Diary

Melanie McFadyean

‘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,’ Detective Inspector John McFarlane said after the conviction of 17 of the 20 young people jointly charged with the murder of 15-year-old Sofyen Belamouadden at Victoria Station in March 2010: ‘the law on joint enterprise is clear and unforgiving.’ To be found guilty of murder as an individual it must be proved beyond reasonable doubt that you intended to kill or cause serious harm resulting in death. But under joint enterprise there is no need to prove that you intended to commit the crime, and you don’t have to be the person who plunged the knife or pulled the trigger. You can be convicted on what’s known as secondary liability on the basis that you must have realised that someone you were with might commit a violent act with that intent, even if you didn’t share it.

On the afternoon of 6 August 2013 Alex Henry, Janhelle Grant-Murray, Younis Tayyib and Cameron Ferguson, all aged 20 or 21, were involved in a fight in an Ealing street. The fight lasted around forty seconds and resulted in the death from a single stab wound of 21-year-old Taqui Khezihi; his brother Bourhane, aged 24, was also stabbed but survived. The four young men were charged under the law on joint enterprise and tried at the Old Bailey earlier this year. They all pleaded not guilty to murder and wounding with intent to cause serious bodily harm. The four weren’t described in court as gang members but, accurately enough, as a tightly knit group of friends. The prosecution emphasised their closeness in order to show that if one of them was carrying a knife on the day of the murder, the others would have known and therefore should have realised that it might be used to kill or cause serious harm.

Grant-Murray had met the Khezihi brothers when he was on his way to Tayyib’s house. There was a confrontation. Tayyib arrived and tried to calm the situation; Henry and Ferguson turned up too. Henry told the prosecution under cross-examination that he thought Grant-Murray, who had been stabbed a few weeks before in Henry’s company, was in danger. ‘My natural instinct was to help him,’ he said. The prosecution case was that Henry had a knife in his shoulder bag. But there was no evidence of this on CCTV footage and none was found subsequently. There was no doubt, however, that Ferguson had a knife.

Five days into the trial, Ferguson’s QC, Nadine Radford, announced that her client was changing his plea to guilty, but it didn’t become clear that he was the sole stabber until sentencing, when Radford told the court that Ferguson had been ‘on a frolic of his own’. Not knowing of Ferguson’s confession, the jury had found Henry and Grant-Murray guilty of murder, but they might well have reached the same verdict if they had known. Under joint enterprise it doesn’t matter who was carrying the knife or who used it. To be found not guilty, Ferguson’s companions would have had to prove they didn’t know he had a knife, hadn’t foreseen that he might use it and had withdrawn entirely from the scene. ‘Those,’ the judge said at sentencing, ‘are the … conclusions which our law requires to be proved in cases of this sort.’ The jury acquitted Tayyib; Henry and Grant-Murray, who were found guilty on both counts, got 19 years, reduced because of their age from the mandatory life sentence of 25 years for a crime involving a knife (it’s thirty years if a gun is involved). Ferguson got 22 years.

Many, including Sir Anthony Hooper, a Lord Justice of Appeal until 2012, have serious misgivings about the use of joint enterprise. ‘The doctrine is too wide and should be limited so that only a person who intends to kill or cause grievous bodily harm is guilty of murder,’ Hooper told me. ‘A person can’t normally be convicted unless he intended to kill or cause very serious harm; that is the mental requirement of murder. But in joint enterprise the courts have developed a legal principle that a person may be as guilty of a more serious crime, in this case murder, if they foresaw that someone might be killed by someone who has the requisite intention … The problem with that is that it is very hard to determine whether or not [someone] actually did foresee someone might be killed and probably too easy for a jury to conclude that that was his or her state of mind even though actually the young person for example had never even thought about it.’

The doctrine of joint enterprise, introduced three hundred years ago to deter duels (by prosecuting the duellists’ surgeons and seconds as well as the fighters themselves), has developed as common law and has never been enshrined in statute. Common law evolves through case law, and is interpreted and reinterpreted by judges, unlike Parliamentary legislation, which is worded in order to avoid such revision. ‘The doctrine of secondary liability has developed haphazardly and is permeated with uncertainty,’ the Law Commission noted in a 2007 paper called Participating in Crime. The same year it drafted a bill proposing a new approach aimed at distinguishing between first and second degree murder and introducing a statutory scheme for the law on complicity. The then Labour government said it couldn’t implement such major legislation in the life of the parliament.

