Written evidence from Joint Enterprise: Not Guilty by Association[1] (JEF 10)

Executive Summary

• JENGbA is now supporting nearly 500 prisoners including women and children who are mainly serving mandatory life sentences convicted using the joint enterprise doctrine mostly from working class and BEM backgrounds.  JENGbA wants to raise the point that the guidance clearly proves how complicated and heavily weighted it is in the prosecution’s favour. JENGbA believes this doctrine is hugely discriminatory and confusing not only to defendants and juries, but to a wide spectrum, including legal professionals, academics, and people working within the criminal justice system. We have found that when the doctrine is put to people, no matter their walk of life, they:

a) know nothing about the law and how it is currently being applied. 

b) find it abhorrent that people who have not actually committed murder are convicted to a life sentence for murder on such a low threshold of guilt. 

• JENGbA’s main concern is the lack of transparency by the Police and CPS in cases involving joint enterprise charging.  Our evidence will show that the DPP’s Guidance is not being robustly utilised by prosecutors if indeed they know it exists.  The Police certainly do not and they are continuing to charge groups with little or no evidence.  JENGbA is not looking for a scapegoat; joint enterprise is simply a very bad and lazy law, but the Police must be held accountable as it certainly appears that cases are being treated as vehicles to secure the convictions of as many people as possible, leading to the suspicion that the need to meet quotas and career progression is a motivating factor in the police's understanding of the law.  We will show how this is being carried out and why the DPP Guidance does not help.
• JENGbA’s own research (as part of this submission and reproduced below) carried out by Dr Dennis Eady of Cardiff Law School’s Pro Bono Unit  highlights various alarming factors including the fact that a large percentage of those responding to our questionnaire had no criminal background whatsoever yet are serving Life for murder.  They are also serving longer than the person who committed the crime. 
• JENGbA has concerns with the Law Commission’s Report 

There are also several other key areas which we urge you to discuss that do not come under the specific remit of the Justice Select Committee current review.  The growth in the prison population is overwhelming as a result of joint enterprise charging.  Introducing the Government’s new Serious Crime Bill the Justice Minister stated that  a ‘Change will make it clear that it is a crime to inflict cruelty which is likely to cause psychological suffering or injury on a child.”  Putting children in prison for crimes committed by another is doing exactly that and must be addressed. 

• Retrospective Reviews:

Regarding the Law Commission’s Reform JENGbA will suggest a proposal for reform based on recommendations of the Lord Chief Justice in 2007. However, paramount to any reform must be an urgent retrospective review of cases where people are innocent of the index offence.

JOINT ENTERPRISE: NOT GUILTY by Association (JENGbA)

We are a grassroots campaign made up of families whose loved ones have been convicted using joint enterprise and are not guilty of the offence for which they were charged.  We are very grateful to the Justice Select Committee that they are continuing to examine this worrying and illogical doctrine.   The majority of the people we represent come from working class and BME communities with no previous legal knowledge. However, campaigners have become very adept at understanding the complexities of Joint Enterprise and now spread the word.

By the time the JSC will have read this submission we presume some at least will have seen the latest Jimmy McGovern film ‘Common’.  A  BBC1 documentary entitled ‘Presumed Guilty’ will follow. Hopefully, it will go some way in creating mass awareness of how easy this doctrine can be manipulated to convict innocent people to a mandatory life sentence or a plea bargain to a lesser offences for fear of the mandatory sentencing, a practice rife in the USA where 90% of cases are plea bargained as defendants cannot afford good legal representation. 

As ordinary members of the public we believe when it comes to a crime as serious as murder the emphasis should be on providing strong, undisputable evidence, gathered by a thorough police investigation, followed by a robust trial process. The DPP Guidance reveals that we are a long way from what we, the public, expect. Overwhelmingly, members of the public that we speak to in our capacity as JENGbA campaigners, agree that Joint Enterprise is lazy, confusing and wrong.  No one wants a guilty person to elude punishment for a crime as heinous as murder, but the law on charging and sentencing should be very clear.  

The Crown Prosecution Service Guidance on joint enterprise charging decisions highlights the current ability to convict people on very tenuous evidence, with no element of intention needed. So they will have had little, if any, impact on prosecutorial policy. They do however, clarify the JENGbA campaign’s previous argument, which is, the concept of possible foresight is being used and abused to convict secondary parties where there is no other real evidence available. 

