Guidance to prosecutors on the controversial doctrine of joint enterprise has been revised to lessen the risk of children and those with learning disabilities being caught in its scope, after campaigners threatened legal action. JENGbA (Joint Enterprise: Not Guilty by Association) was concerned that new guidance by the Crown Prosecution Service did not adequately reflect the need for care for vulnerable groups. Last year the CPS consulted on its proposed help for its prosecutors which summarised the main principles of secondary liability in light of the Supreme Court’s 2015 ruling in R v Jogee.
In Jogee, the Supreme Court sought to restore the pre-1984 position – and so for a secondary defendant to be found guilty of a crime they would need to have ‘intentionally assisted or encouraged’ the crime committed rather than merely having had some ‘foresight’ that the crime might take place. Earlier in the year JENGbA began a legal challenge to guidelines following the closure of the consultation on the basis it was ‘deficient and unlawful’ insofar as it failed to have regard to the position of children and those with disabilities and cases involving ‘spontaneous outbreaks of violence’.
According to the CPS’s response to JENGbA’s pre-action letter, it will now consult on a revised version guidance which now stresses prosecutors reflecting upon ‘the real possibility that the spontaneous situation, or the mental capacity of the person’, might mean that they did not have such foresight which will contribute to the decision about their intention.’
The revised guidance addresses ‘the real possibility that the spontaneous situation, or the mental capacity of the person, might mean that they did not have such foresight which will contribute to the decision about their intention’.
‘A fast moving situation, the lesser developed thinking or experience of a child or young person, the impaired or different thinking of a person with a learning disability, autism or other mental health issue – may mean a suspect is less able to appreciate what may follow.’
Revised CPS guidelines
‘Under joint enterprise children as young as 13, with learning disabilities, have been convicted of murder committed by someone else,’ said JENGbA’s Gloria Morrison. ‘It’s time we woke up to the fact that the UK is the only country in Western Europe sentencing our children to life in prison.’ She called the latest CPS consultation ‘an acknowledgement that JENGbA is right in calling for the abolition of joint enterprise and an end to life sentences for children’.
JENGbA was represented by Dean Kingham of Swain & Co Solicitors and Matt Stanbury of Garden Court North Chambers. Guilty Until Proven Innocent (Biteback, 2018) featured the case of Alex Henry who was diagnosed with autism year after he was sentenced to a minimum of 19 years for being involved in a 47 second affray. The book featured an interview with Britain’s leading expert on autism Professor Simon Baron Cohen who appeared in Henry’s appeal as an expert witness last year – see here.
‘It felt as though the prosecution ambushed me…’
Shortly after Alex Henry’s trial at which he was sentenced to a minimum of 19 years, a woman emailed his mother, Dr Sally Halsall after reading about her son’s case. Had it ever occurred to her that her son might be autistic, the woman asked? Jon Robins speaks to the Britain’s leading expert on autism
Dr Halsall started reading up on autism and wrote to a number of experts, including Professor Simon Baron-Cohen, director of the Autism Research Centre at Cambridge University, asking him to meet her son.
Prof Baron-Cohen is Britain’s leading expert on autism. He was to meet with Alex Henry twice, in June and December 2014, at his category A prison. He recorded the interview. ‘I didn’t start the fight, and I didn’t stab anyone,’ Henry told him. He told the doctor of his past antics – how, when he was young, he was ‘proper naughty’.
Henry told the doctor that he had always been conscious of being ‘different’. ‘I talk to people in the prison a bit randomly. I play snooker but I don’t get involved in conversation. I like to do Sudoku and crosswords. I spend hours on those. If I’m alone in my cell I stay on computer games all night.’
On Prof Baron-Cohen’s autism spectrum quotient questionnaire, which aims to test whether adults have the condition, Henry scored ‘a very high’ 35 out of 50. The majority of males tend to score 17 and the average score for females is 15. If someone scores over 32, then this suggests that they may have Asperger’s.
I attended Henry’s appeal last June. With an air of calm deriving from a peerless command of his area of specialism, the psychiatrist proved a credible and persuasive witness. He was unfazed by a court that was clearly sceptical about a late and convenient diagnosis.
As he explained to the court, his clinic in Cambridge has diagnosed over 1,000 people with autism or Asperger Syndrome whose diagnosis also had been overlooked into early adulthood.
The signs are subtle and for that reason, he explained, it was often described as an invisible disability.
Autism ‘just doesn’t start out of the blue’, said Professor Baron-Cohen, it was there throughout early development. It manifested itself in difficulties socialising, interpreting emotional expressions as well as understanding jokes. ‘I see autism as a complex disability,’ the psychologist told the court from the witness box. ‘It affects many different functions, including the processing of information. People with autism struggle with situations where there is too much information to take in. It is a major piece of information that the jury needs to know. It is nobody’s fault because the diagnosis hadn’t been made yet.’
Autism was a diagnosis from which all sorts of consequences flowed in the kind of fast-moving situation that led to a young man’s death. The incident that Alex Henry was convicted of took less than fifty seconds. ‘People with autism struggle to make rapid decisions under pressure,’ the professor said.
Prof Baron-Cohen went on to say autistic people also tended to be ‘very rigid in the application of rules’ and so, for example, would stick to a solicitor’s edict to make ‘no comment’.
Autistic people also made poor choices in friends because they could not read people’s motives, easily became fixated and displayed ‘tunnel vision’, the professor went on. ‘Someone with autism could be mistaken for showing very little remorse,’ Professor Baron-Cohen told the court.
Under the law of joint enterprise, a jury can convict if it is proved that the secondary defendant foresaw the ‘possibility’ that death might occur. That is exactly the kind of subjective judgement an autistic person might well struggle with. As Baron-Cohen made clear.
The bench had little sympathy for the professor’s insight. ‘It seems to us, having regard to all the evidence, that it can have had no effect on the issue of Henry’s thinking process at the time of the murder in the respects identified by Professor Baron-Cohen,’ they said. At worst, they ruled Henry suffered from ‘mild mental illness that was immaterial to his culpability for murder’.
Some six months after the Court of Appeal hearing, I interviewed Baron-Cohen.
I asked him what impression his day in court had made on him. ‘It felt as though the prosecution had ambushed me and also that I hadn’t been adequately briefed by the defence team,’ he told me. As an expert, he understood his role was ‘to be there to serve the court rather than either side’. ‘Frankly, that wasn’t what it felt like,’ he said.
The doctor felt that the prosecuting counsel’s interrogation of him was ‘bordering on the offensive’. In particular, he resented the suggestion that Henry’s mother, Dr Sally Halsall, might have tried to dupe him. He pointed out that he visited Henry a second time in prison, after receiving an anonymous letter suggesting he was having the wool pulled over his eyes.
Prof Baron-Cohen accepted the court’s offer to examine all of the reports on Alex Henry and submitted a second report on that basis after the hearing. ‘It didn’t change my diagnosis. If anything, it bolstered it,’ he said.
The interview with Professor Simon Baron-Cohen is an extract from Guilty Until Proven Innocent: the crisis in the justice system (Biteback Publishing) by Jon Robins