May 10 2022

‘We’re never going to give up fighting’

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‘We’re never going to give up fighting’

From Jimmy McGovern's BBC film Common

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From Jimmy McGovern's BBC film Common

From Jimmy McGovern’s BBC film Common

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.

3 responses to “‘We’re never going to give up fighting’”

  1. Eve Smith says:

    This is great work. Can’t MPs trying to win over young voters and old, reach out to communities and make a promises to look at this if the are successful winning local seats? It would be a good incentive for them and would bring JE into the spotlight again. I would definitely vote for the party that supported a change or review of this ancient outdated and irrelevant law.

    • Christopher Lennon says:

      Eve, as electioneering material, the campaign would be a non-starter, as most people are very pleased when gang members get banged up.
      Secondly, Joint Enterprice is not a law, it is part of THE Law of the land. It is not outdated, as it is in current use and far from irrelevant.
      I am not suggesting it cannot be reviewed, as most of the Criminal Law is, quite regularly, but realistically, JE will not be swept away and JENGbA needs to make their campaign much more specific and articulate.

  2. Christopher Lennon says:

    To the extent that JENGbA is fighting for justice, they are to be commended and certainly ought never to give up. However, a review of their website and Gloria Morrison’s latest article, above, reveals breathtaking naiveté and an approach to the perceived problem that is deeply muddled.
    For example, the Group seems to have got the idea that the Joint Enterprise doctrine is not ‘law’, when of course it is the law, even if the Lord Chancellor (no less)and the Justice Minister Mike Penning MP incorrectly refer to it as ‘legislation’ and simulaneously that the common law is inferior to statute law, so what is needed is codification. They demand a referral to the Law Commission, with directions to report by the end of 2015.
    First,no one with any grasp of the Law Commission’s work could seriously imagine they could report with recommendations and draft legislation in ten months. Three to five years might be a more realistic timetable. On some topics, their deliberations have gone on much longer. Secondly, of course, as Chris Grayling pointed out, 2015 is an election year. A new government will take office after 7th May and the present Lord Chancellor cannot commit that government to an Inquiry that would extend well into its term of office, if not beyond.
    Had Gloria Morrison quoted more than a small extract from Chris Grayling’s letter, not only would the sound common sense of his explanation be apparent, but also that he is holding out the prospect of a review of the law. So JENGbA has achieved something.
    Further, why do JENGbA suppose codification of the law would achieve the change they wish to see? (and what, exactly, do they wish to see? It is not articulated.) The Common Law is not a set of medieval or Victorian customs, it is the Law of England and Wales, most of the USA, Canada, Australia and New Zealand and strongly influential in South Africa, India, Nigeria, Kenya, Hong Kong and many other countries. On occasion, codification of sections of the law has occurred, for example the Theft Act 1968 replaced the common law of Larceny, after many years of deliberation by the Law Commission, incidentally. The reason was that many modern offences, connected with credit cards, for example, had sprung up, which did not fit within the historic categories of larceny. The effect of codification, therefore, was to extend the law to take in ‘modern’ offences, not restrict it. The same might be said of the Offences Against the Person Acts, 1828 and 1861 (see now also Sexual Offences Act 2003). The Law Commission would be very slow to recommend a reform that restricted Joint Enterprise, if it is viewed as a weapon against gang violence. All the possible instances and degrees of involvement would have to be set out and penalties ascribed. Some task!
    Apart from the possibility of limited reform – and I do not rule it out entirely, any more than Chris Grayling – Gloria Morrison is concerned about those already convicted, unjustly in JENGbA’s view. She cites the case of Laura, who had been involved in an altercation in a car park and was looking for her shoes. The action had moved to the other side of the car park, where the victim was kicked to death. Of course, says JENGbA, Laura had nothing to do with the murder. She is innocent. A jury evidently thought otherwise. If you cross to JENGbA’s website, you will find numerous similar stories, all lacking any sort of detail on which to make a judgment, but all relating to convicted persons. JENGbA adds a disclaimer, as the families put up the stories, but here is Gloria Morrison using the same technique. ‘They were all out of step except my Johnny’, is how the accounts read. There needs to be a much more honest evaluation of the evidence and why these persons, individually, were convicted. It cannot be skated over, with the likes of: ‘my boy was walking home with his friends’, if actually, he was part of a gang committing a public nuisance and criminal damage and ready to commit murder if challenged.
    The central problem here is that it is very difficult to appeal against the verdict (findings of fact) of a jury, because the Court of Appeal will be reluctant to overturn the verdict, under oath, of those who had the opportunity to see all parties in court and hear the witnesses.
    It is very easy to represent someone as innocent and wrongly implicated in a television programme. Television is not reality, but the sort of outrage that occurred on a crowded Victoria Station concourse, when a teenager was chased, cornered and stabbed to death by a gang of young people, unfortunately is, in London today. And no one who lives, or has lived, in certain areas of our capital City and some other towns and Cities too, I imagine, would be surprised at the ethnicity of many of the people caught up in Joint Enterprise trials.
    The foreseeability test is harsh, perhaps, but casual loss of life on our streets is not acceptable and no young person taking up with a gang out looking for trouble should be in any doubt what they are getting involved in. The street patois is about knifing people and then someone does it. Foreseeable?
    There may well be individual cases that ought to be reviewed and possibly the CPS should look at charging procedures and judges their charges to juries, but evidence is everything in criminal law and no amount of campaigning will change the law of the land without much better reasoning than has been offered by JENGbA so far.

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