We wanted to find how convictions occur in spontaneous unplanned affrays, where there is no weaponry, and death occurs due to a single blow, so we wrote to the Justice Secretary Chris Grayling MP.  His response which he signed himself was, 

“To be clear, a joint enterprise does not require some sort of formal plan.   An agreement to commit an offence can arise on the spur of the moment.  It does not necessarily require anything being said; it could for example be made with a knowing look.”

JENGbA challenged this on the basis that a spontaneous act of violence cannot be based on the actions of another and a bizarre ‘knowing look’.  Mr Grayling’s advisor from the Criminal Law and Legal Policy Unit, Mr Robin Edwards, responded,

 “In your letter you suggested that this explanation of the law meant that innocent friends or associates of an offender may be liable to prosecution under this principle merely as a result of drinking in the same pub as him. If individuals are not part of the enterprise then they are not guilty under the law of joint enterprise.  Even if they knew or suspected their friend or acquaintance was involved in criminal activities, in the absence of any common purpose that would not be enough to implicate them in the offence.”

While Mr Edwards might believe this to be true it contradicts Grayling’s original response. Mr Edwards’ response is highly misleading, and Mr Grayling’s is illogical. We only need to look at the cases of Laura Mitchell/ Michael Hall and Stringer/Stringer (outlined in our previous submission to Justice Select Committee).  All had been drinking in a pub, none had DNA linking them to the murder, none had any plan or intention to commit murder, nor was the jury offered evidence of  Mr Grayling’s mysterious ‘knowing look’, yet all are serving Life sentences for murder.   

Three senior judges recently commented, “Open justice is both a fundamental principle of the common law and a means of ensuring public confidence in our legal system”.  They were discussing the attempt by Government to hold secret trials, but we argue the same is absolutely paramount with homicide charging and Joint Enterprise has no place in an open democracy where the Rule of Law is the bedrock of that society. 

We believe the problems we face today may have been initiated as far back as 1957 and the 1969 murder Acts. They allowed a murky interpretation of the joint enterprise doctrine to be used by the police and prosecutors in a way that was never intended. We can argue that both Acts were, in part, brought into effect due to the case of the mentally disabled teenager Derek Bentley, and the abolition of the felony murder rule and the death penalty.

 This was due to public outcry on the acute unfairness of the felony murder rule and disproportional sentence Bentley received, which was, of course, the death sentence carried out and many years later repealed, too late for Bentley and his devastated family. However, it needs to be accepted that joint enterprise clearly acts, by default, as a version of the felony murder rule, but in its worst form. And the mandatory life sentence now acts as a living death sentence.

A modern and equally sinister version of the Derek Bentley case can be seen in the case of Jordan Cunliffe, a 15 year old blind child who was convicted to a 12 year minimum life sentence for murder in 2008. The CPS used low grade CCTV footage prior to the affray in a bid to place Cunliffe in the vicinity of the scene on or around the time of the incident. Footage did not show the scene or the attack, so there is no solid evidence he was at the scene until after the attack took place. 

The violence was acknowledged to have lasted between 3 and 10 seconds with the pathologist insisting death occurred due to a single hard blow to the neck; the deceased had no other significant injuries. Cunliffe maintains he took no part in the violence and evidence strongly points to this being the case. 

Joint Enterprise places a lot of emphasis that presence alone amounts to encouragement of an affray. As the guidance stands today, what would have been Cunliffe’s alternatives? Was he supposed to disassociate himself from a fast-moving spontaneous attack that he could not see unfolding?   The case went to trial in 2007 and should be acknowledged as placing the route to conviction in a joint enterprise case on an all-time low. The case clearly opened even further an already open door to easy conviction, allowing not only those at the scene to be convicted but those who were absent from the scene.  In effect Cunliffe’s blindness left him absent from witnessing the affray yet he was still convicted.

The CPS are using two abhorrent legal technicalities to convict; mere presence coupled with the notion of possible foresight, but is this really enough to convict a person of murder? The guidance says it is. This poses problems because if you remain at the scene, the CPS guidance views this as encouragement.  If you run away this too is not a realistic choice as you have not served equivocal notice, however, it can be argued that serving equivocal notice implies that you have the foresight that really serious injury or death may occur, thus falling captive to the CPS guidance on possible foresight. 

