In 2010 not long after JENGbA started our campaign, Lord Herman Ouseley asked the question in the House of Lords regarding statistics on joint enterprise convictions. Lord Ouseley was concerned then that the law of joint enterprise was discriminatory, especially towards young black men. Lord McNally’s response was this:
‘We are aware that some concerns have been raised about joint enterprise law. The majority of these appear to be based on a misunderstanding of the law and have expressed concern that innocent bystanders may be convicted unfairly. A small number have been raised by the friends or families of gang members who consider that their involvement in the gang’s criminal activities was not significant enough to warrant conviction for the offences in question. Ultimately, it is for the jury to decide on the scope of the joint enterprise and the mind of the parties to it in each case, taking account of all the evidence heard at the trial.’
Since then this small number of friends or families gang members (of which JENGbA families are most certainly not) have reached over 500 prisoners and rising.
Chris Grayling released his response to the report this morning (discreetly so as to avoid the press). He stated:
‘It is worth emphasising that the law on joint enterprise only applies when a group of people are already engaged in criminal activity (sometimes very serious activity) and in the course of that activity another offence is committed. The law means that all those who foresaw that the ‘collateral’ offence might be committed in the course of the original criminal activity can be prosecuted for that offence. The law certainly does not criminalise innocent bystanders as has been portrayed in certain sections of the media.’
Sound familiar? This is the government line and has been for several years; many of the JENGbA families who have written Mr Grayling, desperate to know why their loved one is serving a life sentence for a murder they did not commit or foresee, all get the standard response. JENGbA knows because they send them to us.
It is inconceivable that the minister for justice cannot understand how much academic research has now gone into the issue of joint enterprise charging. Our campaigning has brought this issue into the academic and legal arena. There were serious concerns raised by the House of Commons’ justice select committee. He can’t possibly believe they are unfounded.
Of course if is easier to charge ‘groups’ with serious crimes such as murder because it lowers the evidential bar to virtually non-existent. The idea that each individual has to ‘contemplate’ that a real risk might occur in an incident they did not instigate (the ‘possible foresight’ test) may as well be based on voodoo. It is about being psychic.
It is also notable that Mr Grayling is now having a go at the press for misrepresenting joint enterprise when it was those very same journalists who sensationalised cases making out that every member involved was guilty of murder. Take Laura Mitchell’s case, cited by many uncomfortable with how joint enterprise has been interpreted. She was simply in a car park after a minor altercation looking for her shoes, when someone else on the other side of the car park kicked a man twice resulting in his fatality. The Express headline was ‘Gang of animals, led by a girl killed man with a flail’. None of it was true.
And now after years of JENGbA campaigning, the mainstream press are starting to recognise that all is not what it seems. We have been saying for years joint enterprise does not ensure justice for victims. The doctrine makes further victims by incarcerating innocent people.
Which brings us to another point. Mr Grayling keeps referring to joint enterprise as ‘law’ (and Mike Penning MP in his evidence to the justice committee called it important ‘legislation’). It is neither. That is why the justice committee recommended that urgent reform to the common law.
JENGbA are disappointed that the Minister did not take this opportunity to refer the matter to the Law Commission for further consideration. However we do understand that might be difficult for Ministers for constituency reasons with a general election looming (see General Election Guidance, G2 p20).
. We have no doubts that the next Government will act on the justice committee report which Mr Grayling suggested will need to be considered.
It still leaves JENGbA with the biggest challenge of our campaign: how to get justice for those already convicted and serving mandatory life sentences. Only 10 years ago the average sentence we were seeing people receive was 15 years and now that figure is on average 25 years. The shameful situation of people being in prison serving massive sentences for a crime they have not actually committed is why JENGbA will continue to fight for our loved ones. It is why Jimmy McGovern after meeting our families wrote the excellent drama ‘Common’ screened on BBC 1 to 4.4million viewers. Last night Jimmy McGovern won another award for ‘Common’. It strikes a chord with the public, the ordinary people who know that joint enterprise makes no common sense.
JENGbA families will never give up fighting. We would have been surprised if Mr Grayling had admitted that a terrible travesty in our law system was occurring. But his response has coincided with a national protest tomorrow with families marching in Liverpool, Leeds and London. Please support us by joining us on twitter @JENGbA or on the marches.