Joint enterprise in action
July 17, 2015 — Comment
Written by Josh Radcliffe
Below we reproduce an article written by trainee barrister, Josh Radcliffe, on a recent joint enterprise trial observed at Birmingham Crown Court.
To the casual visitor to Birmingham’s court twelve on any given day between early January and the end of April 2015, the importance of the proceedings taking place would likely be lost. First appearances may often be deceptive, and this is probably truer of murder trials than most other things. Murder trials can limp along for days, weeks or even months with little happening of interest to those not directly involved in them. Murder trials, peculiarly you may think, often lend themselves to being dull as ditchwater by their very nature. For a start, legal reasons relating to the credit given for a ‘guilty plea’ and the mandatory life sentence that all murderers (including, as we shall see, ‘murderers’ who are in no true sense of the word murderers) face, mean that very few people, whatever the evidence against them, plead guilty to murder. Thus most murders result in a trial, and in some cases the outcome is painfully obvious from the outset. Tellingly, many a first year law student, bursting with curiosity, walks into a murder trial expecting a feast for their senses, with excitement and intrigue at every turn. They often leave, bored, after a few minutes of hearing a bespectacled forensic scientist giving some very niche interest evidence about magnifying low copy DNA samples, and watching a disappointingly normal looking defendant fidget in the dock. Well, the trial in court twelve was not to be such a simple trial.
The defendants who found themselves facing a murder charge had, as is so often the case in joint enterprise murder trials, between the seven of them just a handful of convictions (for offences as minor as driving without insurance). They were all male, aged between sixteen and thirty four, all but one were of Afghani origin and they had, crucially, never all associated as a group together before. Indeed as a point of note, it was not until the first day of their trial, 5 January 2015, that all seven had sat together in the dock; having been arraigned (i.e. entered their pleas) at different times over the preceding five months.
The murder itself took place on 2 July 2014, on Grantham Road, a non-descript street filled with terraced houses in the south Birmingham suburb of Sparkbrook. Ikram Ullah Khan, also known as Ikram Elahi, a 28-year-old of Pakistani origin bled to death within minutes of being stabbed in the neck with a kitchen knife. This much was agreed between the prosecution and the defence; however, very little about what led up to the murder, who actually committed the murder and who should be held responsible for the murder was common ground.
The prosecution narrative was that one of the seven men to face trial, Umar Zazai, had had a dispute with a group of Pakistani men; and they called a witness to attest to this. The witness, a young man, must have left the jury confused more than anything else. He gave a very different version of events than that given in his statement to the police. It is far from unusual for a witness to depart from their statement to the police, and indeed provisions of a law dating back to the nineteenth century exist solely to govern how courts deal with witnesses who are said to have ‘turned hostile’ against the party who called them, but either way, the young man who was called by the Crown to give evidence of a motive was woefully unclear about what he had seen and heard.
The violence took place against the backdrop of the Muslim festival of Ramadan. This is important insomuch as, because they were fasting, large numbers of men congregated on the streets of Sparkbrook on the evening in question. They were shown on CCTV greeting each other in an Aldi car park. Not just the defendants I add, but literally hundreds and hundreds of men. Yes, six of the seven defendants were in the Aldi car park in the minutes leading up to the violence which claimed Ikram Khan’s life, but the prosecution burdened that fact with a probative value it simply did not have. It may make sense in the Alice in Wonderland world of joint enterprise that because the six men met up in the Aldi car park they were planning violence, even though they were among hundreds of others in the car park. At any rate, one of the seven defendants, Naweed Bashardost, was not seen in the Aldi car park and yet found himself facing a murder charge too.
The defendants were arrested in a haphazard fashion in the months following the murder. Two of the defendants were arrested on the day of the murder. Umar Zazai, the man the Crown alleged had had the dispute which led up to the murder, and another of the defendants, Naweed Bashardost, were both arrested in their hospital beds; having suffered extremely grave injuries in the fracas. Zazai, the man whom the Crown named as the principal (i.e. the person who actually carried out the murder), was hacked with machetes so viciously that the surgeon who operated on him observed that his lung and ribcage had been exposed. Bashardost had suffered equally serious injury: having been blasted in the face at close range with a sawn-off shotgun as he fled the violence. What led the police to arrest them is unclear, there were absolutely no people who came forward to identify them as parties to the killing (indeed not a single civilian, i.e. non-police, witness was called by the prosecution to support their contention that these men were guilty of murder), but they were arrested and charged within a week or so of the murder.
