Attorney General written question – answered on 12th July 2022.
To ask the Attorney General, whether the Crown Prosecution Service has taken steps to (a) revise its guidance on joint enterprise and (b) consider its approach to gang prosecutions.
The CPS publishes guidance on various matters relating to its criminal prosecutions, which is available for the public to view on the CPS website. CPS guidance is reviewed and updated periodically, especially when there is a significant change in law or policy.
(a) The CPS has published guidance on the application of the joint enterprise doctrine since 2012. The 2012 guidance, titled Joint Enterprise charging decisions: Principal, secondary and inchoate liability, was published following a public consultation.
The guidance was revised in 2018, to reflect a significant change in the law brought about by the Supreme Court’s decision in R v Jogee. The revisions were informed by another public consultation and the title of the guidance was changed to Secondary Liability: charging decisions on principals and accessories, to reflect the terminology used by the Court.
The guidance was revised further in 2019, following a stakeholder consultation. The main revision related to guidance in respect of children and persons with learning disabilities, autism and mental health issues.
(b) The CPS guidance ‘Decision making in ‘gang’ related offences' is regularly reviewed and was last updated in November 2021. The guidance urges caution about the use of the word ‘gang’, explaining how it can properly be deployed in a prosecution, where substantiated by the evidence and relevant to a matter in issue in the proceedings. In drafting the guidance, the CPS assessed the potential effect of using ‘gang’ in proceedings and identified that the term is used in legislation and by criminal justice partners.
The guidance clearly sets out that, given the negative connotations of the term ‘gang’, prosecutors should not refer to a group as a ‘gang’ in proceedings unless there is evidence to support the assertion. However, prosecutors must also ensure that where there is admissible evidence of gang membership, the case is put on a basis that reflects the often very serious gravity of the offending.
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