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Tenuous evidence, unjustified inferences

Media and public reaction to the publication of the report of the Commons Justice Committee on 17 January 2012 on the joint enterprise law has been extensive. Those of us working in organisations which try to help victims of apparent miscarriages of justice have been aware of a trickle of joint enterprise cases for years, but recently the trickle has changed into a flood. The sheer numbers of cases led to the creation of Joint Enterprise: Not Guilty by Association (JENGbA), which aims to raise awareness of the numerous injustices caused by the application of this law, help its victims who are serving long prison sentences for crimes they did not commit, and if possible to change the law itself.

Why has this flood overwhelmed us? The development of what is no more than a common law doctrine through appeal decisions and judicial practice over the last two decades has been overtly policy driven, with the result that it has become an effective and valued policing tool. Investigations of serious crimes – typically murders – become the rounding up of a number of suspects, tenuously connected to the crime (they were present at the scene, they exchanged mobile phone calls with someone present or had some other loose connection). These suspects are threatened with serious charges, threats which are effective because the same tenuous evidence is sufficient not only for reasonable suspicion of possible involvement but for conviction itself. Some suspects may escape charges by implicating others. Other suspects may have no such bargaining assets to offer, due to ignorance of what happened. They may be tried and convicted. The crime is cleared up with little need for further investigation. Joint enterprise has rightly been called a ‘lazy law’.

Joint enterprise is a legal doctrine developed by the courts over more than 400 years but modified over the last two decades. In its modern form, it says that anyone involved with others in a joint criminal enterprise is responsible for any crime committed within the ‘scope’ of that enterprise by another member of the group, which she or he could foresee might be committed. The group member who does not directly commit the crime is guilty of the same crime as that committed by the actual perpetrator. There are many explanations of the doctrine available online – for example by Francis Fitzgibbon QC on www.thejusticegap.com HERE. All such explanations assume that the problems presented by this doctrine relate to degrees of culpability, and that everyone found guilty actually is guilty of something, although perhaps not of an offence as serious as that of which they were convicted. The Law Commission, the Justice Committee, judges, lawyers and legal academics endlessly chew over the problems of culpability. But this is far from being the most significant problem created by the use of the joint enterprise law or the cause of current concerns.

Most of those seeking help from JENGbA and its sister organisations told us that they were not guilty of any crime at all: that they were present at a crime scene but not associated with whoever committed the crime, that they did not know the crime might take place, that they were not present at all at the crime scene and knew nothing about the crime, or even that they themselves had been victims of serious assaults but had not retaliated, while their assailant had subsequently become involved in an unrelated fight as a result of which he had died.

Explaining why they thought they had been wrongly convicted, they consistently gave reasons which can be summarised in three categories.

  • The evidence against them was tenuous and questionable.
  • The inferences which juries were invited to draw from the evidence could not be justified.
  • Their lawyers failed to explain the law to them, and seriously underestimated how easy it was for prosecutions to succeed in joint enterprise cases, resulting in failure to defend cases adequately.

To a limited extent these are already known problems. Many lawyers opine that in joint enterprise cases ‘the evidential bar to prosecution is set too low’ and that it is far easier for the prosecution to secure convictions in joint enterprise prosecutions than in more conventional prosecutions which rely on thorough forensic investigations. But beyond this, the territory of evidential sufficiency and case construction remains unexplored.

A close study of appeal decisions and their effect on how cases are investigated, prepared and tried exposes that it is the development of the doctrine that has resulted in the admission of tenuous evidence and enabled judges to assure juries that they may draw inferences of guilt from such evidence alone. The starting point of modern development is Chan Wing-Siu v The Queen [1985] A.C. 168, 175 which introduced the simple requirement that evidence of foresight of what someone else might do in the course of a joint criminal enterprise is sufficient for conviction of a defendant for whatever crime is committed by the other person. Proving a defendant’s knowledge of the possible actions and intentions of someone else who might be no more than a casual acquaintance has become simple in our courts: the inference that presence at a crime scene, or a phone call at the relevant time, provided encouragement to a perpetrator, can be sufficient.

