Tuesday, 1 March 2011


What is left of the "Just" in "Justice"

By Sandra Lean, from insidetime issue March 2011

The prosecution and conviction of Jordan Towers leaves author and researcher Sandra Lean questioning, what is left of the “just” in “Justice?”

What is left of the Jordan Towers was 16 years old when, along with two others, he was convicted of murder. The basis for the conviction was Joint Enterprise doctrine, the central tenet of which is that persons believed to have participated in, or in some way to have contributed to, or to have anticipated the likelihood of the act of murder are, themselves, guilty of the crime of murder. What is wide open, however, is any secure definition of “participated in” “contributed to” or “anticipated the likelihood of.”

In Jordan’s case, there was no direct evidence of any of the above, other than that Jordan was with two other youths when a man was stabbed to death. The trial Judge, Recorder David Hodson, clearly stated that it was common ground that Jordan took no part in the killing. There was no evidence that Jordan inflicted any harm whatsoever on the victim. The two other youths blamed each other.

The murder was the result of a spontaneous eruption of violence – there was no evidence of a planned attack, none of any gang-related issues- nothing, in fact, which could possibly be used to suggest that Jordan could have, or should have, anticipated the events which unfolded that night.

The one piece of “evidence” which was used in court was that Jordan threw a rock to the ground. He did so after the fatal wound had been inflicted, it did not strike the victim (nor was it intended to,) and was thrown when Jordan was, according to the evidence of witnesses at the scene, standing some way off from the victim and the other youths. In what way does the throwing of a rock, well away from the victim, after the fatal blow has been inflicted, demonstrate participation in, anticipation of, or contribution to the act of murder? Common sense tells us it does not. But we are not discussing common sense, we are discussing the law, and in particular, the application of Joint Enterprise principles in serious criminal cases.

How did Jordan Towers come to be convicted of the crime of murder? The Human Rights Act, at Article 6, provides that: Everyone charged with a criminal offence has the following minimum rights:
(a). to be informed promptly, in a language which he or she understands, and in detail, of the nature and cause of the allegation against him.
(b). to have adequate time and facilities for the preparation of his defence.
(c). to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.

Two issues arise here. Was Jordan Towers informed, in a language he understood, and in detail, the nature and cause of the allegations against him? It would seem not. Jordan was not charged with “joint enterprise,” he was charged with murder. Had the charge been simply murder, without the need for basing it in Joint Enterprise doctrine, then it could not have stood – all of the evidence, as agreed by the judge himself, proved that Jordan took no part in the murder. The nature of the allegation against him was that he somehow participated in a murder which all of the evidence showed he did not. But was that ever explained to Jordan in detail, or in a language he understood?

Clearly not. Jordan was 16 years old, and wholly dependent on his legal representatives to advise him, and this is where the second issue arises – was Jordan Towers able to be properly defended by the legal representatives engaged to do so?

One of the other co-accused was represented by the same firm of solicitors which was defending Jordan, creating an immediate and clear conflict of interests. Since the two other co-accuseds were blaming each other, and Jordan was blaming both, it is clear that Jordan’s testimony could have been extremely damaging to the defence of both co-accuseds. Jordan was advised by his legal representatives not to give evidence in his own defence, in what can only be seen as a calculated move to protect the interests of the co-accused being represented by the same firm.

Previous advice given to Jordan appears to have also been grounded, to a large degree, in concerns for the possible consequences for another client – for example, he was advised only to speak about himself in police interview (presumably to avoid him saying anything which may incriminate another.) The consequence of this, clearly, is that Jordan was not able to adequately defend himself, by providing information about what the others had done that night.

At trial, the co-accused being represented by the same firm made several allegations about Jordan. For obvious reasons, defence counsel could not address these allegations on Jordan’s behalf, without seriously undermining the interests of their other client. The impact, therefore, of Jordan being advised not to give evidence, was compounded.

An application to the CCRC explored these issues in depth. Extensive submissions covering the failings of the legal representation, and in particular, the impact of a clear conflict of interest, were made. Further submissions, relating to the detail of charges under Joint Enterprise were also made, namely that of the three tenets of Joint Enterprise – knowledge, participation and intent – only one, participation, was addressed in Jordan’s defence, therefore a full and proper defence was not before the jury.

The CCRC refused to refer the case back to the Court of Appeal, on the basis that Jordan, himself, made the decision not to give evidence in his own defence, that the CCRC did not consider that there was any real possibility that the Court of Appeal would be persuaded that any deficiencies in the standard of defence Jordan received affected the fairness of his trial, or therefore, impacted upon the safety of the conviction, and that assumptions had been drawn that Jordan would have been a credible witness.

The first of these is patently ridiculous. Jordan was 16 years old, facing a charge of murder. He could not possibly have known what was the “right” thing for him to do, and was entirely dependent on the legal team to make those decisions on his behalf. The law in the UK deems that 16 year old children are not mature enough, and do not have enough life experience, to make informed decisions as to whether they should smoke cigarettes or drink alcohol, or which political party they should vote for in an election. To suggest that they are mature and experienced enough to know what is in their best interests when facing something as serious as a murder charge defies logic.

The last of these appears to have missed the point entirely. Had Jordan been properly advised, his accounts in police interview would arguably have been more coherent, more reliable, and more credible. It was the advice of the solicitors themselves which led to Jordan being unable to tell the police properly his experience of events that night, not because it was not in his own best interests to do so, but because it was in someone else’s best interests for him not to do so. Jordan could not have known that by acting on advice designed to maintain the best interests of another, he would be damaging his own best interests.

But it is the “real possibility” test, as highlighted here, which appears to have hog-tied the decision making powers or possibilities of the CCRC. The Commission’s conclusion is that it “did not consider that there was any real possibility that the Court of Appeal would be persuaded….” Therefore, cases can only be “reviewed” in the very narrow confines of what it is thought will persuade the Court of Appeal that a conviction is unsafe. Any semblance of an independent Review Commission evaporates when that Commission is working within the confines of the very body whose findings it is supposed to be reviewing. There is no remedy to be had for Jordan Towers, when the CCRC cannot refer his case back on the grounds that his basic human rights were denied. There is no remedy to be had for Jordan Towers when the CCRC cannot address the fundamental issue that Jordan was charged and convicted of murder, but that charge could not have stood without being rooted in the principles of Joint Enterprise.

The purpose of a review commission, most would believe, would be to consider cases where clear injustices have occurred, and to address both those injustices themselves, and the causes of those injustices. Tied by the “real possibility test” the CCRC is incapable of addressing any issues which fall outside of that narrow remit, regardless of the extent to which those issues may have contributed to, or resulted in, injustice and unfairness occurring. This strictly legalistic approach allows many cases, such as Jordan Towers’, to slip through the net.
Yet to return momentarily to the Human rights Act, Article 7 requires that the law must be clear so that people know whether or not what they are doing is against the law.

Where is the clarity which informs citizens that simply being in the vicinity of the commission of a crime is against the law? Where is the clarity which informs a 16 year old youth that the throwing of a rock which strikes nobody can see him convicted of murder? Where, indeed, is the clarity that a charge of murder, which could not stand alone, can still be the basis for a conviction for murder, by the simple utilisation of other legislation?

These are issues which the CCRC does not, and cannot address. Yet where do those who have suffered injustice turn, when the body they believe can review their cases impartially, and remedy the failings which have led to those injustices, cannot do so?