During a parliamentary debate on 25th January 2018 MP’s from both Government and opposition parties expressed clear concerns regarding the use of joint enterprise laws. This debate is particularly welcome as the failures that have shaped the problematic use of these laws over the last four decades have been both legal and political.
Two years ago now, in February 2016, by overturning the conviction of Ameen Jogee, the Supreme Court recognised that the law had taken a ‘wrong turn’ in the 1980’s, confirming the realistic possibility that miscarriages of justice have occurred. Yet redress has not followed, and innocent people remain trapped in the penal system serving life sentences for offences they did not commit.
The clearest cases where a miscarriage of justice can occur are where an individual has been convicted under Joint Enterprise laws as a secondary party, by way of their association to another person or events, rather than their evidenced actions or intent. Such events are often spontaneous acts of violence. Our research demonstrates that this can commonly include individuals not present at the scene of the crime, or who have withdrawn from the incident at an earlier time, demonstrating that they did not encourage or intend the more serious offence that followed.
Our research further reveals how the prosecution narratives that support such convictions are shaped by racialised, gendered and class assumptions about crime and dangerousness. In a national study, we examined in detail the processes through which joint enterprise laws have resulted in the disproportionate conviction of young black men.
In the cases we examined a key strategy for shaping this collective intent is the narrative of a criminal ‘gang’. Yet the claims made are often disputed and such arguments appear not to require proof in court, they can merely be assumed – frequently drawing upon images from social media, community and familial relationships or bad character assessments by local police (again without evidence or previous convictions to support the legitimacy of such claims).
The cross party-agreement reflected in last week’s debate indicates a collective will to provide redress. This is significant, as whilst it was the law that took a ‘wrong turn’, a central driver in the re-emergence of this Victorian common law has been political priorities driven by a law and order rhetoric. Support for such a ‘draconian law’ that may result in wrongful convictions was most clearly expressed by Lord Falconer in 2010 (on BBC Radio 4), but has been echoed by other politicians keen to win votes, who argue the merits of collective punishment as a deterrent for ‘gang’ crime.
We must expose the flaws in this argument. Official data demonstrates that less than 5% of serious young violence in London is ‘gang related’. Analysis in Manchester revealed similar disconnects between the policing of ‘gangs’ and the reality of serious youth violence in the city. This is important as whilst we are locking up innocent young people, violent crime is increasing. As reports came again last week of an increase in recorded violent crime, knife crime specifically, the remarkable failure of such tactics are confirmed. Instead of contributing to a strategy that can reduce the harms caused by violence, these laws are destroying more young lives and devastating families and communities.
The injustice continues, as cases bearing all the hallmarks of our research continue to be tried using joint enterprise laws. It was one such case in Manchester last year that drew the attention of Lucy Powell MP. Eleven of her constituents, all young and black or of mixed-race, the youngest just 14 years of age, received a total 168 years in prison.
With the support of others, some of whom have been engaged in calls for reform over a number of years, the politicians have once again brought this issue to the public’s attention. The Conservative MP Bob Neill suggested that the government have placed the issue of miscarriages of justice related to joint enterprise laws in the ‘too difficult to do pile for far too long’. The government must now commit to a process of redress.
This blog post, written by Becky Clarke, is a version of a news article originally published in The Times on 1st February 2018.