What about those who have been convicted who are not present at the scene? There is no ability to show disassociation if you were not there to witness it unfolding, however, as evidence comes to light to prove a defendant’s absence from the scene, the controversial notion of possible foresight is an alternative solution for the Prosecution and they can and do change their approach mid trial. 

The fundamental difference rule also poses serious problems, and the guidance is contradictory, particularly in a spontaneous unplanned affray. If there was no joint enterprise in the first place, and no plan of a common intention, then a fundamental difference cannot be used as part of the defence case, thus resulting in a guilty verdict. This clearly points to the Prosecution having it all weighted heavily in their favour, leaving the jury with no option but to convict, leaving people at a loss as to why they were convicted, and with no opportunity of a successful appeal.

A clear example of this can be seen again with Jordan Cunliffe. This was a spontaneous act of violence with no weapons being used, so Cunliffe could never argue a defence against the joint venture. This is because he could not argue that the use of a weapon (as there was no weapon), went beyond the scope of their agreement, if indeed there can ever be an agreement in a spontaneous situation. However, if a knife had been used to commit murder, this too, for obvious reasons would elude Cunliffe, just as the fatal blow did, and Grayling’s possible “knowing look”.  

There are many past convictions that mirror the one of Jordan Cunliffe.  His is just one example of how previous convictions of this nature have allowed the prosecution to convict a secondary party when there is no joint enterprise as such. The term Joint Enterprise in itself is very misleading, and although various Senior serving Police Officers have gone public claiming it is a useful tool against criminal gangs, JENGbA cases prove otherwise.

After the consultation for the guidance, and prior to their release, JENGbA met the then DPP. He informed us that as a campaign we would not like the guidance and advised us that this was a matter for Parliament, and there was nothing he could do.  This did not stop us from arguing that the threshold test for children and the disabled needed to be significantly raised. The DPP, after listening to our serious concerns, in some way relented, adding a section to the guidance that indeed appeared to have raised the threshold test. At the time we believed this addition highlighted that many past cases involving children, particularly someone with a serious disability like Jordan Cunliffe, not only would have been protected by this higher threshold if it had previously existed, but would lead to the protection of other young or vulnerable people in the future.

JENGbA follows cases up and down the country and in the time since the guidance was published we have seen no marked change in the amount of children being taken to trial for joint enterprise murder. A recent case in Liverpool saw the conviction of a number of children as young as 13 years of age, with the trial outcome proving the youngest members of the group convicted were not the actual perpetrator. If the threshold test for children is being taken into account by Prosecutors, and we strongly do not believe it is, then we can only conclude that this particular case, amongst others, went under the radar or that the temptation to continue applying Joint Enterprise is too great for the Police and the CPS.

We still do not have accurate numbers from the YOI’s, as young people do not understand how they were convicted or what it is they can do about it. Prisoners who have contacted JENGbA from YOI’s have informed us that many are the children of immigrant parents whose first language is not English. The language barrier alone sets yet another barrier for many young people and their families, who are left with only one choice and that is to shut up and put up with an unfair life sentence.

We visit prisoners on a regular basis and it never ceases to amaze just how strong and hopeful these people are whilst carrying the daily burden of living with a life sentence for a murder they did not commit. Joint Enterprise and possible foresight are lifeless concepts that are being used to inflict a life of misery on one set of people by another set of people. The human misery this causes for so many cannot ever be described in words. Yet there appears to be an endless pot of money in supply to keep these people incarcerated in full knowledge that there is a serious indisputable issue with the law and there has been for many years.  Yet there is nothing to spare in money, time or resources to resolve the problem and give people back some semblance of a normal life. How can there be no money to prevent further convictions of this nature, yet more than enough money to continue with multi-handed trials, months on remand and unjust life sentences to those caught in the dragnet?

The average annual overall cost of a single adult prison place in England and Wales for the financial year 2011-12 was in the region of £37,648 (Jordan Cunliffe was held at Redbank in Warrington at the cost of £3,500 per week; after 7 months this totalled £98,000, so we know the cost of remand or a prison place for a child or young person costs considerably more).

This will have also increased by 2013-14 and JENGbA believes the average cost for a Joint Enterprise prisoner is probably higher due to the greater security used to maintain lifers.  There is also what we term “the top loading effect” that the committee may have spotted in our last Joint Enterprise statistics. Those convicted under Joint Enterprise tend to receive 5 years more than the general average. The average minimum term for lifers in 2012 was 16 years, (19% of all E & W prisoners in 2012 were lifers, and as we have gained new cases since the last inquiry it must be much higher now). 