In 2011 the Justice Select Committee invited submissions on the use of joint enterprise, responding to pressure not only from legal critics and academics but also from a vociferous and effective campaign group run by the families and friends of people sentenced under the law, Joint Enterprise: Not Guilty by Association (JENGbA), which had collected testimony from hundreds of prisoners. Alan Beith, chair of the select committee, concluded that the law was ‘so complex that juries might find it impossible to understand how to reach the right verdict’. The committee recommended that the doctrine be enshrined in legislation, which would clarify its provisions; that data on how many people were convicted under joint enterprise should be collected; and that new guidelines for the CPS should be drawn up by its then director, Keir Starmer. These were published in December 2012. Follow-up hearings in September this year suggest that they have had little impact.

I worked on a report that aimed to establish the extent to which the law was being used and the problems it posed.[*] It was impossible to know how often the law was invoked, although barristers told us they saw such cases regularly. We made freedom of information requests for details of homicide trials in which there had been more than one defendant and established that, between 2005 and 2013, 1853 people were prosecuted in cases where there were four or more defendants – roughly 17 per cent of all homicide trials. In the same period 4590 people were tried for homicide in cases with two or more defendants – effectively 44 per cent of such prosecutions. The average conviction rate in homicide trials involving multiple defendants is 76 per cent when there are two or more defendants and 73 per cent for four or more. Some months into our research, the CPS, responding to the recommendations from the select committee, published statistics for prosecutions for joint enterprise murder and manslaughter cases in 2012. Although the classification is slightly different – homicide includes infanticide and death by dangerous driving, for example – the CPS figures for murder and manslaughter that year tallied with those we’d found. The CPS doesn’t plan to continue publishing these figures. In 2013, 22 per cent of all appeal court cases involved a joint enterprise conviction, double the rate in 2008. In 2012 there were 11 appeals against murder convictions under joint enterprise. Of these, seven were upheld, one sentence was altered and three were quashed. It’s easy to see why so many of these cases go to appeal. But as David Ormerod, the law commissioner, said to the Justice Select Committee, the outcome of these appeals – like those of the original trials – ‘are often perceived as illogical or unfair’.

In May 2010 two South London gangs, Shanks and Guns and the Sydenham Boys, confronted each other in a Sydenham park. After a burst of bravado, the Sydenham Boys retreated. As they were running off, a member of their gang, 16-year-old Nicholas Pearton, arrived in the park on his own. Some of the Shanks and Guns chased him and one of them, 16-year-old Dale Green, stabbed Pearton, who’d got as far as the main road on the edge of the park. He staggered into a takeaway, where he died not long afterwards. Three of the Shanks and Guns boys were given mandatory life sentences for Pearton’s murder and four for manslaughter. One of them was 17-year-old Edward Conteh, who has an IQ of 71. To impute a degree of foresight to him stretches common sense, especially since CCTV footage shows him in the park riding his bike at the time of the stabbing. He was found guilty of manslaughter and sentenced to seven years. Francis FitzGibbon, who defended Conteh, characterises the law on joint enterprise as a fishing expedition: ‘Drop your drift net into the ocean and you pull up all sorts of fish, big and small, and you hope someone’s going to drop the small fish back in before it’s too late but you can never be sure that’s going to happen.’

As well as small fry like Conteh, the law catches big fish like Gary Dobson and David Norris. Although neither of them was found guilty of carrying out the stabbing that killed Stephen Lawrence when they were finally tried in 2011, new scientific evidence demonstrated they had been very close to Lawrence when he was attacked – ‘proximity’, as the judgment allowing Dobson’s retrial stated, ‘for which no innocent explanation can be discerned’. As Andrew Hall, a criminal barrister and former chairman of the Criminal Bar Association, says, ‘If you participate in some way in the offence and you intend what happens to happen or encourage everything to come about, then you carry moral culpability and criminal responsibility.’ But the way joint enterprise is interpreted, Hall added, means that people are also ‘convicted of murder who did not intend or desire or expect that to be the result’.

Laura Mitchell and her boyfriend, Michael Hall, stopped for a drink at the King’s Head in Buttershaw, Bradford on a Saturday night out in 2007. At about 2 a.m. they and some friends left the pub and got into a taxi outside. The taxi turned out to have been booked by someone else and a fight broke out. The court heard that 22-year-old Mitchell was drunk and aggressive. During the fight, she somehow lost her shoes and when it ended she was still hunting for them. Meanwhile, two of her co-defendants went to a nearby house, where they collected a mace, CS gas and knuckledusters, and then returned to the pub car park. A second, more vicious fight began, during which Andrew Ayres was murdered. ‘When I was in the car park looking for my shoe[s] I was not there encouraging anyone. I did not want a fight,’ Mitchell told the court. One of the group, Carl Holmes, pleaded guilty to murder and got life. Mitchell, her boyfriend and another man were also convicted and given life sentences. Mitchell’s continued presence in the car park was enough to make her complicit in the joint enterprise of murder. The Court of Appeal upheld the judgment.

