by Brian Richardson, June 2012
The law on joint enterprise is one of the most complex and controversial in criminal law. It can be used to convict people who are said to have acted together while committing an offence. Each defendant is held "liable for the acts done in pursuance of that joint enterprise", including "liability for unusual consequences".
It was on this basis, for example, that Gary Dobson and David Norris were found guilty of the murder of Stephen Lawrence. It was acknowledged that the jury could not be sure that either of them had inflicted the fatal wound. Despite this they were convicted, as the judge observed when sentencing them, on the basis that they knew that one of their gang had a "lethal knife" and that this person had used it with their "knowledge and approval".
While welcoming the conviction of these racist thugs we should be deeply concerned about the use and abuse of joint enterprise. A recent decision of the UK Supreme Court has highlighted the risk of such ill-conceived laws leading to serious miscarriages of justice.
The case concerned Armel Gnango and an unidentified opponent known only as "bandana man" who decided to settle a dispute by shooting at one another across a car park in south London. Both missed their target but, tragically, a bullet fired by bandana man struck and killed a Polish care worker walking behind Gnango. Bandana man remains at large but Gnango was convicted of murder. The Supreme Court upheld this decision on the grounds that the gunfight was a joint enterprise. The death of a passer-by was therefore a foreseeable consequence of this agreement.
Whatever the merits of Gnango's case, there is a real concern that this law is being used to target people, specifically youths, who have made no agreement and may have no involvement whatsoever in criminal activity.
Readers will know that gangs are a particular obsession of the police, politicians and the press. After last summer's riots cabinet ministers were quick to declare that gangs had been at the heart of it. Home secretary Theresa May was forced into a humiliating climbdown when her department's own figures contradicted these claims. Nevertheless, the police maintain that gangs are responsible for a disproportionate amount of "serious" crime across the country.
In their desperation to combat this apparent menace the police are criminalising those who are simply bystanders in the wrong place at the wrong time. In recent years this has led to the adoption of what lawyers have described as a "dragnet approach" with joint enterprise being used to charge young people with violent crimes.
Individuals who happen to be on the periphery of an outbreak of disorder have been arrested and prosecuted on the flimsiest of evidence, including Facebook material revealing loose associations with countless people. The law assumes that if someone is "voluntarily present" among a group engaged in threatening behaviour, there must be a case for them to answer. The onus is thrown onto the defendant to show that they were not party to any agreement, that their presence and intentions were innocent or that they had "effectively withdrawn" from a preconceived plan.
The Metropolitan Police now regularly send officers into schools with a YouTube video entitled "Who Killed Deon?" It is a frightening, blood-curdling film which ends with the chilling warning, "If your presence, knowledge or actions lead to a murder you'll be charged with murder under joint enterprise."
Fortunately there is a groundswell of opposition to this indiscriminate approach and the injustice that results from it. A grassroots campaign, Joint Enterprise Not Guilty by Association (JENGbA), has been formed to raise awareness and provide support for prisoners seeking to challenge their convictions. JENGbA has produced its own video, "Not Guilty by Association", and played a significant role in pressuring the director of public prosecutions, Keir Starmer, into promising written guidance which clarifies the law.
Starmer was considered a bold appointment when he was appointed in 2008. He had previously been joint head of Doughty Street Chambers, one of the leading sets of human rights barristers. As recent controversies involving undercover and racist police officers and the overcharging of protesters have demonstrated, however, he has hardly covered himself in glory over the past three and a half years. It would be unwise to assume therefore that his guidance alone will herald a bright new dawn.
This column appeared in the Socialist Review here.