February 01 2023

Why race is an issue in joint enterprise murder – and what are the solutions?

Why race is an issue in joint enterprise murder – and what are the solutions?

JENGbA at the Jogee ruling in the Supreme Court in February 2016

It is currently not known how many young black men are currently serving a life sentence for joint enterprise murder, nor is there a record of whether they were convicted as a principal offender, a party to a plan or as an accessory. If such material were collected it might be easier to work out how many have been wrongly convicted.

In such cases – usually relating to public violence, juries are asked to consider the criminal culpability of those present. There is currently serious concern that too many young black people are being convicted of murder when they are involved in public violence. It is argued that stereotypes and tropes contribute to framing black people as violent and police and prosecutors are overcharging through racist decision making.

Murder trials involving joint enterprise are essentially cases where the prosecution allege more than one person was involved in a killing. Commonly, in such cases, it is alleged that there was a plan to cause at least ‘really serious’ harm and everyone intended to join in either by killing, or by assisting or encouraging the killing. Sometimes the prosecution accept it was a spontaneous event but then it is alleged that those present all knew what was going on and all shared an intention for the consequence of at least ‘really serious’ harm (formerly GBH). Cases where it is alleged that it was intended to kill are rare – if an accused person intended at least serious harm and someone dies, that is enough to prove murder. The public rarely understand that the bar for conviction is so low.

One reason for public confusion is that prosecutors rarely specify the legal basis of their case and wait to see how the trial judge decides to direct the jury. Sadly, trial judges can get their directions wrong and indeed the law was found to have taken a ‘wrong turn’ for three decades in the infamous decision of R v Jogee which the BBC called ‘a moment of genuine legal history’. Hundreds of people have been wrongly convicted on the wrong law but remain in prison. More are facing trials where juries continue to be wrongly directed but leave to appeal is refused. At the core of this problem is a case called Johnson.

  • It is the Johnson case where the Court of Appeal implemented the direction from the UK Supreme Court that those affected by the error of law in ‘joint enterprise’ would have to prove they would not have been convicted had their jury been properly directed, rather than being given access to a retrial before a properly directed jury. It was said that this was a ‘change of law’ situation – where the law changes but those properly convicted under the law at the time stay where they are. But this was not a change of law – it was a correction of a serious error.
  • It is the Johnson case where the Court of Appeal failed to require prosecutors to be precise in how they present their cases but instead effectively required defence counsel to anticipate any potential theory the prosecution could suggest.
  • It is the Johnson case where the Court of Appeal decided that it was for an accused person to prove they would not have been convicted, even if their jury were wrongly directed, where those directions must be followed.
  • It is the Johnson case where the Court of Appeal held that if leave to appeal was refused, the Supreme Court is ‘functus’ which means that there is no route to the UK’s highest court to consider injustices.
  • It was the Johnson case where the Supreme Court rejected that the refusal of leave process is not discriminatory.
  • It is the Johnson case where the Ministry of Justice have not decided on a petition for mercy which raises the race issues in the criminal justice system.
  • It is the Johnson case that is going to the Criminal Cases Review Commission (CCRC) to consider whether there is a route to exoneration or at least a recommendation to the MOJ for a reduced sentence through mercy.

Put shortly, both Johnsons were black youths who were convicted of murder by what is known as ‘joint enterprise’. Neither caused the fatal injury. They were alleged to have been part of a gang who lured the deceased (from a rival gang) to a car park where he was stabbed to death by a third party. They played different roles, seen on CCTV, and one may not have known there was a knife at all. Their jury was wrongly directed on the law and not directed at all on potential defences. It is obvious that their convictions are unsafe. Nonetheless, both are subject to life sentences with massive minimum terms, and they were refused leave to appeal.

In such cases, there are essentially FOUR questions:

  • (i) Was each accused person properly and fairly convicted of being complicit in murder? This involves properly directing a jury on how the law works including on knowledge of what someone else might do, on the terms of any plan and any withdrawal. It makes a difference if the use of ‘really serious’ harm was not known, authorised, outside the scope of any authority or beyond the contemplation of a person in the accused person’s shoes.
  • (ii) Was the issue of manslaughter properly considered at trial, particularly if the legal directions were inaccurate and would a finding of manslaughter, given the errors, be a more just outcome? It makes a difference if there was a plan to cause some harm, not ‘really serious’ harm as, if death results, this is manslaughter, not murder.
  • (iii) Should their sentences be mitigated because they were not the killers and/or because they have been refused access to a retrial before a properly directed jury? Currently the law allows for all to be treated the same and it means young black people are serving over 20 years before they can apply for parole and remaining on life licence, for a killing they did not directly commit and after a conviction before a wrongly directed jury.
  • (iv) To what extent can it be determined that racial discrimination has played a factor in the law and policy that leads to black youths like the Johnsons being labelled ‘murderers’ and imprisoned for life? It shouldn’t make a difference what colour or culture an accused person has but research shows that police and prosecutors label black people as gang members, even when they are not and courts are admitting evidence of black musical taste as an issue of bad character.

