Dangerous Patterns: Joint Enterprise and the Culture of Criminal Law

On 5^th June 2021, a newspaper article reported on an appeal being brought by three people against their conviction for murder handed down in 2017 (Conn, 2021). The convictions were part of what has been termed the ‘Moss Side murder trials’ by the media, a couple of trials referring to a killing in Manchester in 2016. As stated in the article, ‘On 12 May 2016, 12 young Moss Side men, all black or mixed race, were in the area of Broadfield Park, known locally as “the Rec” (…)’ (ibid). This is a usual gathering spot, and the group there claimed to be only loosely affiliated. ‘The afternoon took a dreadful, violent turn when they saw Abdul Hafidah, 18, whom some said they feared and resented.’

The group started to chase him, going across the traffic on Princess Parkway, the dual carriageway that bisects Moss Side, which was filmed on CCTV and shown in court. Some of the teenagers joined the chase and did nothing further. Some assaulted Hafidah when they caught him, badly beating him. But when a woman on her way home from work, one of many witnesses, shouted at them to leave him alone, all ran off except two. Then one, Devonte Cantrill, 19, wielded a knife, and stabbed Hafidah, who later died from those knife wounds (ibid).

The prosecution charged all 12 men with homicide offences. The main ground for the prosecution appears to be that the defendants were involved in a joint enterprise, as they were part of a gang known as ‘Active Only’, or ‘AO’ (Judiciary, 2017). To prove intent to assist and encourage, the prosecution relied on a series of inferences that associated the group and the area of Moss Side with gang violence, sometimes as loose as bringing attention to historical narratives of gang activity in Moss Side during the 80s and 90s; but one of the most relevant connections was a rap video recorded in 2014 that included some of the defendants. This video clip, also called ‘AO,’ was recorded as part of an initiative led by Kemoy Walker, an award-winning youth worker, and funded by many organisations including Great Manchester Police. Walker, who stated in an interview to the newspaper that the video had nothing to do with any gang, was not called to testify at the trials. Out of twelve defendants, seven were convicted of murder and four of manslaughter. One of them—the oldest, whom the prosecution initially presented as the leader of the group—was acquitted. Three of the seven people convicted of murder appealed against their convictions in 2021, claiming that the prosecutorial strategy adopted in the trials was racist and discriminatory.

While a number of issues could be raised about these convictions, what is perhaps most perplexing is that they happened one year after the UK Supreme Court (UKSC) laid down a landmark decision in R v Jogee [2016] 8 UKSC that abolished the legal doctrine grounding similar convictions, that of ‘parasitic accessorial liability,’ or ‘PAL’. This doctrine has long been decried as problematic (See e.g. Simester, 2017; Krebs, 2020a), but the few years preceding the decision in Jogee saw PAL being increasingly challenged, especially with regards to its application in the area of ‘joint enterprise murder’ (Krebs, 2020b), in which several defendants can be held liable for a killing committed by one of them—and which has been shown to predominantly target young Black and minority ethnic men seemingly involved in gang-related violence (Williams and Clarke, 2016; Squires, 2016a). When the decision in Jogee abolished PAL, it was widely celebrated by lawyers, legal scholars, activists, and the media as ‘righting a wrong turn’ in legal history, presumably because most assumed that the abolition of PAL would lead to an end to, or at least to a significant reduction in joint enterprise murder charges and convictions. However, as the Moss Side trials exemplify, cases of joint enterprise continue to abound in English criminal law, and there is evidence that Jogee had ‘no discernible impact on the numbers of people prosecuted and convicted of serious violence’ as secondary parties (Mills et al., 2022). Why has the law changed, and yet everything else—including its main area of application—remained essentially the same?