The Justice Committee’s principal recommendation is that consultation for legislation to clarify the joint enterprise law should be based on the Law Commission’s proposed draft:

‘[W]here two or more persons participate in a joint criminal venture, if one of them (P) commits an offence, another participant is also guilty of the offence if P’s criminal act falls within the scope of the venture. The existence or scope of a joint criminal venture may be inferred from the conduct of the participants (whether or not there is an express agreement).

It’s a dangerous starting point: the opportunity to draw epistemologically illegitimate inferences from tenuous evidence would be embedded in statute.

Perhaps legislation is not the way forward at present. The Justice Committee also asks the Director of Public Prosecutions to draw up prosecutorial guidelines, due to worries that the application of the law may be deterring witnesses from coming forward due to (very reasonable) fears that they may be prosecuted themselves. DPP Keir Starmer has promised to do so. Since the fear of prosecution can only be due to widespread knowledge of how easily innocent bystanders may be wrongly convicted of the most serious of crimes, we can only hope that at last the problems of evidential sufficiency and legitimacy of inference will at last be recognised.

If so, the grass roots campaigns and JENGbA in particular can claim credit for bringing these problems to the attention of the Justice Committee and hence to the DPP. We can only hope that he will acknowledge the mistakes of prosecutors in the past, consult JENGbA, and issue guidelines which will help to stem the current flood of miscarriages of justice.

 

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Andrew Green Posted by on January 20, 2012. Filed under Crime,Human rights. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

5 Responses to Tenuous evidence, unjustified inferences

  1. Anonymous Reply

    March 26, 2012 at 9:24 am

    Public protection is the banner flying to recommend the joint enterprise doctrine, a powerful deterrent to champion the rights of the victim and quench the thirst of those baying for blood. The media visit the crime scene and through the various mediums of communication reveal the blood and gore of what has come to pass, followed by a media frenzy in every newspaper and on every T.V channel, showing the pain of the victim’s family, and their cry for justice. Who wouldn’t be moved? But what media group would dare to put the case for the defence? Images of the victim and their family’s plight are embedded into our minds and are likely to be projected onto not just that case, but any similar case. None of us are impervious to some degree of media indoctrination? In the worst case scenario a central tenet in ones thinking may be formed. When this happens, often this particular case is cited to justify a general point of view, even though the case they cite has completely different circumstances to another case in contention. There are several triggers that are likely to unlock these empathetic irrational emotions but none more so than the word “gang”.
    The Chan Wing-Siu v The Queen [1985] A.C. 168, 175 that you mention, (arguably) has no real defence available to argue against it? The Law commission dispute this and say it does have a possible counter? But we seem to have moved back in time to pre 1957 homicide act, and the abandonment of the concept of constructive malice? But It appears to have been resurrected, the concept of strict liability is alive and well and living in the precedent of “Chan Wing-Siu v The Queen [1985] A.C. 168, 175”.Sir Robin Cooks defeated argument was in my view the right and correct position. That the judge should have emphasized that the requisite foresight had to be of a ‘real’ or ‘substantial’ or ‘serious’ possibility of intentional killing or infliction of really serious injury.”
    I was horrified to learn recently that the principle actor in a joint enterprise could theoretically have a partial defence of say, provocation or duress, meaning they could be found guilty of manslaughter not murder. That is not wrong but the lesser culpability should be reflected to secondary parties as well but the secondary non principle would not have this partial defence available to them. So they could be found guilty of murder, yet the perpetrator of the act could be found less guilty? The secondary party could also be proved guilty with less of a mens rea than the requirement for the principle?
    WHAT A MESS THE LAW IS IN!

