On October 22 2014 Alison Saunders, Director of Public Prosecutions and Mike Penning MP, Justice Minister, gave evidence to the Justice Select Committee’s follow up Inquiry into Joint Enterprise charging and prosecutions. JENGbA had previously given evidence in the first session in 2011 and also to this further inquiry on September 3 2014.
The change in the atmosphere with the Committee this time was palpable. In 2011 most of the MPs on the Committee had not heard of joint enterprise until our campaign forced it onto their agenda. Certain Committee members were even agitated that we had the audacity to suggest that miscarriages of justice were a common occurrence in our justice system. You see for a country like ours, who prides itself on having one of the best justice systems in the world, any exposure that this is indeed a myth is deeply troubling.
For this session the Justice Select Committee asked us to look at two areas: firstly whether the DPP guidance (issued in 2012) on charging decisions and prosecutorial policy has made any difference; and, secondly, whether the Law Commission’s proposals relating to joint enterprise (in its Participating in Crime report PDF) should be implemented by reforming the law into statute.
The DPP was up first and it is honestly difficult to work out whether Alison Saunders is deluded or disingenuous. She pointed out to the committee that she was a civil servant and also an Under Secretary of State, not really sure why, unless it was perhaps to clarify that the opinions given were not necessarily her own. Apparently the aim of the guidance was to ‘help prosecutors in their role’ and ‘improve the way they behave’.
- You can read about joint enterprise elsewhere on www.thejusticegap.com here and watch our interview with Jimmy McGovern and his film Common which explored the issue here
Who exactly is she talking about here? Highly educated lawyers who hardly need any ‘help’ in our adversarial court system determined to get a result. She claimed that there are robust procedures in place to ensure that the ‘test’ to go ahead with a prosecution is based on ‘evidence’.
Really? JENGbA’s own cursory examination of cases taken to court this year alone shows many, many cases where, mainly, young men are held on remand for up to a year and which do not result in a conviction, which means that the ‘test’ is evidently not strong enough.
The reality of joint enterprise
We know of a case where three young men were charged with a murder, the ‘evidence’ against two of them was that they received a phone call from the suspected principle after someone had been shot. The judge in that case berated the prosecutor by telling him that he needed to prove exactly what it was that the defendants were supposed to have done in committing the murder (his answer to the judge was ‘not in joint enterprise’). Luckily for those two boys the judge was having none of it and they were acquitted, otherwise they would have been sentence to the minimum mandatory of 30 years. One of those lads’ mum died five days before he was acquitted and he has been constantly harassed by the police ever since.
The DPP also stressed that they do not prosecute people on the periphery of a crime, that there has to be evidence that they participated or encouraged the offence. What if you are not even there like the previous scenario or as in lots of the cases JENGbA represents.
This idea that innocent bystanders will not be prosecuted is again a nonsense when the police’s own film that they take round to schools to educate children about joint enterprise states that ‘if you are there and you do nothing to stop a crime occurring you too can be charged’. Dangerous and unhelpful advice when in the instance of a spontaneous outburst all present can be charged because they should have known better than to be in the wrong place at the wrong time. That is the reality of joint enterprise charging.
The DPP went on to suggest that the guidance gave prosecutors the ‘thought process’ they should go through when deciding whether to charge. However defence practitioners tell us that 10, 15 years ago they simply would not progress with a prosecution based on little or no evidence but now even some defence solicitors want cases to go to trial as it is a way of ensuring they make the most money. Shocking you might think but this was reiterated by Dr Matt Dyson in his supplementary evidence.
The DPP cited the Steven Lawrence case as a good example of how joint enterprise can work – since they did not know who wielded the knife, two of the five men charged are now serving life for his murder.
Joint Enterprise charging was in place 21 years ago when Steven was murdered. Why was it that all five were not charged with his murder since all present can be convicted of murder? Yet it takes 20 years, a massive campaign by the Lawrence family to expose the endemic racism and corruption in the Met, reversing double jeopardy and the lazy doctrine of joint enterprise to get two of them. Result!
And every member of the establishment who holds joint enterprise in esteem will use the Lawrence case to claim it is a vital tool of law enforcement. If police corruption had not been part of the initial investigation then they could have actually charged all five – and probably found evidence of who participated in the attack.
And no-one should be surprised that police corruption, withholding of evidence, using testimony of actual criminals, changing witness statements, paying huge amounts of money to witnesses to corroborate the Police version of events, are all constant common denominators in joint enterprise convictions.
When asked whether the guidance follows the test for young people and those with disabilities, the DPP said the judges do take into consideration the age of children and whether they have disabilities or not. Well, that explains the very recent case in Liverpool where one child was just 14 years old with severe ADHD, who was not the principal but is now serving a life sentence along with three other children, because he was there when another boy stabbed the victim in the leg.