Even more bizarrely, 25-year-old Nigel Ramsey received a 35-year sentence for murder although he was in jail (for unlawful wounding and wounding with intent to cause grievous bodily harm) when the murder was committed. The case against him rested largely on mobile phone calls and texts between him and two other defendants on the day of the murder, although the court wasn’t told the content of the calls and texts. The other evidence used against Ramsey came from a witness who claimed she’d been told that Ramsey said to one of his co-defendants: ‘If the shoe was on the other foot and their mans [sic] had got me they wouldn’t have let me go.’

Public perception of the defendants caught up in joint enterprise trials is that they are unsympathetic characters, as one QC said; often the crimes involve two gangs. But not always. It was after meeting the parents of Ben Kinsella, murdered at the age of 16, that the then home secretary Jack Straw extended the mandatory sentence for murder involving a knife to 25 years. Kinsella and his friends went out to celebrate after finishing their GCSEs. One of his friends had a disagreement with some men in a bar; one of the men, Jade Braithwaite, and two others, Juress Kika and Michael Alleyne, who came later, attacked Kinsella’s group as they left the bar.

What happened was described when Kika unsuccessfully took his case to appeal: Kinsella, the judges said,

offered not a shred of provocation … All he wanted to do – and he tried to do – was to get away from trouble, but he was cut down before he could reach safety … Frightened, the group of young men [had] started to run away. Kinsella was at the back of the group. He became isolated. He crossed the road, but he was followed. He was hunted down. He was knocked to the ground between two parked vehicles, set upon and stabbed 11 times.

It isn’t surprising that Kinsella’s parents would support the law on joint enterprise and push for heavy sentences. Some victims’ relatives have become involved in formulating policy. Helen Newlove, now Baroness Newlove, was made victims’ commissioner in 2012 with David Cameron’s backing. Her husband, Garry, was killed in 2007 after he confronted some drunken youths outside their house in Warrington; three of them were convicted under joint enterprise. It’s not easy to argue against the wish to take account of the feelings of victims’ families, but some lawyers, including the QC Andrew Hall, are wary: ‘Successive governments over the years have said we need to put victims at the heart of the criminal justice system and they say the criminal justice system has to be rebalanced. It’s only ever rebalanced in one direction, which is towards the victim, towards getting tougher on criminals, bringing more people to justice. The very phrases used are loaded with and infected by that spirit.’

Without a basis in statute, the law is susceptible to being altered in ways that allow it to be used as a means of social engineering. As you pick your way through the legalese of judges’ statements at trial and appeal, it becomes clear that the demands of social policy, not to mention the media, play a dominant part in their interpretations and reinterpretations of the law on joint enterprise. In R. v. Powell and Another in the House of Lords in 1997, Lord Mustill admitted that the law was determined by ‘practical and policy considerations’; although ‘intellectually, there are problems with the concept of a joint venture … they do not detract from its general practical worth.’ Lord Hutton agreed that ‘the rules of common law are not based solely on logic but relate to practical concerns and, in relation to crimes committed in the course of joint enterprise, to the need to give effective protection to the public against criminals operating in gangs.’ ‘In the real world,’ Lord Steyn added, ‘proof of an intention sufficient for murder would be well nigh impossible in the vast majority of joint enterprise cases.’

Lord Falconer, lord chancellor under Blair, casually dismisses the rights of defendants in these cases. ‘The message that the law is sending out,’ he said in 2010,

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 that is 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.

One case that still bothers Anthony Hooper is R. v. Gnango. In December 2009 Hooper and four other judges heard Armel Gnango’s appeal against his conviction for murder, attempted murder and possession of a firearm with intent to endanger life. Gnango was 17 in October 2007, when, armed with a gun, he went out looking for a man who owed him money. He found the man, who was wearing a red bandana over his face, in a car park on an estate in New Cross. Bandana Man, as he is referred to in the case, started shooting at Gnango, who returned fire. Missing his target, Bandana Man instead hit and killed Magda Pniewska, a 26-year-old Polish care worker who was walking past, talking to her sister in Poland on her mobile. Gnango identified Bandana Man, but he was never charged: the police were unable to get sufficient evidence against him. But Gnango was charged and convicted of murder even though the first, fatal bullet had been intended for him. The judge advised the jury that the two men were in a joint enterprise to commit this crime. Hooper and his fellow judges quashed the conviction on appeal. Gnango and Bandana Man could not, they reasoned, have had a common purpose; their intentions were in opposition to each other.