  2. Anonymous Reply

    March 27, 2012 at 11:10 am

    The joint enterprise doctrine does have a place in our country .There are examples where it can be justified and the public benefit from the existence of that doctrine. This is the view I have come to accept over some years. An act of barbarism causing a death, the victim’s family demanding all responsible for this outrage (be their part large or small) face the full measure of the law. The victim’s family are shattered, but they seek solace through the convictions of all.
    But this is where our views part company. The victim’s family are indeed entitled to justice, but they seek the conviction of all who were present, and this is by no means the same thing as holding only the wicked responsible, proven with solid evidence of their acts or deeds?
    Are we to send man/women to a life sentence merely on spurious evidence?
    Never were public concerns regarding the application of joint enterprise doctrine more apparent than in the cult 1953 case of Derek Bentley. The cruelty surrounding this case in particular, led to the 1957 homicide act abolishing constructive malice. Complaints that some remnants of that doctrine remained were dealt with in the criminal law act 1967.Those changes severed those strict liability elements .In other words, you cannot be held responsible merely by circumstance when you may have a perfectly acceptable defence.
    There have been since 1967 many changes in the law through legal precedence’s. But none more so than; in 1985 a legal precedent was about to undo all the previous good work?
    The Chan Wing-Siu v The Queen [1985] A.C. 168, 175.This cruel and narrow precedent brings us back to a strict liability mentality. Further changes in the criminal justice act 2003; make a conviction far more likely.
    The problems with our common law are many. America In 1962 began moving away from common law principles recognising these problems, and the Model Penal Code (M.P.C) was born and is now used in two thirds of the U.S.
    An important feature is that under the MPC, any action not explicitly outlawed is legal. This concept follows the saying, “That which is not forbidden is allowed” as opposed to “That which is not allowed is forbidden.” The latter example has been likened to Nazi Germany.
    It is this feature that would disqualify some J/E murder convictions in this country.
    There must be a predicate” forbidden” offence that is illegal for a murder charge to be made!Or there is no “Actus reus”.At the moment that position is not shared in the U.K “and that is the problem!”

  3. Anonymous Reply

    March 27, 2012 at 1:14 pm

    The joint enterprise doctrine does have a place in our country .There are examples where it can be justified and the public benefit from the existence of that doctrine. This is the view I have come to accept over some years. An act of barbarism causing a death, the victim’s family demanding all responsible for this outrage (be their part large or small) face the full measure of the law. The victim’s family are shattered, but they seek solace through the convictions of all.
    But this is where our views part company. The victim’s family are indeed entitled to justice, but they seek the conviction of all who were present, and this is by no means the same thing as holding only the wicked responsible, proven with solid evidence of their acts or deeds?
    Are we to send man/women to a life sentence merely on spurious evidence?
    Never were public concerns regarding the application of joint enterprise doctrine more apparent than in the cult 1953 case of Derek Bentley. The cruelty surrounding this case in particular, led to the 1957 homicide act abolishing constructive malice. Complaints that some remnants of that doctrine remained were dealt with in the criminal law act 1967.Those changes severed those strict liability elements .In other words, you cannot be held responsible merely by circumstance when you may have a perfectly acceptable defence.
    There have been since 1967 many changes in the law through legal precedence’s. But none more so than; in 1985 a legal precedent was about to undo all the previous good work?
    The Chan Wing-Siu v The Queen [1985] A.C. 168, 175.This cruel and narrow precedent brings us back to a strict liability mentality. Further changes in the criminal justice act 2003; make a conviction far more likely.
    The problems with our common law are many. America In 1962 began moving away from common law principles recognising these problems, and the Model Penal Code (M.P.C) was born and is now used in two thirds of the U.S.
    An important feature is that under the MPC, any action not explicitly outlawed is legal. This concept follows the saying, “That which is not forbidden is allowed” as opposed to “That which is not allowed is forbidden.” The latter example has been likened to Nazi Germany.
    It is this feature that would disqualify some J/E murder convictions in this country.
    There must be a predicate” forbidden” offence that is illegal for a murder charge to be made,Or there is no “Actus reus”(guilty act).At the moment that position is not shared in the U.K “and that is the problem!”
    MURDER JOINT ENTERPRISE; examples of a predicate offence being present (and satisfying the
    “Actus reus requirement”) and thereby justifying a case to answer for the greater charge of murder, a charge often based on the cone of violence argument. (Arguably, being a natural consequence of foreseeable consequences)
    A burglary gone wrong, a beating gone wrong, the getaway driver in a robbery, a mugging gone wrong.
    But what of the young man hanging out with his friends and one of his friends gets into an altercation that ends in death. He has no predicate offence to justify a charge of murder? Only an assumed “Actus reus”often with little if any concrete evidence to justify this assumption.
    Guilt by accusation alone. Hanging around with bad company is stupid, but it does not and should not constitute an offence.

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