As tariffs have increased this average will be much higher; add on the top loading effect that a Joint Enterprise case invokes and that leads us to believe the estimated average minimum term for JE lifers could be running at about 25 years.  At 2012 prices, that is a total, without any year-on-year inflation, of at least £941,200 per JE lifer for their custody. This does not take into account over-tariff years, licence supervision costs, rehabilitation costs, appeal costs, recall costs. We know of over 400 JE lifers, so we are talking about £22,480,800 per year at 2012 prices or potentially more than £562,020,000 for the existing JE lifer population for 25 years each. It is a big ask to expect an innocent person to serve a 25 year minimum life sentence for another person’s crime and an abomination to expect the decent honest taxpayers of this country to pay for it.

Our experience from speaking to the public has shown us that they do not feel comfortable paying for this and ask us if private prisons are making money from people being denied justice and liberty? JENGbA does not know the true cost of prison for those we are supporting, that is why we have shown rough estimates in the loosest terms. Nor can we tell the committee the cost in terms of human misery that Joint Enterprise has inflicted and continues to inflict, as no words could ever describe the horror and devastation.

On this basis of the issues raised we feel statute is not a way forward and suggest a revision and the amending of previous acts 1957/1969. The mandatory life sentence plays a major part in the injustice of joint enterprise.

JENGbA is aware there are some prisoners that clearly committed a crime along with the perpetrator, and evidence points to a very different crime; they too are aware of this, but a life sentence for murder does not warrant their criminal activity, especially in cases where no other imprison-able felony was committed and there was no element of intent to the actual murder on the part of the assailant let alone the secondary party. 

In many of the cases JENGbA holds we can argue that if there was no evidence of encouragement or assistance, and part of the defence in these cases disputes this clearly, then the charge and convictions must have been obtained using possible foresight.   

The campaign is gathering pace and sadly our numbers of prisoners are rising rapidly. We suspect our number will run into the 1000’s once the truth of joint enterprise charging is exposed.

Conclusion

It is very difficult to stress to the Justice Select Committee how flawed and damaging the application of joint enterprise has become.  The Police are adamant that it is an excellent way of tackling ‘gang’ culture; but this dragnet will undoubtedly scoop up the innocent and so Blackstones Ratio “It is better that ten guilty men walk free than have one innocent in prison” is reversed. 

However as we have previously stated the evidential bar in joint enterprise charging is so low it allows the police to pressure defendants into pleading to a lesser charge because the threat of joint enterprise murder is so easy to achieve.  This is fact; we are supporting cases where this has happened.  It is a sledgehammer to crack a nut. 

JENGbA is not looking for scapegoats.  Joint Enterprise is simply a bad law that allows bad policing. When we met with Andrew Mitchell MP we asked him if he never realised that the Police lie, and he genuinely didn’t.  We think we can safely say that the majority of families we are supporting thought the same, but now they distrust the Police intensely. Andrew Mitchell publicly said if the Police can do this to a Government Minister what about your ordinary Joe Bloggs. The JENGbA prisoners are those very Joe Bloggs.

We need not remind you of Orgreave (still ongoing trying to expose the Police Corruption) and Hillsborough (again ongoing trying to show Police Corruption).  When Police corruption was exposed in the 1990’s as a serious problem,

“They were failing to pick up the signs. They were failing to see there was corruption going on. There was a failure to supervise and a failure of leadership.  It’s not a scandal to have a corruption problem.  It’s a scandal not to recognise the problem…We had to break the cycle of corruption. It’s like doses of antibiotics to deal with the bacteria.  Unless you take the full dose, the bacteria get stronger.”

                                                        Deputy Assistant Commissioner Roy Clark

JENGbA welcomed Theresa May’s comments about the Police recently and believe it well overdue.  However JENGbA wrote to the Home Secretary alerting her to the abuse of Joint Enterprise by the Police. Her department’s response was the same as most,

“The Government believes that the use of joint enterprise is a particularly useful tool as part of our efforts to tackle gang violence and to ensure that all those involved in the commission of an offence can be brought to justice.  In the light of this the Home Office share the Justice Secretary’s view that no changes to the law in this area are required.”

