Joint enterprise has been the subject of documentaries, challenges within the Supreme Court and Court of Appeals, media coverage and a wave of criticism growing over many years. It allows those connected to (or allegedly connected to) someone who committed a crime to be prosecuted for that same crime (often used in cases of murder, bodily harm or burglary). It has been seen by police forces as a powerful tool to tackle gang crime. The reasoning was to make it ‘pay’ to be involved in gangs or with those associated with criminal activity, hoping to act as a deterrent.
Critics have argued that rather than tackling criminality, it has overcriminalized communities leading to numerous wrongful imprisonments. Prosecutions and media reporting surrounding joint enterprise have been described as “a dangerous cocktail of innuendo, hearsay and racism”, using terminology such as ‘gang-like’ or ‘thug’ to shape public perceptions of young, often BAME defendants. Rather than seeking justice for victims of serious crimes, campaigners argue it has in turn created more victims, crippling families with little legal expertise and resources to challenge their relatives’ convictions for their secondary part in crimes.
Killing the Law and the Joint Enterprise: Not Guilty by Association campaign
A new documentary, Killing the Law follows the story of a campaign that has advocated for those wrongfully imprisoned and fought for changes in the law to address what they see as over-reach, leading people to be deemed ‘guilty by association’. It seeks to set the record straight beyond sensationalist headlines, getting close to the families involved in joint enterprise cases over an incredible five years’ worth of filming.
The Leveller spoke with Director Anton Califano and Producer Milica Kastner following a successful crowdfunder about the process of the film, following cases that have hit numerous families hard, the successes and knockbacks and when viewers can expect screenings.
Anton came across the campaign group, at that time called Londoners Against Injustice (LAI), after seeking help with a friends unexpected conviction for a drugs related crime in 2009.
“While they were on remand waiting for the trial I wanted to work out what was happening as the information I was getting was very patchy. Initially I went to LAIs meetings to get help. Over time I learnt more and more about joint enterprise, I met quite a lot of women at the meetings whose husbands, sons or family members had been arrested, charged and convicted – many of them serving life sentences for murder – and the common thing between these cases was how joint enterprise was being used.”
Gloria Morrison, who founded LAI and later became co-founder and campaigner with Joint Enterprise: Not Guilty by Association (JENGbA), spoke with the Leveller about its history and the challenges they’ve faced. Gloria started Londoners Against Injustice in response to the conviction in early 2000s of her son’s friend Kenneth Alexander under joint enterprise murder. Years later in 2009, BBC Panorama were working on a documentary about joint enterprise called Lethal Enterprise and were interested in his case. The producer told Gloria she should meet Janet Cunliffe, whose son had also been convicted under joint enterprise.
She described the events surrounding the documentary release:
“Janet Cunliffe and I met in 2009, just before the Panorama was released. We became friends and I eventually said ‘we need a campaign’ – by that time, I’d met too many mothers of Kens and Jordans. We didn’t have any resources at that point, we just knew we needed a campaign. When the Panorama came out, there was a CEO who was very concerned about Ken’s case and he tracked me down because I’d been trying to find justice for Ken. I went to see him with a barrister and he asked what we wanted, how he could help. Thankfully he did our stationary, letterhead, designed a website, cards, made a film and gave us £10,000. So from not having a campaign or resources, we officially launched in October 2010 at the Labour party conference in Liverpool.”
Over the years, joint enterprise has gotten increasing coverage and attention spanning from television drama, documentary, academic research, evening news, radio as well as online and print media. But when Gloria began campaigning and Anton began working on the film, the story and the cases involved had much less public attention.
Anton described those early months:
“I was interested to try and tell their story because at that point the wider public, myself included, hadn’t heard about joint enterprise and I felt that this story was something that really needed to be told. In the beginning it was challenging for a number of reasons to try and approach making a film. A lot of the people were in a very vulnerable state of mind and many felt like the system was already working against them anyway so why should they trust somebody they didn’t know to film them?