This article contends that a concrete answer to this question necessitates an engagement with the cultural dimension of criminal law. To do so, it advances a conceptual framework grounded on an application of ‘culture’ as the basis for an analytical methodology. The aim of this framework is to conceptualise the criminal law as a cultural apparatus, one embedded in cultural structures and processes that are part of the broader (re)production of meanings, identities and affects in society. For this purpose, the paper relies primarily on two insights taken from cultural theory. First, it deploys a Gramscian conception of hegemony, further developed in the work of cultural scholars such as Stuart Hall (2019a, 2019b), that sees the cultural field as dynamic and conflictual, in which dominant and emerging perspectives struggle for and against the dominance of common sense. On this basis, the paper engages with criminal law scholarship that defines the main institutional role of criminal law as that of ‘securing civil order’ (see Farmer, 2016, 2020; Carvalho, 2017). Applying a cultural perspective to this notion, the article reconceptualises civil order as a hegemonic outlook which preserves and legitimates dominant social arrangements by associating them with civility, trust, and peace. Thus understood, the criminal law's function becomes that of maintaining and reinforcing the dominance of civil order, a task it primarily performs by setting and guarding the boundaries of civility by identifying and repressing criminal, uncivil behaviour and identities.

Second, the paper builds on Mary Douglas' (1992) discussion of conceptions of danger and patterns of blaming in contemporary societies, which critiques the common-sensical presumption that ‘modern’ evaluations of risk and blame are grounded on objective criteria. Deploying this inversion of the traditional anthropological gaze onto the criminal law, the article examines how the criminal law performs its boundary-maintenance (Durkheim, 1964; Smith, 2008) role, looking at how criminalisation is related to underlying danger formations which underpin patterns of blaming. The paper proposes that tracing danger formations and how they are reflected in and reinforced by legal decisions can provide the basis for a cultural reading of criminal laws.

The first section of the paper sets out the conceptual framework for a cultural examination of criminal law. The second section then deploys this framework to map and critically analyse the cultural structure of the law of joint enterprise (JE). It explores how the law in this area has been conditioned by a specific danger formation centred on the racialised and hostile construction of the image of the urban gang and the dangerousness of gangsters and explores how JE criminalisation relies on this formation and actively reinforces it, both symbolically and materially. The third section then endeavours an examination of the decision in Jogee. By investigating its cultural meaning, the paper argues that despite the decision's outward silence towards the broader social critique of JE and its strict focus on doctrinal issues regarding PAL, the main purpose of Jogee was precisely to secure JE criminalisation, and civil order more broadly, against this social critique. Instead of heeding the challenges raised against the context and effects of this area of criminalisation, Jogee ultimately reinforced its underlying common sense and thus allowed for its perpetuation, despite formally engendering significant legal reform.

The paper concludes by reflecting on what broader lessons can be taken from the enquiry pursued in the paper, and how these can contribute to a cultural understanding of criminal law, one that is attentive to the relation between law and social change—and to its limits.

Criminal law and Culture: Theoretical and Methodological Framework

As Raymond Williams famously stated, ‘culture is one of the two or three most complicated words in the English language’ (Williams, 1988: 87). Williams acknowledges ‘three broad active categories of usage’—culture as ‘a general process of intellectual, spiritual or aesthetic development;’ as ‘a particular way of life, whether of a people, period, a group, or humanity in general;’ and as ‘the works and practices of intellectual and especially artistic activity’ (ibid: 90). Also, depending on the usage of the term, culture tends to sometimes emphasise ‘material production’ (for instance, in anthropological scholarship), and sometimes ‘signifying or symbolic systems’ (as, he indicates, is usual in history and cultural studies) (ibid, emphasis added). However, Williams proposes that, rather than selecting or privileging one usage over others, ‘it is the range and overlap of meanings that is significant’ (ibid: 91). The value of culture as an analytical concept, then, lies in recognising the relations and interconnectedness between these different aspects of human activity and organisation—between values and habits, structural and institutional arrangements in society, and intellectual practices and modes of analysis, both in their material and symbolic manifestations.