We do not believe that the Police involved in our cases to be corrupt but if you allow bad laws to exist then they will be exploited by those in power, especially to the most powerless and marginalised communities. The press have also a lot to answer for in many of our cases and we believe an Inquiry should be held into the Press and their coverage of many of the joint enterprise cases, especially the News of the World.

JENGbA have also had many responses from MP’s and interestingly they often quote the Law Commission in their response to us, the very report that the then Government decided to ignore.  Lord Chief Justice of England and Wales Lord Phillips delivered this address in 2007 ‘Issues in Criminal Justice – Murder’,

“The law governing homicide in England and Wales is a rickety structure set upon shaky foundations.”  So said the Law Commission in the Report they issued in November last year proposing reform to the law of murder, manslaughter and infanticide.  Ten years ago Lord Mustill, in the course of a judgement, commented “the law of homicide is permeated by anomaly, fiction, misnomer and obsolete reasoning”. It is high time that it was reformed. Previous attempts have failed.  Will the Law Commission’s current attempt be any more successful?

I hope that it will, but I am not over-optimistic. The law of murder is a political hot potato and legislative slots tend to go to legislation that appears to have more practical implications. The merits of the reforms proposed are that they will rationalise this highly unsatisfactory area of our law, but it would not be right to think that they would have no practical benefits.  For a start they would reduce the frequency with which the House of Lords is troubled with appeals. They might also increase the proportion of cases disposed of by pleas of guilty rather than lengthy and expensive trials.”

JENGbA is a grassroots campaign, and not experts in law reform but if the highest judge in the land has stated reform is essential and he has also stated that joint enterprise will lead to miscarriages of justice, then the public deserve laws which can be understood. Lord Phillips went on to say “The Law Commission has approached reform with the aim of making the law more rational and clearer”.  JENGbA welcomed the Justice Select Committee’s last enquiry, which lead to the DPP drawing up Guidance on Joint Enterprise, although it is interesting that it took nearly a year to do so.   However the Guidance is a long way from making the law more rational and clearer, in fact we believe it totally vindicates our position that this doctrine is so confusing it is not fit for purpose.

Lord Phillips also highlighted an area of deep concern for JENGbA

“Sentencing is a major topic, and it is much too late in the day to embark on it.  Let me simply say that I have reservations about the current guidelines. The gap between 15year starting point and the thirty year starting point is immense.  It is the difference between a determinate sentence of thirty years and one of sixty years.  If sentences are to be just, then the effect of mitigating and aggravating factors should be very significant, so that sentences fill the spectrum between those two starting points. I am not sure in practice they do, and I believe that the starting points are having the effect of ratcheting up sentences in a manner that will be regretted many years hence.”

It is simply not acceptable in any just society that people who have not actually committed the index offence are giving the equal sentence as those who have. Please remember people do not even need to be at the scene to be charged with joint enterprise.  JENGbA recently followed a case in Nottingham where Justice Royce told the Prosecutor that he had to ‘prove’ what it was the actual defendants had ‘done’ and the prosecutor’s response was ‘not in a joint enterprise’.

JENGbA does have concerns that the Law Commission’s Report is flawed in that they used research that suggested people were more likely to commit homicide if in groups; this is not true homicide is mainly committed one on one and in the home.

Recommendations

JENGbA urges the Justice Select Committee to recommend a Full Enquiry into all of the cases that have contacted us.  It is simply tragic that the UK Justice System has been heralded as one of the best in the world, but when an antiquated legal doctrine like Joint Enterprise is used it erodes this belief.  The Felony Murder Rule abolition in 1957 came from public outcry and from the growing response we are receiving to our campaign the same will be demanded of joint enterprise.  We have submitted several FOIs asking when Joint Enterprise charging was reintroduced and by whom (nearly all our cases are from the late 90’s and peak in 00) but the information has not been forthcoming.

We were told by Alex Marshall the CEO of the College of Policing that if the DPP issued Guidance in any area of Law then they would also consider issuing guidance for their officers.  We do not believe this has been done on joint enterprise charging and it might go some way to stop wrongful charging and young people’s lives being destroyed by being put on remand. 

In the interests of Justice we would recommend that any person who has been charged with joint enterprise and not guilty of the index offence has their case reviewed by a panel of legal and fair experts, like Lord Phillips, to investigate whether the sentence they are serving fits the ‘crime’ they are said to have committed.

June 2014