Overcoming that initial anxiety was mostly a question of building trust, not rushing and taking time understanding their stories. Which is why I’m here nearly seven years later from my initial introduction to this. When I initially started thinking about working on the film not only was I trying to get my head around many of the cases and the individuals that had been affected but also the justice system. I spoke to a number of lawyers who were involved in the issue of joint enterprise (in some cases they actually approached me). So the film has become a combination of meeting the families, the campaigners but also getting insight from lawyers as well, in particular Simon Natas (JENGbA’s lawyer) and Felicity Gerry QC, who represented Ameen Jogee during his trial and at the Supreme Court.
Law is important in the whole story but actually its all of the knock on effects that it has for a family that makes it even harder for them. It’s been very difficult over the years because I can see what these families are going through. At the same time, it’s been very inspiring to see people organize with virtually no resources, no specific expertise or legal background. As ordinary women and men they’ve come together and fought this campaign and have pushed the Supreme Court to admit that the law has been wrongly applied for three decades.”
In February 2016, the Supreme Court delivered its verdict in the case of R v Jogee. The case was a hugely important assessment of how the doctrine of joint enterprise had been interpreted, particularly concerning how judges assessed the guilt of a secondary party who didn’t strike the blow that caused a persons’ death but is accused of playing a part. The central concern revolved around the issue of foresight – something which was used against defendants as evidence of their guilt. For example, if an individual could be proved/argued to be aware of the presence of a weapon, and therefore aware of the possibility of its use, they would be culpable in any harm resulting from the weapon even if they are themselves unarmed.
Lord Neuberger, president of the Supreme Court said while delivering the verdict:
“The error was to treat the secondary party’s foresight that a principle might commit crime B as automatically enough for the secondary party to be guilty of assisting or encouraging the principle to commit crime B. The correct position here is that the secondary party’s foresight of what the principle might do is evidence from which the jury might infer that the secondary party had intended to assist or encourage the principle to do that. But it is for the jury to decide on the whole of the evidence, whether the secondary party had the necessary intent.”
The judgement found that the law had been misinterpreted for around 30 years, representing a “serious and anomalous departure from the basic rule, which results in over-extension of the law of murder and reduction of the law of manslaughter.”
Arriving at this legal decision has not been without struggle for the campaign, as Gloria makes clear:
“One of the main problems we had at the beginning was that people like Lord Faulkner and Lord McNally would say that we were the ‘winging mothers of gang members’. There’s always been this narrative that this is about gangs and gang crime and it’s not wrongly convicting innocent people. We kind of proved that one isn’t true anymore because we’ve just been relentless and showed we are right. I think that’s why people sat up and listened to us, not just commentators but MPs.”
The politics of joint enterprise
Surrounding JENGbA’s work on particular cases, advocacy, campaigning, prison visits as well as providing a support network for mothers and relatives, there has undeniably been a wider political context they have had to resist.
Anton noted: “The campaign is very much focused on the law around joint enterprise but in a sense the wider issues are about the over-criminalization, particularly of young men from working class background, particularly from black and ethnic minority backgrounds. Some lawyers I spoke to said that it was being used as a dragnet to sweep up as many people as possible connected to a crime, and that it makes prosecuting lazy because it allows the prosecution to work backwards to find evidence especially in relation to foresight”
Gloria argued that much of the interest in keeping joint enterprise working the way it was, was driven by narratives of ‘broken Britain’ or ‘feral Britain’, fueling perceptions and fears surrounding gang-filled, dangerous cities and streets out of control. She emphasized that joint enterprise “has been a sledgehammer for the police. You don’t have to provide evidence of what people’s foresight or intentions were you just say well they’re in it together, you must’ve known, you’ve got the same bandana on as him, well you’re clearly in a gang.
It’s the CPS [Crown Prosecution Service] – they know what they’re doing. They know what they’re doing when they charge large groups of people, because it’s so much easier to get convictions. We’ve had numerous cases where there’s been a hung jury but later a person’s been in the dock on their own and they’ve been acquitted. But if you put them together with five other people and just bandy words around like ‘gang-like’ it’s going to be different. They use the same terminology all the time. The narrative of the gang runs through all of this. You can be picked up for something like possession or another smaller crime, be placed on the Gang Matrix, already be on the police radar and then be convicted through joint enterprise for murder.”