Next to find himself facing a murder charge was Khalid Jan, a friend of Umar Zazai’s, who had actually approached the police on the day of the murder offering his assistance to their enquiries. It is true that the police may have reasonable suspicion that a person is involved in a murder even if that person has approached them to help their enquiries, however it has been a mark of many joint enterprise murder prosecutions that witnesses to violence find themselves being arrested; which can only discourage witnesses from coming forward.
The police then arrested Sardar Khattak, a 34-year-old father of two, eighteen days after the murder. The basis for arrest was as flimsy as they come. He did not know a single one of the other six defendants, by sight or by name, was from a different ethnic group to the other suspects, did not have any of their mobile phone numbers and had had no contact with them whatsoever. He, quite simply, had the misfortune to have driven his car through the vicinity of the violence, in between cars belonging to several of the other defendants, and been picked up on CCTV. Again, the sinister semantics of joint enterprise prosecutors were deployed to turn a coincidence into a conspiracy: the Crown accepted that they couldn’t prove he knew a single one of the other defendants, and accepted that being on the Aldi car park simply made him one of hundreds of people to congregate there, but argued that his car formed part of a convoy transporting weapons and/or ‘troops’ to the scene of the planned violence. He had indeed given a lift to two men, but neither of those men found themselves facing a murder charge … belying the prosecution suggestion that he was transporting troops to the scene of what they dubbed an act of ‘medieval’ carnage.
The next arrests did not come until October, three months after the murder. A ‘person of interest’ to the police, Mujahid Chambili, had ‘fled to Afghanistan’ days after the murder. The police interest in him stemmed from him having been seen on CCTV with Umar Zazai, the ‘stabber’, and from driving his car in the purported ‘convoy of killers’. He had indeed gone to Afghanistan in July, to visit his sick wife he later told the court. He returned to the UK in October, only to be arrested on suspicion of murder at the airport. When interviewed he largely made ‘no comment’ but did identify his brother, Mirwais, aged just sixteen, and a friend of his, Ezatullah Ahmadzai, as being people in footage he was shown. This identification was enough for the police to arrest his brother and his friend. This brought the total number of people in the dock up to seven.
By the time the trial was underway the police had served a great deal of additional evidence on the defence. But, quality is much more important than quantity and, as with many joint enterprise prosecutions, the ‘evidence’ against the defendants generated more heat than light. A summary of the evidence is as follows. There were provable connections between Umar Zazai, Khalid Jan, Ezatullah Ahmadzai and the Chambili brothers (Mujahid and Mirwais); telephone records showed contact between them. This ‘evidence of association’ proves little in the real world, but is a supporting pillar for those bringing joint enterprise prosecutions in portraying the defendants as members of a ‘gang’ or ‘wolfpack’. So, five of the defendants knew each other to varying degrees. A sixth defendant, Naweed Bashardost, knew Umar Zazai very vaguely (Zazai had even saved his number in his phone under the name ‘Hamid’ not ‘Nawed’, suggesting that he didn’t even know his name). Zazai had attended his mother’s wake, and they had swapped numbers. But Bashardost did not know any of the other six defendants. And Sardar Khattak didn’t know a single one of the six defendants!
The knife was to play a central role in the prosecution case. It had been found in the forensic sweep of the murder scene, discarded in the garden of a house near where the murder took place. In the words of the forensic pathologist who conducted his autopsy, it was ‘most likely’ the knife which killed Ikram Khan, and was found to match a set uncovered in the kitchen of Zazai’s home. Analysis proved that, unsurprisingly, it had skin fragments and blood matching Zazai to a probability of 1 in 1 billion on it. It also had the blood of the deceased. Utterly overwhelming evidence that he stabbed the victim you may think? Think again, because a third DNA profile was found on the handle of the knife, belonging to an unidentified person; definitely not the deceased and definitely not Zazai or any of the other defendants. Zazai accepted that the knife had been in his car, and he accepted that it was possible one of his passengers (again, so topsy-turvy is the world of joint enterprise that his passengers did not face trial) had taken it out and used it, but he vehemently and consistently denied being the stabber himself. So, the knife yielded evidence which prejudiced more than it proved.
