Opinion: ‘As I got into the small print of joint enterprise it seemed I had wandered through the looking glass’
Like most of the UK population I had never heard of the law of joint enterprise until I met Andy Hall QC two years ago and we got talking about his client in the infamous Victoria Station trial.
It was a horrific case. Twenty teenagers were accused of murdering 15-year-old Sofyen Belamouadden who was viciously attacked and murdered in March 2010 in broad daylight at Victoria Station. It was clear there was indeed a joint enterprise that could have been foreseen to lead to murder. But one of the 20 in the dock, Hall’s client Jason Nwogbe, a promising A-level student, had no connection beyond being in the wrong place at the wrong time and being loosely associated with the wrong people (most of whom he didn’t know). He was in the station at the time of the attack and had run towards the drama, but soon retreated when he saw what was happening. He played no role in the attack at all and I was amazed that his case had made it past the police let alone the CPS. There was nothing that one would ordinarily associate with proper evidence against him. But under joint enterprise he could be charged with murder.
Curious to find out more about this law, I sought out Gloria Morrison, a woman I had heard about from one of the barristers in the Victoria Station case.
Morrison is engaging and tireless, a voluble and passionate campaigner and founding member of Joint Enterprise Not Guilty by Association (JENGbA). She eats and sleeps joint enterprise. We sat in her campaign headquarters – her kitchen – and she told me one story after another, showing me letters from prisoners. She told me about Laura Mitchell, Dean Pinnock, Wayne Collins and many others and put me in touch with their sisters and mothers. That was in the summer of 2012 when she had a pile of about 250 letters on her kitchen table – now JENGbA has over 400. Pressure from Morrison and others added to the impetus that resulted in the Justice Select Committee looking into joint enterprise. This led to a report in January 2012. She and others also encouraged screenwriter, Jimmy McGovern to write Common, a drama based on joint enterprise, for BBC1.
From there I searched for statistics – there were none. I was told it wasn’t possible to collect the data I was asking for through Freedom of Information. It would be too difficult. Cases weren’t logged according to whether they were joint enterprise or not. So there was no telling how many people might be serving prison sentences as a result of joint enterprise cases.
Related story: Data – Joint enterprise in numbers
I sat in on the Victoria Station trial a few times. One day as I was leaving the court, Hall was walking by in wig and gown, and Nwogbe, a shy, well turned out teenager, smiled and offered him a sweet. Shortly afterwards the jury found Nwogbe not guilty. By then he had spent 18 months waiting for the trial with a possible life sentence hanging over him and then several weeks in the dock before being acquitted. Had it not been for the law of joint enterprise, he would never have been in court. Had he not been expertly represented, and had the jury not been convinced of his innocence, he could now be serving a life sentence.
Joint enterprise has become an unwieldy behemoth. It is riven with anomaly and contradiction, as many of those quoted in the Bureau’s report say. The reasons for this are complicated. Inconsistent and changing formulations of the doctrine by judges in the highest courts show that it is really difficult to grasp, mutating and accruing nuances as it evolves through case law. It is also convenient politically. Gang violence and gun and knife crime are real problems, which result in tragedy and inspire fear in the public. Those responsible for law and order have to do something. Joint enterprise provides a rough, ready and powerful solution.
There were 17 convictions in the Victoria Station case, for murder, manslaughter other offences. Afterwards DCI John McFarlane, the senior investigating officer, said: ‘This case is an effective reminder that the law on joint enterprise is clear and unforgiving – you do not need to deliver the fatal blow or even be at the actual scene of the killing to be found guilty and sent to jail… I hope this case will act as a deterrent to others in the future to avoid getting themselves caught up in this type of situation.’
The idea of the law as deterrent to deal with gangs has been repeatedly bolstered through the courts. In the case of R v Powell & English in the House of Lords, Lord Mustill said that the law is determined by ‘practical and policy considerations’, and that ‘intellectually, there are many problems with the concept of a joint venture, but they do not detract from its general practical worth’. Lord Hutton stated: ‘There are practical considerations of weight and importance related to considerations of public policy … which prevail over considerations of strict logic.’ In the same case Lord Steyn said: ‘In the real world, proof of an intention sufficient for murder would be well nigh impossible in the vast majority of joint enterprise cases.’
In that real world, proof of guilt relies on proper evidence but as I got further into the small print of joint enterprise, sometimes it seemed I had wandered through the looking glass. Joint enterprise relies on foresight of what others might intend. It stretches common sense to assume that a person can predict the intentions of another, particularly when spontaneous acts of violence occur, and particularly if you are young and inexperienced.
Joint enterprise sweeps multiple defendants perceived of as threatening into court and subsequently to prison, the logic being the streets are then safer for the rest of us. Maybe they are. But joint enterprise is a blunt instrument that risks criminalising people who, by any ordinary reckoning of common sense, aren’t responsible for the specific acts of violence for which they end up convicted – or at least bear much less responsibility than those directly involved in the offences. This seems a disproportionate and crude response to ‘practical and policy considerations’, which should be addressed with more enlightened and subtle measures. One of the main concerns about joint enterprise is the relative ease with which it draws what the law calls secondary parties into its remit. These are people who have not taken a direct role in the offence. A group of friends, for example, could be out drinking. They get into a fight with another bunch. Someone is killed by one of the group. All the people in that group could be charged with murder on the basis that they must have realised that the person who killed the victim would intentionally use lethal violence, and by their presence gave the killer encouragement. They are all therefore part of a joint enterprise.