To comprehensively examine the criminal law as a cultural apparatus, it is useful to link it with a concept of significant currency both in cultural theory and in socio-legal studies, that of hegemony. Having its main roots in the work of Gramsci (1992), hegemony refers to the idea of ‘predominance by consent’ (Hoare and Smith, 2005), in which the state and ruling groups maintain power and exercise leadership by means of a dominant or ‘common’ worldview which is maintained primarily via cultural processes and institutions. In other words, political power and authority rely on its ideological apparatus having a hegemonic character—that is, on it appearing intelligible, acceptable, and ideally ‘natural’ and desirable. For Stuart Hall, following Gramsci, this ideological dimension of power and authority has two elements. The first is a ‘philosophy,’ a ‘conception of the [social] world’ that gives it formal coherence (Hall, 2019b: 43). However, the values and ideas contained within this ‘official…imposition of the legitimate vision of the social world’ (Bourdieu, 1991: 239) only become effective when they ‘enter into, modify, and transform the practical, everyday consciousness’ of the population; Gramsci called this second element ‘common sense’ (Hall, 2019b: 43). Common sense is thus the implicit aspect of this ideological dimension of power and authority, which gives it a ‘feeling of obviousness and necessity’ (Bourdieu, 1991: 131).

But while common sense appears as the ‘already-formed and “taken for granted” terrain’ of cultural production, it is in reality ‘disjointed,’ it is ‘fragmentary and contradictory’ (Hall, 2019b: 44; see also Rosenfeld, 2014), and it is the main stage of ideological contestation. This is mainly because the social realm is home to a set of competing perspectives and distinct ways of life, including those which are longstanding and many others which are constantly emerging; that some appear natural and even necessary, while others are seen as strange, noxious and threatening, is primarily the reflection—and the purpose—of hegemony. Awareness of the fragmentary and contradictory character of common sense also urges us to resist a simplistic conception of hegemony which tends to see it as ‘a model of a static, dominant ideology unproblematically suffused throughout a society,’ and to rather conceive it ‘as an inherently unstable process of constantly shifting equilibria’ (Hall, 2019a: 104). Hegemony is thus best conceptualised as a struggle for the dominance of common sense, so that complex and often disparate social conditions can be naturalised and legitimised under the appearance of a common vision of the social world.

Therefore, while specific societies ‘tend to experience the particular ‘realities’ of our cultural world as fixed and unalterable, no more than simple reflections of the way the world is’ (Crehan, 2011: 277), this worldview is grounded on ‘an articulation of different processes or “modes of production,” that constitutes a set of relations, articulating different, often paradoxical “modes” that are governed by an overarching, dominant outlook or “formation” or “structure”‘ (Hall, 2019a: 172). In other words, a hegemonic outlook contains and conceals a complex array of different, contradictory structural factors and relations that need to be somehow reconciled and harmonised by the state's ideological apparatus if it hopes to remain hegemonic. The key to understanding the criminal law as a cultural apparatus performing a cultural function arguably lies in locating it within a specific hegemonic outlook, that of civil order, and examining the role it performs in that outlook's articulation.

The Cultural Structure of Joint Enterprise

‘Joint enterprise’ is an imprecise term with a range of meanings. More generally, it refers to different rules and strategies aimed at ‘holding co-defendants equally responsible for offences which appeared to evince a common purpose’ (Squires, 2016a: 937). For instance, if three people decide to rob a store together, they can all be convicted of robbery, even if only one of them actually went into the store and pointed a gun at the cashier (i.e. committed the principal offence), while the other two contributed to the crime in other forms (i.e. acted as accessories or accomplices to the principal offence), such as driving the car or looking out for the police. It is important to note that although the idea of common purpose has traditionally been taken to underpin the notion of a JE, scholars have pointed out that this term does not encapsulate the broad array of situations where a JE can be established in law. A more accepted alternative is the notion of causation, where someone can be deemed to take part in a JE when they make a substantial contribution to the criminal activity, even in the absence of a common purpose (see Krebs, 2010).

