreed to have a common purpose to commit one crime and the principle departs from that to commit another crime. As the law stands, you will be an accessory if you foresaw the commission of the crime or probably foresaw the crime in terms of the harm and that the principle intended either to kill or to cause serious injury. I think the time has come where we need to change the mental element or the fault element to be an accessory and I think we should move away from saying it is enough for the accessory to foresee that the crime might be committed and instead to require proof that the accessory either intended, new or believed that the crime would be committed. Mere foresight is not sufficient to establish responsibility. Now I know that that would be a fairly radical reform but that would certainly dramatically reduce the cases which are a cause for concern at the moment where people who are only on the periphery of the crime are regarded as associated with the murder and are treated as murderers in their own right. So I've suggested a variety of reforms that we could adopt in this area. In fact I think adoption of only one of them would dramatically affect the problems in this area involving accessory liability in what is colloquially called joint enterprise liability. We may say this isn't a cause for concern. If you are present at the scene of the crime, a murder took place particularly if you are a member of a gang or associated with a group of people who were involved in criminal behaviour then we shouldn't be concerned that you are convicted as well. We don't like criminals. We should treat criminals in exactly the same way regardless of their responsibility. But my view is the criminal justice system is more important than that has a more principled approach to the law which does have regard to degrees of responsibility. We need to reflect those degrees of responsibility in the law to differentiate between the principle who is the murderer and the accessories who were associated with the murder and also the degrees of association. And we have to accept that we reach a point where somebody is so far away in their involvement from the commission of the murder that they should not be regarded as associated with that crime at all. At the moment in this area of the law I think we have a criminal injustice system and this is an area of the law where reform is required to ensure that we return to a criminal justice system.