That’s how Laura Mitchell transmuted from a drunk girl with no criminal record who had been in a brawl in which nobody was seriously hurt, into a murderer who at the time of the killing was some distance away looking for her shoes. Because the law says she was party to the first fight, she is deemed to have been involved in the second which broke out a little time later.
Part of the anxiety informing those who question the fairness of joint enterprise is that these secondary parties may be people on the peripheries, caught up and dragged in as Nwogbe was. Under a less malleable law with a higher evidence bar, these defendants would, arguably, serve lesser sentences or be acquitted. Beatrice Krebs, who lectures in law at Reading University, refers to joint enterprise in an essay in The Modern Law Review (July 2010) as a lazy law, adding that it ‘unduly favours the prosecution and undercuts established principles of criminal law – at the cost of individual rights’.
The mandatory life sentence for all cases of murder, irrespective of the degree of culpability, is disproportionate. It means that the person who foresees that lethal violence might be used, and whose mere presence has been found to give encouragement, must be treated in the same way as the stabber or the shooter.
In 2007 the Law Commission report on secondary liability said it was ‘characterised by uncertainty and incoherence…’ and that ‘the doctrine of secondary liability has developed haphazardly and is permeated with uncertainty’.
Solicitor Greg Stewart, who has represented many joint enterprise clients, cites the danger of scooping up ‘tail-end Charlies, thrown in just to get a conviction’, something he calls a ‘tactical device’. Our research revealed that in multi-handed trials the Crown is less likely to get convictions. But in the process, those accused on evidence set at the low bar required under joint enterprise, like Jason Nwogbe and Ijah Lavelle Moore, spend months on remand living in dread of being given a life sentence.
As the Bureau team read though some 70 cases sent to JENGbA for research done by Dr Dennis Eady, a case consultant at Cardiff University’s Law School’s Innocence Project, we were horrified by the nature of many of the crimes but also struck by how many people claimed innocence of the crime for which they were convicted or wrongful sentences.
They fell roughly into four categories:
• Bystanders in the wrong place at the wrong time, unfortunate circumstances, caught in spontaneous conflict
• People with chaotic lives involved in small time drug dealing where rivalries turn vicious
• Young people in gangs, or groups depicted as gangs, in which fights and feuds result in violence
• People with criminal convictions
But as diverse as they were, men and women of all ages, teenagers, black, white – what they had in common was that they were from less privileged fringes of society.
Then you look at the news stories relating to their cases and most are spine chilling.
The accused stare menacingly out of police mug shots, which enhances the image of them as mindless thugs, before they’ve even gone on trial. But when you see family snaps of these defendants or meet them, they look like anyone else.
The prisoners who contact JENGbA have few champions despite the growing chorus of concern from senior legal figures about the law of joint enterprise. They are, as one barrister described them, perceived of as ‘unsympathetic characters’. A barrister who recently defended someone accused of joint enterprise spoke in court about the group of which his client was a member in less than complimentary terms. His point, in an ironic way, was that no matter the status of a defendant – layabout or not – everyone deserves justice.
How many are there like Mitchell, Nwogbe, Lavelle Moore, Pinnock et al, against whom proof is at best tenuous and at worst doubtful? Nobody knows. But we know more than we did since my first request for data was turned down two years ago.
The Bureau found out that 17.7% of all those prosecuted for homicide between 2005 and 2013 were involved in a case with four or more defendants.
In the years 2005 to 2013, the total number of people tried for homicides involving more than one person was 4,590. Of these 1,853 people were involved in cases with four or more defendants. The success rate for conviction was 73%.
This gives a snapshot of the large number of people convicted in murder trials under joint enterprise. How many of those locked up have disproportionate sentences, and how many would not be in jail at all were it not for the elasticity of joint enterprise? Had they been tried under the homicide laws, the evidence bar would have been higher for all secondary parties. Unless and until there is an in depth investigation into a sample of such cases, nobody will know.
The data is very troubling. Despite the growing concern about joint enterprise, there is little public or political will to address it because the people locked up are thought of as unsympathetic characters who deserve what they get. The Justice Select Committee recommended that joint enterprise be enshrined in statute but this has not happened so far.
Lord Falconer, former Lord Chancellor, summed up the political attitude and collective consciousness when he spoke on Radio 4 in 2010: ‘The message that the law is sending out is that we are very willing to see people convicted if they are a part of gang violence – and that violence ends in somebody’s death. Is it unfair? Well, what you’ve got to decide is not ‘does the system lead to people being wrongly convicted?’ I think the real question is do you want a law as draconian as our law is, which says juries can convict even if you are quite a peripheral member of the gang which killed? And I think broadly the view of reasonable people is that you probably do need a quite draconian law in that respect.’
Is Falconer implicitly justifying possible injustice in the name of the greater good? Is it really the view of ‘reasonable people’ that it is best to condone an evidence bar set at a level that allows peripheral members of a joint enterprise to slip under it in the name of deterrence? Our research demonstrates that this is a dangerous state of affairs. Justice must be impartial – be they an innocent bystander or someone with a criminal history – nobody should do time for a crime they did not commit.