In this more general sense, JE is simply an instance of accomplice liability, rules which govern when someone can be held liable for assisting or encouraging a criminal offence. However, the most controversial doctrinal aspect of this area of law relates to instances in which a pre-existing joint enterprise can ground liability for a further offence. For instance, if, in the course or as the result of a joint enterprise, an unlawful killing occurred, all those participating in the joint enterprise can also be potentially liable for that further crime. Prior to Jogee, these instances used to be governed by the principle of parasitic accessorial liability, or PAL, laid down in Chan Wing-Siu [1985] AC 168 and best articulated in the decision in R v Powell and English [1997] UKHL 57, which stipulated that, in such cases, ‘it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm.’

JE is a particularly suitable object of cultural analysis, including because its most controversial aspect, PAL, long possessed an aura of exceptionality in legal scholarship. From a doctrinal perspective, this principle set a low threshold of culpability, which was particularly problematic in cases involving murder. This is because, for someone to be convicted of murder as a principal offender, it must be proven that the defendant killed with the intent to kill or with the intent to cause grievous bodily harm, intent being the ‘highest’ degree of culpability found in English law. But, at the same time as the definition of intent in the law of murder was becoming more stringent through development in case law, if the killing arose out of a JE, the requirement for culpability suddenly became much lower and more elusive. And although there were attempts to rationalise the scope of criminal liability under JE, some as recent as the Law Commission's idea of ‘normative difference’ in 2007 (Law Commission, 2007), the main reasoning grounding JE rules and decisions appeared to be its perceived usefulness in tackling gang activity and in prosecuting and convicting those considered dangerous for being identified (predominantly in racialised ways) as gang members. This is evidenced by one of the main judgments in the development of PAL, the often-cited R v Powell and English [1997] UKHL 57. There, the then House of Lords, perhaps in a rare moment of candidness, reinstated and defended the doctrine of JE by asserting that ‘rules of common law are not based solely on logic but relate to practical concerns and, in relation to the crimes committed in the course of joint enterprises, to the need to give effective protection to the public against criminals operating in gangs.’

This focus of JE on public protection against dangerous criminals can be seen as representative of a broader shift in criminal law and criminalisation, from a concern with developing and protecting principles of individual responsibility and justice to an increasing preoccupation with improving the criminal law's effectiveness as an instrument of crime control and harm prevention, through the development of forms of criminal responsibility grounded on notions of character, dangerousness and risk (Lacey, 2016). This shift did not sit comfortably with mainstream understandings within the liberal imaginary of criminal justice; nevertheless, JE clearly resonated with dominant cultural understandings around the social role of the criminal law and the perceived danger of gang violence, not least due to the breadth of its application. Although there are no official records regarding the use and ‘effectiveness’ of JE, an illustration can be provided by a report by the Bureau of Investigative Journalism in 2014 which found that, between 2005 and 2013, 4590 prosecutions for homicide involved two or more defendants (44% of all homicide prosecutions in that period), while 1853 people were prosecuted for homicide in a charge that involved four or more people, 17.7% of all homicide prosecutions in that period (McClenaghan et al., 2014). More recently, JE was the focus of a debate in the House of Commons, where it was estimated that at least 4500 people, including children, were incarcerated or detained on the basis of the doctrine, ‘serving long sentences for crimes that they did not commit’ (HC Deb, 2018).

Thus, despite its doctrinal controversies and sustained criticism, for decades JE murder persisted as a pervasive instrument of criminalisation. The ‘effectiveness’ and perceived utility of JE murder can arguably be traced to a danger formation underpinning this area of law, which grounds patterns of blaming structured around ‘a “common-sense,” racialized and stereotypical discourse that links BAME [Black, Asian, and Minority Ethnic] men with an involvement with gangs, drugs and violence’ (Williams and Clarke, 2016: 16).