More such evidence was to come. The police had found evidence suggesting that there had been a large amount of mobile phone contact between the defendants, obviously with the exception of Khattak, on the day of the murder. Cell site evidence is circumstantial evidence at its most circumstantial; analysis can show that a mobile phone was used at a particular time to contact a particular other mobile phone and can show, with varying degrees of specificity, the physical location of both phones at that time. The last part of that is done by employing a method known as ‘triangulation’; where a telecommunications expert uses the relative strength of a phone’s signal relative to various radio masts to work out its physical location. In fairness, when used in urban areas it can usually be used to pinpoint a phone’s location to within a few feet. In rural areas, with fewer masts, it is less accurate. However, it has two major shortcomings: it does not prove who used the phone, and it does not prove what was said (indeed, as of 1984, quite ironically, evidence gathered by tapping phones is inadmissible in English courts). So, the prosecution could show contact was made, but not what the contact was about.
There were more fragments of evidence. Naweed Bashardost, who the prosecution claimed had been picked up by a car before the violence, was proven by CCTV to have been in Birmingham city centre forty minutes before the violence. For those not au fait with Birmingham’s geography, it is entirely possible to walk the distance from Birmingham city centre to Sparkbrook in forty minutes. The prosecution claimed he was picked up by car, he claimed he walked a particular route. A CCTV check didn’t show him walking, but nor did it show him being picked up. Again, inconclusive and unhelpful. But, quantity can be used to discombobulate a jury and to generate suspicion about a suspect without actually proving anything. Furthermore, Bashardost had had sporadic mobile phone contact with Umar Zazai throughout 2 July, but he had an innocent explanation which he gave promptly to the police when interviewed (in short, Bashardost had a trip planned to Afghanistan in early July and had agreed to take some things to a relative of Zazai’s).
The other prosecution evidence was fairly minimal. Mostly just the ‘motive evidence’ of the boy who gave the police a statement about Zazai.
So, the trial began against a backdrop of circumstantial evidence and conjecture. Empty vessels make most sound, and the evidence in this case certainly qualifies it as an empty vessel. The prosecution’s opening remarks were given ample press coverage; and Timothy Spencer QC, an imposing ex-British Army officer with a string of successful joint enterprise prosecutions under his belt certainly provided good copy. He thundered to the jury, telling them that Ikram Khan had died in ‘extreme violence’, akin to ‘medieval warfare’. Such flowery, emotive language is hardly uncommon in the speeches given by barristers, for the prosecution or the defence, but it does nothing to aid the jury in their task of discovering the truth. That Ikram Khan died a savage death was agreed by all parties, that several other people (two of the defendants included) sustained life-changing injuries in the violence of 2 July was agreed by all parties and that whoever killed Ikram Khan meant to do so was agreed by all parties: but by impressing upon the jury the sheer brutality of the murder, the prosecution tapped into their feelings of disgust and contempt for what happened, not into their logical, rational brains.