‘This is how Gnango operates in practice,’ Hooper said. ‘Myself, my brother, my cousin and a friend are having a fight with another gang. A member of the other gang kills my brother. Clearly the person who shot him or stabbed him is guilty of murder and under ordinary joint enterprise doctrine the three other members of the opposing gang may well be guilty of murder. But following Gnango I am also guilty of the murder of my brother.’ The case went to the Supreme Court, which reinstated the conviction. The Supreme Court judges noted that ‘in resolving the point of law it will be appropriate to have regard to policy.’ But as the Justice Select Committee warned, ‘overcharging under joint enterprise will not assist the task of those trying to deter young people from becoming involved in gangs.’ The drive to use joint enterprise to further social policy at the risk of compromising judicial impartiality is clear. The underlying consensus, as demonstrated by Falconer, is one of contempt for the defendants.

Lord Hutton and Lord Mustill’s comments about the practical considerations governing the law on joint enterprise were occasioned by a shooting carried out by a former gang member called Tony Powell 23 years ago. It was this case which established that a secondary party need not have the intention to murder, but can still be as guilty as the principal. Powell and another young man set out to complete a drug deal. It went wrong. Powell pulled a gun and shot the dealer. Convicted of murder, he served twenty years before being paroled ten months ago. His co-defendant is still inside because, Powell says, he has always refused to accept that he was guilty, something which can prevent parole.

The textbook gang member is a boy with a hard-up, overworked mother and an absent, feckless father. That wasn’t Powell. ‘My parents tried to teach me the right values but I used to think you’ve got nothing, what can you tell me? The man driving the BMW – he’s the one I want to listen to, the man who’s got three girlfriends. By the time I was 12 my mindset was that the streets are full of gold and glory, I looked up to the older grown men who make trouble. I was influenced by violence and fast money.’ Powell was dyslexic and could barely read and write. ‘I looked for friends who were like me and started hanging round with guys bunking off school, drinking and smoking weed. These guys had the most respect.’ When he was 15 he was sentenced to three years for robbery and paroled after a year. ‘They let me out to destroy myself. I still couldn’t read or write, I’m back on those streets. I don’t know how to go for a job interview, I don’t know how to speak to people, my pants are round my bum, I couldn’t even spell my name.’

You know the right people, he said, and you can get a gun, it doesn’t even cost much. Six years after that first spell in jail he was back, this time as a lifer. ‘I went on a drugs deal and it went wrong, I pulled the trigger. I didn’t stop and think, I didn’t analyse the situation; it was spur of the moment. I had no intention of killing anyone but if you have a gun or a knife you don’t know what’s going to happen. You don’t say I’m going to go and kill someone today. I’d say only 4 per cent of gang members who kill have that in mind. My case was joint enterprise and my co-defendant did nothing and doesn’t deserve to be in prison. I got parole – he’s still inside. It’s not his fault I killed someone. Did he have foresight? No. He came with me to the address to do a drug deal and I had a gun and no intention of killing, the gun was for self-protection. I didn’t have the intention so how could he have the foresight?’

Powell has moved back to the badlands where he grew up and is a part-time youth worker and motivational speaker. ‘You have to get to kids like me by the time they’re eight or ten,’ he says. ‘Don’t wait until they’re 15 and they’ve been expelled from school. Teach them they will be something in life … Teach them morals and traditions. It should be on the national curriculum.’

Having gathered submissions on joint enterprise to follow up on its 2011 inquiry the Justice Select Committee is currently hearing evidence. But will the government be prepared to act on any recommendations? Its silence when confronted with the committee’s recommendation to enshrine joint enterprise in statute isn’t encouraging. After her brother Alex’s conviction in May, Charlotte Henry wrote to Damien Green, the minister for policing, criminal justice and victims, with her objections to joint enterprise. He replied: ‘We are not persuaded that the law is unclear or that there is pressing need for change.’

[*] The report, Joint Enterprise: An Investigation into the Legal Doctrine of Joint Enterprise in Criminal Convictions, published by the Bureau of Investigative Journalism, appeared in April.