Jogee and its Patterns

After a wave of substantial criticism targeted at the unfairness of JE criminalisation and particularly JE murder, the UKSC finally addressed the status of PAL in its decision in Jogee. In a detailed judgment, the court proposed to offer a comprehensive review of previous case law to ground its conclusion that the PAL principle could not be supported, as its introduction ‘was based on an incomplete, and in some respects erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments’ (R v Jogee [2016], para 79). The outcome of this decision was to formally declare that PAL was no longer good law; from then on, cases falling within the scope previously covered by this principle should be decided under the general rules and principles of accomplice liability. In essence, this meant that, from then on, for someone to be convicted of murder based on a further offence arising from a JE, this person would need to be found to have intended to assist or encourage the principal offender to commit the envisaged offence; foresight of violent acts committed by another, while held to be potential evidence of intention to assist or encourage, was no longer sufficient as a basis for culpability in and of itself.

This can be considered a significant doctrinal change, as intention represents the highest threshold of mens rea in English criminal law. Indeed, some have raised the question of whether the UKSC was well-placed to make it, or whether this constitutes a substantive piece of law reform that should have been reserved for Parliament (see Stark, 2016). However, in practical terms, this correction is not as significant as it might initially seem. Rules regarding intention and culpability in criminal law can be rather vague, and often counter-intuitive. This is the case even in the law of murder, where the rules of intention have been debated most comprehensively, and yet at least one form of intention, oblique intent, can be said to have no clear definition (see Norrie, 2018). Assessments of intention are usually reliant on discussions of what defendants knew or foresaw, something which Jogee explicitly recognised when it stated that JE cases are still likely to depend on foresight to determine culpability: ‘The error was to equate foresight with intent to assist, as a matter of law; the correct approach is to treat it as evidence of intent’ (R v Jogee [2016], para 87).

While this comment could be enough to muddy the waters in relation to the significance of the formal correction in Jogee, it is possible to imagine ways in which this could have been remedied; for instance, the decision could have stressed that, although foresight will remain relevant in evaluations of culpability, the shift in the law should be taken as an indication that the threshold of foresight necessary to amount to an intention is qualitatively higher or different, and that future decisions should take that in mind. However, given how Jogee stressed how foresight would still be one of the main avenues to establish intention, and how such intent can also be ‘conditional,’ it is clear that Jogee did not seek to substantially alter the threshold of culpability in JE cases (see Xin, 2021; Stark, 2017). In fact, quite the opposite. Another indication of this is that, when stating that previous convictions under PAL would not be overturned unless ‘substantial injustice’ could be demonstrated, the court took pains to clarify that such findings would be exceptional, for ‘The error identified, of equating foresight with intent to assist rather than treating the first as evidence of the second, is important as a matter of legal principle, but it does not follow that it will have been important on the facts of the outcome of the trial or to the safety of the conviction’ (R v Jogee [2016] at para 100, emphasis added).

This statement could be interpreted as a mere reiteration of legal principles regarding appeals based on a change of law; ² however, when read against the backdrop of the cultural context of JE criminalisation and challenges against its fairness, the downplaying of the practical effect of the doctrinal change introduced in Jogee can be seen as a significant effort to preserve the pattern of blaming underpinning this area of criminalisation. This interpretation resonates with Court of Appeal judgments dismissing appeals against JE convictions before Jogee. In Johnson and Others [2016] EWCA Crim 1613, the effect of Jogee on previous convictions has been further ‘tamed’ by the Court's willingness to rely on defendants’ foresight to find a conditional intention to assist or encourage the principal offence (see Stark, 2017). This not only undermines the significance of the correction in Jogee to previous convictions—where, so far, virtually all appeals have been dismissed ³ —but also to future cases. This understanding was confirmed by the Court of Appeal decision in R v Anwar and others [2016] EWCA Crim 551:

we find it difficult to foresee circumstances in which there might have been a case to answer under the law before Jogee but, because of the way in which the law is now articulated, there no longer is […]. [T]he same facts which would previously have been used to support the inference of mens rea before the decision in Jogee will equally be used now. What has changed is the articulation of the mens rea (…) (paras 20,22, emphasis added).