The practice of using particular kinds of language to shape the context of a case, cast aspersions as to individuals’ motivations and intent as well as culpability has led some commentators to describe joint enterprise prosecutions as “a dangerous cocktail of innuendo, hearsay and racism”.
An article published in the British Journal of Criminology titled ‘Used and abused: the problematic usage of gang terminology in the United Kingdom and its implications for ethnic minority youth’ argued that:
“The incursion into the lives of young BAME people identified as gang-involved or at risk of gang involvement occasions an alarming disregard of the rights of the young people so classified… [T]he stigmatic effect of the gang label, the inflation of risk and the imposition of punitive court disposals (disproportionate sentences and incapacitation strategies) can have a profound impact in curtailing the life opportunities and chances for many young BAME people.”
In Anton’s experience following the campaign and the twists and turns of challenging joint enterprise he found that:
“There’s a kind of sense among a certain number of people that there’s a bunch of people out there that are “up to no good” and involved in criminal activity and that seeps over into perceiving young people as being part of gangs when really they might just be a group of people. I think it’s very political in that sense and it’s a very convenient law to basically sweep people up who are maybe ‘undesirable’ if you like.
Now the word gang doesn’t actually have a statutory definition and I think that’s part of the problem and that’s where the media’s role is. I think it’s very easy in media reporting to use the word gang because it’s quite a sensational word. But here’s a group of young people in the street, are they a gang? I think that’s where the problem lies, the moment you get into describing them as a gang it’s a label that then allows you to put people in a certain place in your mind where you think maybe they deserve to be punished.”
Part of the challenge for families fighting on behalf of their convicted relatives is the legal implications of this broader ‘tough on crime’ rhetoric. The imposition of mandatory life sentences for murder under the 2003 Criminal Justice Act has meant extremely long sentences for those jailed for secondary roles in crimes “because judges’ ability to exercise discretion in individual cases was curtailed”.
Despite media coverage suggesting campaigns to change the law and the Supreme Court decision to that effect are letting murderers and criminals ‘loose in society’, it has often been at its core about justice and fairness – not actively seeking to undermine the impact of crime but to resist campaigns of retribution that lead to overcriminalization, creating more victims.
As Producer Milica Kastner notes:
“The whole issue of Joint Enterprise is tragic and if you get caught up in it, it can ruin lives. Obviously there’s a victim, often someone who’s been killed or has been the victim of a burglary. You can see how it can affect the victim and their family but also stretch to impact large numbers of youth and their families because of this archaic law used during the duelling days. It can now be transmitted via text message – even if you aren’t at the scene of a crime you can be ‘connected’ to it and get a life sentence if you were contacted by someone who was. So many of these boys had a clean slate before being convicted under joint enterprise, their mums and families are torn up by it.”
The hope is that the film can challenge these perceptions, showing that in the pursuit of tackling crime and seeking justice for its victims, there are much wider, often irreparable impacts. There remain questions among campaigners as to whether the pursuit of justice for past, and protection for future victims of crime was driven solely by positive intentions. As they have experienced in years of challenging the wrongful interpretation of joint enterprise, often the rhetoric of tackling crime and seeking justice has created more victims and wider injustices, increased prison populations, perpetuated stigmatizing stereotypes and acted to further criminalize areas of poverty.
It is much easier politically to stigmatize and divide, presenting criminality as an inherent part of an individual’s or an area’s character rather than systematically emerging from particular sets of socio-economic circumstances. Killing the Law hopes to complicate this simplistic story of unrepentant criminality through the voices of those whose relatives have been wrongly swept up – by humanizing the story beyond mugshots used in media coverage, exploring in detail what it looks and feels like to be on the receiving end of wrongful convictions and institutional racism.
Killing the Law is set to be completed by June 2017, with screenings later in the year.
Images: Anton Califano