Henrique Carvalho may be a legal scholar, however the presentation that he gave last week suggested that he was perhaps more interested in conceiving the law as a socio-political phenomenon. His specific emphasis was placed on criminal law’s ‘ambivalence’ – the often contradictory nature and exercise of law – which he showed with the example of joint enterprise.

A recording can be found here

Joint enterprise is a legal doctrine that allows a group of individuals to be jointly prosecuted and potentially punished for the same offence, regardless of which one of them actually committed the crime in question. This presentation was illustrative of his wider work as Assistant Professor at the School of Law, University of Warwick, and particularly his recent book, The Preventive Turn in Criminal Law. In this publication, he explores the nature of criminal law in the context of the preventive state and its part in the risk-oriented world.  He highlights the way in which criminal law hinges on two key functions: delivering justice and providing security, the relationship between which is complex, with security often being reliant on a perpetuation of insecurity for which justice must be sought.  He suggests that this negotiation of criminal law’s dynamics towards the subject shows the ambivalence of criminal law.  In other words, criminal law is torn between promoting individual autonomy and justice and perpetuating the conditions of structural violence and inequality that ensure its continued purpose.

The doctrine of joint enterprise lends itself well to illustrating this ambivalence and shows the way in which criminal law relies upon a ‘suitable enemy’, to use Nils Christie’s phrase, to fulfil its reassurance function in society, that is to say, to reassure the public of maintenance of ‘civil order’ through the use of criminal law. In order to reassure, however, the law relies upon identification of and then estrangement of the ‘dangerous other’, thus positing the state’s responsibility in combating dangerousness (along with the individual’s responsibility for not appearing to be dangerous or a risk).

Joint enterprise has been referred to as a ‘dragnet’ – a prosecutorial tool that enables collective punishment of groups that are considered to have ‘been in it’ together. What is particularly problematic with the use of joint enterprise is that, though it can be used to prosecute all forms of offence, it is predominantly associated with homicide prosecutions and, since murder carries mandatory life sentencing, it can mean that a number of people receive the same life sentence for simply being associated with the individual who committed the offence, or were in the vicinity – even if, as the saying goes, they did not pull the trigger.  This disproportionate and, arguably, over-punitive response to criminal offences by association has been criticised by activists, law practitioners and academics as lacking legitimacy. Likewise, joint enterprise has been criticised for effectively criminalising young men of, in a large number of cases, ethnic minority backgrounds. The work of Patrick Williams, for example, highlights the nexus between ethnicity and gang control in the UK, suggesting that ‘gang’ terminology and control are highly racialised and so, when gang rhetoric is used in conjunction with joint enterprise as a way of assessing criminal association and liability, the figure of the minority ethnic young man becomes seen as dangerous and potentially lethal. The symbolism around gang membership and its association to lethal violence has meant that dangerousness of individuals has been prioritised over legitimacy, thus allowing prosecution and punishment of people who were not directly involved in the criminal act.

Where Carvalho’s analysis comes in to play is in relation to a specific Supreme Court decision in R v Jogee [2016]. In this case, the Court ruled that the scope of the joint enterprise legislation was indeed, as many activists have claimed, too wide, too unprincipled, and to be abolished. Yet, except for Jogee’s retrial and reconviction (for a lesser offense of manslaughter), there have been no further successful appeals for joint enterprise decisions to be overturned (one other appeal has been allowed by the Court of Appeal and has been sent back for retrial, however the verdict is yet unknown). With these two conflicting facts – that joint enterprise should be abolished, and the unsuccessful attempts at overturning sentences – comes a clear signal of the ambivalence of law. Criminal law is, on the one hand proclaiming it is protecting people from danger, while at the same time professing to hold people responsible for their actions, even if their ‘actions’ involve little more than being nearby while an acquaintance carried out an offence – thus supporting Carvalho’s claim that dangerousness has been emphasized over responsibility.

This ambivalence suggests that the law is not a neutral apparatus, but rather, is politically and socially motivated.  Carvalho refers to hostility towards certain groups (in this case, towards gang members) as driving a troubling form of social solidarity. This sense of solidarity is itself exclusionary, and underpins the reassuring function of the legal apparatus.  Henrique Carvalho’s reasoning and analysis of the problematic doctrine of joint enterprise was thought-provoking and brought to attention the benefits of bringing legal inquiry into the study of punishment, inequality and society.  No matter how much some of us may want to shy away, it is therefore vital for criminologists to engage with criminal law in order to better understand punishment in society.

Elizabeth Kullmann is a DPhil candidate with the Centre for Criminology.