There is thus a significant ambivalence in Jogee, which reflects the ambivalence in criminal law between responsibility and dangerousness. The decision represents an effort to safeguard both notions: it sought to allay the critique that JE criminalisation broke with established principles of criminal responsibility, correcting the doctrinal discrepancy identified in PAL and thus bringing JE in line with general rules of accomplice liability and with the law of murder; simultaneously, however, it also sought to guarantee that JE criminalisation would preserve its utility as an instrument of public protection against the ‘danger’ of gangs. As a result, the pattern of blaming underpinning JE remained essentially intact: racialised, marginalised and socio-economically deprived individuals continue to be convicted of murder (Conn, 2021; Tobin, 2018; Mills et al., 2022) on the grounds of the same questionable policing and prosecutorial strategies. ⁴

This ambivalence found in Jogee can be seen as a symptom of the cultural function of criminal law: ultimately, the decision was striving to secure the civil order grounding JE criminalisation against its contemporary challenges. The problem is, the real challenge posed against JE criminalisation was targeted at structural and symbolic aspects of the hegemonic formation underpinning it; in other words, it was a challenge against that configuration of civil order. To properly address concerns around PAL and JE more broadly, it would be necessary to recognise the law's complicity with broader elements of material and symbolic injustice. Doing so is undeniably arduous and, it could be argued, beyond the remit of a court judgment. Nevertheless, this realisation is important as a matter of analysis, especially to understand the difficulties and limits of legal decision and reform in areas of cultural contestation.

Arguably, then, the decision in Jogee reflects the law's need to tackle the growing erosion of hegemony in an important area of criminalisation, coupled with an unwillingness, or perhaps incapacity, to address the deeper, substantial grounds of this erosion. The way in which the decision attempts to tackle this paradoxical aim is by deploying a specific narrative, in which the doctrinal ‘deviation’ in Chan Wing-Siu [1985] AC 168, later embodied in the PAL principle, is scapegoated as the sole source of the problems of JE criminalisation. Since the doctrine constitutes a deviation, ‘based on an incomplete, and in some respects erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments’ (R v Jogee [2016] UKSC 8, para 79), the solution becomes simple: to abolish PAL, which is itself presented as a matter of correction rather than reform. All the other issues—the outcome of previous convictions, the issue of how foresight is still the basis for finding intent and how foresight is constructed by means of racialised, discriminatory, exclusionary, structurally violent strategies—become incidental, beyond the remit.

The importance of understanding this positioning as a narrative is that it highlights how it is used to articulate the decision as common-sensical, and to (re)present it as effective, useful. However, even Jogee's basic tenet, that it was ‘righting a wrong turn’ in case law, can be questioned. As Findlay Stark (2016) has compellingly argued, a more comprehensive reading of JE case law can show that the principle set in Chan Wing-Siu and further elaborated in Powell and English simply elucidates and gives doctrinal form to established legal practice, thus presenting a (rather unusual) display of ‘intellectual honesty’ (ibid, 551). In cultural terms, this means that this case law managed to accurately, if unreflexively and uncritically, manifest its underlying pattern of blaming; this can especially be seen in the decision in Powell and English, which explicitly linked the utility of PAL to the need to protect the public against ‘criminals operating in gangs.’ From this perspective, the move in Jogee to abolish PAL was much more than simple ‘housekeeping,’ but rather a substantial act of legal reform. It was a deliberate attempt to safeguard a conception of civil order currently in crisis.

