REVIEW: The title of Jimmy McGovern’s latest criminal law drama Common refers to the doctrine of ‘common purpose’ in the law of joint enterprise, the film’s working class setting, and perhaps the frequency as he sees it of miscarriages of justice. One of the characters says ‘joint enterprise is about getting working class scum off our streets’.
This is a film that wears its politics on its sleeve.
McGovern tells the story of a murder chiefly from the points of view of the mothers of the 16-year old victim, and of one of the accused, Johnjo (Nico Mirallegro). The grieving mother (Susan Lynch) is counterpointed against the baffled parents of Johnjo, 17 years, who drove the murderers to the scene but unambiguously did not know what they were going to do, and took no part in the killing. In the best scene, Susan Lynch wails as she sees her dead son for the last time in the unforgiving glare of a hospital mortuary, while a cynical old detective (Robert Pugh) looks on. A glass panel silences her screams.
The actors convey the dumb shock of grief, and the disruption caused by a murder charge, with truthful and moving performances. If McGovern had been content to dramatise the tsunami of collateral damage that a violent killing sets off, Common would have been a success, but his ambition goes beyond this: he wants the story to be a vehicle for a campaign against the use of the joint enterprise law.
Sad to say, the film fails, and fails badly, when it turns into a docu-drama, because the documentary element is woefully inaccurate and never clearly explains what is wrong with prosecuting people under joint enterprise.
The film is legally illiterate. If you are going to advocate a change to a bad law through drama, of course, you get some licence. But the howlers kept on coming, and they cut any authority the film might have had from under it: Magistrates do not hear bail applications in murder cases; High Court judges are ‘My Lord’ not ‘Your Honour’; Judges do not decide criminal cases on the weight of the evidence; prosecutors never join discussions about pleas between defence lawyers and their clients – a key scene, when Johnjo has to decide whether to admit something he hasn’t done and get a shorter sentence or take the risk of fighting the murder charge. There was no attempt to seek a prior indication of the likely sentence from the Judge – as any halfway decent brief would have wanted.
The sheer badness and incompetence of Johnjo’s barrister (a junior, not the Silk he would almost certainly have had in real life) may have been part of the point, but he really did not know what he was doing. Didactic and hectoring speeches are put in the mouths of the barrister and the Judge, played by Michael Gambon with more than a nod to Peter Cook.
Critically, the plot fails to dramatise or articulate the paradox of joint enterprise: being guilty for something that you have not done, but which you are found to have foreseen in a way that makes you as responsible as the person who carried out the crime. That was not the scenario in the film.
As the driver of a car who took the murderer to the scene, and waited outside with the engine running, Johnjo had some explaining to do. Not whether he foresaw lethal violence that might arise in the course of something different that he had signed up to, but whether he was in on it from the start, and was actively involved as the getaway driver for the murderer.
Johnjo did not want to risk being convicted of murder and after much heart-searching pleaded guilty to conspiracy to cause GBH, with a guaranteed reduced sentence, even though he knew he was not part of it. That had nothing to do with the murder at all, but with another attack that the murderer carried out on some one else.
The legal parts of the script were wooden and clunky, but some fine performances rescued the drama, if not the documentary.
Author: Francis FitzGibbon QC
Francis FitzGibbon QC is a criminal barrister at 23 Essex Street. He is immediate past chair of the Criminal Bar Association. The views expressed here are personal