The evidence of the prosecution was paraded out over the course of the next few weeks. The Crown called a detective constable who had analysed the CCTV footage of the Aldi car park, the crucial ‘meeting point’, hundreds of times, as well as other pieces of CCTV from nearby cameras: he told the court that he could identify all seven of the defendants (or their cars) at various points. Much of what he told the court proved to be uncontentious. All seven of the defendants had accepted being within the vicinity of Ikram Khan’s murder; though Bashardost was never proven to have met up with the other defendants on the Aldi car park. The cell site evidence was produced and given to the jury in the most digestible form possible for such evidence. Other bits of forensic evidence were used to bolster the prosecution’s case. A handprint belonging to Naweed Bashardost on one of the ‘convoy cars’, his blood on Grantham Road, where the murder took place, and where he denied having been, as well as CCTV showing Khalid Jan carrying a baseball bat near to the scene of the murder and grainy, low-quality images of CCTV said to shown Naweed Bashardost at the scene of the murder. The evidence of Khalid Jan carrying a baseball bat is less important than it may seem for the purposes of joint enterprise. At this point I should add, all seven of the defendants were charged with murder, on the basis of joint enterprise (i.e. that they had done some act encouraging or assisting Umar Zazai in stabbing and killing Ikram Khan and that they had been aware that he had a knife), but all seven faced a second charge of conspiracy to commit grievous bodily harm: this charge was a conspiracy charge, not a joint enterprise charge, and related to a number of baseball bats which were recovered from cars belonging to the defendants. The CCTV evidence showing Jan with the baseball bat was adduced to support the conspiracy charge, not the murder charge.
The evidence chugged on for weeks, with the prosecution believing that they had built a strong circumstantial case that Zazai was the stabber and that the other six defendants had been present at the scene of the murder purposefully.
At the close of the prosecution case all of the defendants, with the exception of Zazai, made submission of ‘no case to answer’. In short, their barristers were arguing that the prosecution had not produced enough evidence for a jury to be sure (‘certain so as to be sure’ being the standard of criminal conviction, having replaced the older form of words, ‘beyond all reasonable doubt’) that they were ‘present and participating’.
The judge gave all six submissions short shrift. He ruled that there was evidence, against each of the six defendants, on which a jury could fairly find them guilty of murder. For those uninitiated into just how draconian the law of joint enterprise is, you may wish to pause for a moment to consider the import of that. The sort of evidence against these defendants is enough, in the eyes of the law, to support a conviction for murder; and all that comes with such a conviction. The jury do not have to be sure that a defendant played a major role in a murder to convict them, they do not have to be sure that they intended for anyone to die either: it is enough that they were at the scene of a murder (even that not being necessary in some cases) in support of a person they knew to be armed with a deadly weapon. At that point, without more, they are guilty of murder and face a mandatory life sentence. That is the state of our law.
Returning to the case. The judge having decided not to dismiss the case against any of the defendants, the defence case began. As is usual, the judge asks each defendant’s barrister if his client intends to give evidence or not. A defendant is never obliged to testify in his own defence, but most defendants do; and those who choose not to run the risk of a jury deciding to hold their decision to remain silent against them. Their barristers, one by one, confirmed that each defendant would give evidence.
Sardar Khattak told the jury he knew none of the other defendants, this was accepted as being true; that he had never been convicted of a crime, also true; that he was at least 100 yards away from where the murder took place, also true.
Next was Naweed Bashardost. Still visibly damaged by the terrible injuries he had sustained in the events of 2 July, he gave evidence to the effect that he had been in Birmingham city centre, had spoken briefly to Zazai by phone, who had asked him to take a parcel to a relative of his when in Afghanistan, and that he was walking home to Alum Rock (another south Birmingham suburb, lying just past Sparkbrook). He denied being on the Aldi car park, he denied being on Grantham Road, where the murder took place, and he had noticed that there were cars stopped in the middle of the road he was on, Farm Road (adjacent to Grantham Road), and told the court that he was simply in the wrong place at the wrong time. He was shot in the face at close range from the window of a passing car. The cross-examination he faced was relentless. The prosecution put it to him that he was a liar thirty separate times. They put it to him that he had been shot on Grantham Road, and that he had most likely been picked up and taken to the scene of the violence by car deliberately. The evidence itself was inconclusive. Bashardost’s blood was found on Grantham Road, but other ballistics evidence (namely 300 pellets lodged in the front door of a house) supported his statement that he was shot on Farm Road; as did a transcript of a 999 call made by a neutral bystander. The defence suggested that his blood, only two or three droplets, could have ended up on Grantham Road by means of ‘secondary transfer’ (i.e. where they had landed on say a baseball bat in one location and dripped off in another location).