JENGbA have many cases with Asperger’s (one currently in Broadmoor because the YOI he was in did not know how to cope with him), autism, severe learning difficulties and ADHD – mostly young boys.
Which begs the question, how in the instance of a spontaneous violent attack often over in seconds, can a child with any of these disabilities process what his intentions or foresight would be? Having said that, in a spontaneous attack, how can anyone share the same foresight and intention that something seriously wrong might happen. It is a nonsense and Alison Saunders knows it.
She even said that judges throw out cases when they feel the prosecutors have not presented enough evidence to justify a case. Oh really? Like in the case last year where 10 young men, all Afro Caribbean were in the dock. There had been a stabbing in a nightclub in Manchester and because the CPS could not identify from CCTV footage when the stabbing occurred they rounded up these 10 and charged them all. The judge looked at the footage for three days, the prosecutors could not identify any of the individuals, the judge attempted to throw the case out through lack of evidence but the CPS challenged that decision by judicial review in the Royal Courts of Justice. The decision to throw the case out was overturned because, even though the judge could not make any sense of CCTV footage, nor could the experienced prosecutors. The Judge decided that the Jury could decide. All 10 were found guilty and are now serving 137 years between them.
Saunders also stated that the CPS ‘do not look to charge the most serious offence – we look to charge the most appropriate offence’. Since JENGbA know of cases where it is simply easier to charge large groups without any real evidence against individuals but the ‘group’ is deemed ‘criminal’ by its numbers, this too is simply not true.
The most galling part of what we listened to from the DPP and then Mike Penning is that they think the general public (and JENGbA families) are stupid because we cannot possibly understand the complexities of the law so we should accept what they say as fact.
‘Not very legalistic’
Mike Penning kept talking about joint enterprise as ‘legislation’. He used that term throughout his evidence until the chair Sir Alan Beith corrected him that joint enterprise was not legislation but a legal doctrine. Mr Penning said that he was ‘not very legalistic’. Why is he a justice minister then? It doesn’t seem to worry the Coalition that the most senior positions in the Ministry of Justice do not have any legal background or even legal expertise themselves (see our Lord Chancellor, Chris Grayling).
I couldn’t stay to listen to all of the Justice Minister evidence in person as we had promised to support a case in the Appeal Court being heard at the same time.
Hollie Robinson was 16 years old when her father had been stabbed by her sister’s boyfriend. She had already been turned down by the single judge on conviction and 20 year sentence. Her legal team were so convinced by her innocence they took the case to the three judges making strong legal arguments against her participation and the flawed use of joint enterprise. She did not murder her father nor did her sister who got 22 years. They had gone to their family home to retrieve their mother’s jewellery, albeit while he slept. The argument was that it was not joint enterprise murder because they had gone with a different plan, to retrieve their property. They also argued that since Hollie was only 16 at the time she would not have properly understood what joint enterprise was and the foresight element was not present as their intention was totally different to the outcome.
Hollie was naïve, it was a naïve plan and one that went horribly wrong and ended in the death of her father; but she did not kill him, nor did her sister, but they are serving 20 and 22 years and have to deal with the added tragedy of the loss of their father.
The three judges knocked her back. I have attended countless appeals and cannot fathom how these judges sleep at night, so bizarre are some of their decisions in the face of natural justice. So when Alison Saunders and Mike Penning both suggested the ‘right’ decision is being made to charge in the first place, because they secure convictions and both were satisfied that the appeal court agrees with the judicial process, they know exactly why this is. This is the establishment not allowing any precedent through with joint enterprise because as soon as someone proves that it is not possible to have ‘possible’ foresight the doors will open for other appeals. The legal arguments in joint enterprise appeals are based on the fact that no evidence existed in the first place and it is hardly surprising that 22% of appeals in 2013 were joint enterprise but since 2004 only 1 conviction has been quashed after a referral from the CCRC.
When asked if this doctrine is not in danger of contaminating our justice system, Mike Penning said he was not convinced. Obviously this is the Government line and the current tragedy of joint enterprise miscarriages of justice are not entirely the Coalition’s fault. That goes straight back to the previous government who follow that same old mantra to be ‘tough on crime’ and win votes.
Labour brought in the mandatory sentencing, which the public are still not aware of. They have no idea that you do not need any mens rea (mind to kill) or actus rea (act of killing) to be convicted to a life sentence. But the public are learning because JENGbA exists and we are relentless in our pursuit for justice for our loved ones.
All the campaigners who attended the Select Committee came to the Royal Courts of Injustice as soon as the evidence hearing was over to support Joanne, whose two daughters are Hollie and Ashleigh. Although there were some tears, there is a sense that if they keep knocking us down we will get up stronger, and as we grow in numbers and sadly we are, the government will have to take stock and do something to restore the public faith in the Police and the CPS that natural justice must exist for every member of society and not just for those who can afford it.
Author: Gloria Morrison
Gloria is a campaigner for JENGbA, Joint Enterprise Not Guilty By Association