Furthermore, in being silent about the danger formation underpinning JE criminalisation and deliberately not engaging with its practical legal reflections—such as how culpability is constructed in these cases—the decision in Jogee displays an aspect of ‘cheating’ (Williams, 2013: 88), as it takes substantial steps to solve the problems afflicting this area of law, but does so without questioning or acknowledging their grounding and context. This feature can be explored through an engagement with Raymond Williams’ discussion of ‘magic’ as a narrative device in novels of the 1840s. Williams looked at how success, wealth and status were values at the core of the dominant social character of the time; however, these values were in deep tension with lived experiences of debt, disgrace, and dispossession, which alienated people from those ideals. One predominant artifice used to try and resolve this tension in novels of the period was to explore experiences of poverty, marginalisation and hardship as the main challenges faced by protagonists, only to then resolve these experiences by means of a ‘magical’ solution, such as the discovery of a ‘legacy’ such as an inheritance, or a sojourn into some part of the ‘Empire’, from which the protagonist would return rich and dignified. ‘This element of cheating marks one crucial point of difference between the social character and the actual structure of feeling’ (ibid: 88), because while the dominant culture can and must acknowledge to some extent the complexity of lived experience if it is to maintain its hegemony, it does so only superficially, and only to ultimately reaffirm its legitimacy and common sense.

The decision in Jogee can be said to possess an aspect of ‘magic’, in that it resorts to ‘a simpler way of resolving the conflict between ethic and experience than any radical questioning of the ethic’ (ibid: 89). The purpose of this narrative device is to provide an affective bridge between ethic and experience, one which can allow people to identify with the values promoted by the dominant culture. In the novels of the 1840s, readers could identify with the protagonists who (even if momentarily) shared some of their own burdens, and they could also dream of similarly achieving wealth and status; likewise, Jogee (again, momentarily) made many believe that the law had acknowledged some of its problems and recognised their toils, and they could dream of having their convictions quashed, or at least of no longer being targeted by a hostile and discriminatory instrument of criminalisation. In so doing, Jogee followed the dictates of criminal law's function of securing civil order, in the sense that it strived to protect an element of its hegemonic formation that is deeply embedded in contemporary structural arrangements: structurally violent conditions of racial and socio-economic marginalisation and exclusion.

However, although Jogee may have delayed a potential rupture in the dominant articulation underpinning this area of law, it has definitely not allayed its possibility, and its sleigh of hand may well prove to have been self-defeating. The initial enthusiasm with Jogee quickly died out and has been replaced with bitter disappointment (see e.g. Morrison, 2017) followed by renewed calls for legal reform (e.g. UK Parliament, 2018). It also further contributed to the feeling of confusion and disillusionment shared by many of those criminalised via JE murder (Crewe et al., 2015; Hulley et al., 2019) and those who advocate on their behalf, who experience Jogee as yet another manifestation of an unfair, and thus ultimately illegitimate, legal system.

Conclusion

This paper has set out a theoretical and methodological framework for a cultural analysis of the criminal law. At its core, it highlighted the need to understand the criminal law as part of society's broader material and symbolic complex, intimately linked to dominant structures, institutions, understandings, and sentiments in society. It has argued that this interpretive perspective can help us better understand criminal law's functioning, limits, and problems, by shedding light on its intrinsic relation to broader issues of social order and experience. As the case of joint enterprise hopefully illustrated, there is much to be gained from this approach.

At the heart of the analysis performed in this paper was the suggestion of a link between civility and hostility: civil order must be kept within boundaries, which must be preserved through hostile mechanisms such as criminalisation. Going forward, it will be essential to investigate how far this link between civility and hostility goes, and whether judicial legal reform can play a part in its decoupling. Could another, different Jogee be possible? Ultimately, changing the material and symbolic articulations underpinning social (civil or otherwise) order is a political matter; but there is an open question as to the extent to which developments in criminal law can break with, or at least transform, hegemonic formations.

A cultural understanding of criminal law highlights these concerns and seeks to map and uncover the hegemonic underpinnings of criminal law and criminalisation. Hopefully, sustained attention to these issues can in turn inform the establishment of a counter-hegemonic tendency in criminal legal scholarship—if not, perhaps, in the criminal law itself.