The Johnson case alone demonstrates that the criminal justice system of England and Wales is in dire need of reform. In the absence any meaningful change, the power to pardon young black males who inevitably suffer racial discrimination in criminal justice should be exercised, particularly for those like the Johnsons who were affected by errors in the law of complicity and errors at trial and on appeal. Ultimately both the Johnson’s are serving life sentences for the death of someone they did not directly kill. The available research demonstrates that the label ‘murderer’ lacks legitimacy and mandatory life sentencing is overly harsh.

Young black people like the Johnsons are overrepresented in the joint enterprise prison population in ways perhaps unseen in any other aspect of the UK criminal justice system. As work is done to divert young people away from the youth court, the number before the senior courts seemingly increases. Rather than address the systemic failure, ‘supercourts’ are built to hold multiple people in the dock lined up and labelled ‘gang’. The Lammy Report found that the system is discriminatory, but nothing has been done to combat the risks of discriminatory approaches during investigation, trial, and appeal where those serving joint enterprise life sentences are believed to be disproportionately people of colour.

Where current approaches allow implicit racial bias to go unmonitored and unchecked, they warrant closer scrutiny and present opportunities for change through legal reform but also by changing outcomes for individuals affected. As the effects of racial bias on every aspect of the criminal justice system have become increasingly well documented and understood, opportunities for meaningful change must not be closed by the courts and, if they are, the Executive can operate to militate through the power of pardon. It is necessary to acknowledge racial bias and how its effects on the criminal justice system have flourished creating a mechanism whereby black youth are frequently locked out of fair trial processes and into prison. These widespread issues must be acknowledged and not hidden by a ‘case by case’ approach.

Black youth have more encounters with the police, are more likely to remain silent and in joint enterprise are at risk of being wrongly convicted. The Johnson case draws attention to how prosecutors and courts fail to fairly determine guilt, innocence, and punishment. Juries are not currently given the opportunity to consider racial disparity or profiling issues, including any racial profiling by investigators or prosecutors or in any defence approaches. Evidence of the impact of joint enterprise law on black youth and the general existence and effects of implicit bias against black people in reaching verdicts is capable of providing a foundation to challenge state policies tat lead to state prosecutions. This could be vital in racial profiling cases where so called ‘gang’ databases / police ‘gang’ evidence and the use of rap music / other cultural tropes, including animalistic language such as ‘pack’ is used in joint enterprise trials. It may well influence change that would allow the charging of alternatives such as manslaughter or violent disorder or affray, rather than putting all the black people present on trial for murder and risking inherent bias in court.

At a minimum, the following changes need to be urgently made:

  • (i) The GBH rule should be separated out from intention to kill so that the basis of any conviction is clearer, thus allowing reduced sentencing for those who do not intend to kill or to assist or encourage a killing.
  • (ii) Mandatory sentencing should be abolished.
  • (iii) Sentences for those who are known not to have delivered a fatal blow should be significantly reduced.
  • (iv) Legislation drawing adverse inferences from silence should be abolished – it wrongly allows criticism of black people for silence in police questioning and at court when institutions are currently not trustworthy for black people and stakeholders have been found to be institutionally racist.
  • (v) Legislation on ‘bad character’ needs to be confined to ensure it is not targeting black people for cultural difference. Character is a phenomenon that has no place in a modern criminal justice system – the focus should be solely on tendency or coincidence.
  • (vi) Legislation should be introduced to ensure ‘inferences’ from evidence cannot not be drawn without evidence of racial impact, implicit bias against black people in reaching verdicts and any racially disparate impact.
  • (vii) Police and lawyers and the judiciary need to be retrained on racial bias and judicial directions should be developed to provide for ‘myths and stereotypes’ directions that educate juries on the issues of race in the criminal justice system, particularly those identified in the Lammy report.
  • (viii) Data must be mandatorily collected as to how ‘joint enterprise’ cases are being approached, from the investigation to the appellate stage. This should include an audit of prisons to identify those affected, especially those serving life sentences.
  • (ix) The test for leave to appeal must change to give all those affected by court errors access to justice through a retrial before a properly directed jury, a conviction for a lesser offence or exoneration.

It is a serious concern in such cases that too many young black people are labelled with ‘murder’ for crowd/ group violence and the courts are either not addressing the issue or leaving it as an issue for policy. The growth in life sentences in the UK, particularly for black youth is a scandal which is a significant driver for an increase in the prison populations and raises serious questions regarding the fairness and proportionality of their use. For the Johnsons at a minimum a sentencing reduction would enable their immediate release after many years imprisonment on the wrong law.

Not to create a fair trial system for black people plainly brings the whole system into disrepute. The use of the power of pardon (through petitions for mercy) alone that would provide both mercy for individuals and some hope for a more balanced approach for black people. The Johnson case tests the criminal justice system for black people, particularly those alleged to be complicit in someone else’s crime. When miscarriages do happen, the state must ensure there are quick and effective mechanisms in place to correct them. The Johnson cases is a paradigm example of how the law on joint enterprise went wrong, mandatory life sentences can go wrong, how appeal courts seeking finality have affected access to justice and how the Executive, through the CCRC or the Royal Prerogative of Mercy, must correct legal wrongs.