WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
April 17 2024
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
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The racist stereotypes behind joint enterprise

The racist stereotypes behind joint enterprise

Each year in England and Wales, hundreds of people are knowingly prosecuted for crimes they did not carry out. They are prosecuted under ‘joint enterprise’, or more accurately, ‘secondary liability’ – a legal principle allowing multiple people to be convicted for one offence. Recently released CPS data reveals the staggering scale of these prosecutions, with 680 defendants prosecuted in 190 homicide/attempted homicide cases across just six of 14 CPS areas in six months.

While not surprising to those involved in joint enterprise research and advocacy, the data concering ethnicity is still damning. Black people make up a huge 30% of defendants, most aged 18-24. Although these results are accompanied by relative silence from the CPS, my doctoral research foregrounds how the law is confounded by discriminatory police and prosecution work.

Last year I visited several English prisons, interviewing young black men and teenagers convicted as a secondary party to murder. I also interviewed their relatives, lawyers and one recently retried Crown Court Judge – the Christian names included below have been changed. One glaring concern emerged early on: some of the young men were serving life sentences despite doing nothing.

To be convicted as a secondary party the prosecution must prove that the defendant intentionally assisted or encouraged the principal offender to commit the crime. While this might sound reasonable, the level of physical conduct required to constitute ‘assistance’ and ‘encouragement’ is not properly defined in law, making it exceptionally vague and difficult to safeguard against wrongful conviction.

We are therefore ‘filling prisons up… full of young people who haven’t done very much’, as put by one senior barrister. Some of the young men were convicted based on conduct which amounted to no more than their presence at or near the crime scene, with their reason for being there not always demonstrable. As put by Ernest’s co-defendant Michael, Ernest was ‘convicted of murder for sleeping in the back of [his] car’. Which begs the question: how did the prosecution convince the jury that their presence constituted intentional assistance or encouragement?

In seeking an answer, the racialised gang label emerged as a powerful prosecution strategy which can story the presence of defendants at the crime scene.

Where there is an absence of direct evidence of a defendant’s physical contribution to the crime, prosecutors are likely to rely more on ‘story-telling’ and narrative to convince the jury. They use vague concepts such as ‘moral support’, and in Toby’s case, argued that he was at the scene to provide ‘extra muscle’ just in case.

The narrative of gangs was most central to this story-telling. Firstly, the gang narrative was evoked to establish a shared motive and backdrop for the offence. Previous violent incidents occurring in the defendants’ neighbourhoods were drawn on to establish a narrative of ‘tit-for-tat’ gang violence, which according to a prosecuting lawyer, can ‘help the jury understand why’ the crime occurred, making them ‘more comfortable’ to convict.

Secondly, it was used to support the assertion of shared knowledge, with prosecutors claiming that the defendants ‘must have known’ about the perpetrators intention to commit the crime, and their possession of a weapon.

Thirdly, it was used to undermine innocence in cases involving spontaneous violence. In Shaqueel’s case, he and his friend were confronted by two people with knives. His co-defendant’s retaliation led to a fatality. But the prosecution evoked the gang narrative to argue that the incident was not truly spontaneous. Instead, they contended that by ‘chilling on the block’, Shaqueel was expecting his ‘rivals’, willing to act in a supportive capacity should violence erupt.

Finally, the gang narrative was used to imply a criminal character, portraying defendants as willing and capable of assisting or encouraging serious harm.

The gang label therefore has a ‘conviction-maximising’ capacity. It supports an assertion of criminal motivations and connections even when the defendant did not physically contribute to the crime, without any clear legal standards for proving its accuracy. This overwhelmingly risks the wrongful conviction of black defendants who are more likely to be labelled gang members.

The CPS acknowledge that when used inappropriately, the gang label ‘risks casting… liability beyond that which can be established’. But we cannot be sure that it is used appropriately. The ‘gang’ has become a pervasive stereotype, carrying assumptions about race, age, gender, and criminality which have permeated the legal profession.

One barrister told me: ‘It’s the default assumption… when referring to a group of young black men to refer to them as a gang, whether or not they are officially affiliated… It’s become a common narrative… . No one questions it. No one thinks should we actually be going for murder for all of these people?”

Some lawyers conceded that applying the gang label to black defendants was more convincing. One defence barrister even disclosed that it was ‘easier to distance’ an Asian defendant from the gang label because the other defendants were black.

But the most troubling thing is that gang evidence often originates in police intelligence, which has been repeatedly criticised for racial bias. Just last year, the Metropolitan Police acknowledged the unlawful operation of their Gangs Matrix database following legal challenge from UNJUST and Liberty.

Stop and search, which overwhelmingly targets young black men, are key intelligence gathering tools, and the Casey Review affirmed that all police contact ‘leaves a trace’. The young men described numerous police encounters, including unaccompanied strip searches as children and daily stops and searches, with some of these referenced in court to imply ‘gang affiliations’.

In Ryan’s case, cell site data indicating his time spent in an estate where his friends lived was evidenced to infer gang ties, as the estate was labelled a gang ‘hotspot’. So, because of how they are policed, young black men are more likely to enter the courtroom with a backdrop of intelligence tying them to the ‘conviction-maximising’ gang narrative.

The CPS identified that 21% of cases in their caseload were ‘gang-related’. But this cannot tell us how often the ‘gang’ is evoked by prosecutors at trial, nor whether it is disproportionately evoked in cases involving young black defendants.

Even if the CPS attempted to measure this, they would still fall short of capturing the full scope of the gang narrative. The so-called ‘urban black gang’ has become so entrenched in the public imagination that language such as ‘turf’, ‘rival’, or even references to drill music, signal the gang without direct reference to it. This is especially true when juxtaposed against several young black defendants in the dock, who, according to one barrister are assumed to be ‘knife-wielding killers.’

My research therefore raises two questions for the CPS:

  1. Can they be sure that the hundreds of secondary parties prosecuted each year are truly responsible?
  2. Can they be sure that discriminatory police and prosecution work plays no part in their prosecution or conviction? I am not sure they can.