Over the next couple of weeks, the Chambili brothers and Khalid Jan gave evidence. They all accepted being present on the Aldi car park, but denied that telephone contact between them related to a grudge Zazai had. The prosecution scored some victories at this point, namely by putting the CCTV evidence of Khalid Jan carrying a baseball bat to him, and by trying to portray Mujahid Chambili’s decision to leave the UK for Afghanistan as being sinister. All in all, at this point in the trial it was still impossible to say who was ‘winning’ as it were.
Then events took a very disturbing turn.
A juror sent a note to the judge, a very concerning note, detailing misdoings by the jury of an epic proportion. The note’s contents were read out in court only once, but their importance was lost on no-one. The juror stated that some of his fellow jurors, though how many he/she did not say, were ‘making racist comments’ about the defendants and had even gone so far as to say, ‘deliberation will only take five minutes’.
All of the defendants’ barristers supported an application for the jury to be discharged in light of these revelations of, it would seem, irretrievable prejudice by the jury. Given the seriousness of the charges it seemed to be a foregone conclusion that the judge would discharge the jury and swear a new jury to start afresh. It was, some of the barristers involved remarked, not a difficult decision to make. Yes, there are cost implications to starting again, but they would not overcome the real risk of prejudice presented. In a very similar case in the 1990s, also at Birmingham Crown Court, a judge’s refusal to discharge a jury reported to be making racist remarks about a defendant led to a stinging rebuke from the European Court, which held that the defendant’s human rights had been violated and that he had not received a fair trial.
After retiring to think about the matter, the judge came to his ruling. He would not discharge the jury, but would give a very generic warning to them that they had sworn a solemn oath to return a verdict upon the evidence. He was not even going to mention the letter.
This decision sent shockwaves through the community of people associated with the case; the barristers, solicitors, interpreters, defendants and the families. Outside court twelve the air was abuzz with talk of appeals if the defendants were found guilty after this monumental judicial misstep. But talk of an appeal to those in the middle of a murder trial is talk of a distant, rocky cove to seafarers navigating a stormy ocean; it provides no real succour. So, the focus for everyone involved was on trying to carry on fighting the case as best they could, aware that they may be pleading with a brick wall; addressing a jury which had made up its mind.
The judge gave the jury a warning which was roundly criticised, out of his earshot, as insipid, purposeless and unhelpful. He did not mention the letter that one of their number had penned, he did not mention that specific information had come to the court’s attention about inappropriate comments being made, he simply reminded the jury of their duties.
The defendants were livid. And for a period of time they refused to come up from the cells to the dock, effectively, going on strike. This left the trial in a very odd state, with curious solicitors and barristers from other cases coming to sit in and watch. The judge reminded himself of the state of the law, and concluded that he had no power to force the defendants to come up to the dock. This left the trial in limbo. Two of the defendants, Zazai and Ahmadzai, had not given their evidence.
In the end a compromise was reached. The judge gave a more strongly worded warning. However, it didn’t mention the note and it was still less than the defence felt was needed to secure a fair trial.
The final skirmishes of the trial played out in a remarkably sedate fashion, at least to begin with, having regard to the fact that the man the prosecution accused of stabbing Ikram Khan was giving evidence. The prosecution called him a liar, put the evidence to him repeatedly and he stuck to his guns; probably a draw in tactical terms. However, there was to be a final, or penultimate at least, turn up for the books.
Then came another note … from the same juror as before. It related to comments made about an individual defendant. Jurors had remarked that, ‘by the time [this defendant] gets out, his wife will have divorced him’. The defendant in question exploded in anger, understandably, and again the question of a discharge was brought up. But, this time, in spite of there being more reason for a discharge, the consensus was that there was less chance of one. The reality was that if the judge discharged the jury for the second note he would, almost, be admitting that he was wrong not to do so before. So, in spite of impassioned submission to discharge the jury, the judge declined to do so. The note sent a shot across the bow of the defendant who was named: it made it clear that there were jurors raring to convict him. Again, talk turned to appeals.
Very late into the trial, after the defendants had given their evidence, after most of the barrister’s closing addresses to the jury were over and just as the judge was about to sum the case up the prosecution announced that they had had found new evidence to disclose. The rules on disclosure of evidence are quite complicated, but, in short, if the prosecution find evidence which supports the defence case or which undermines their own case then they must disclose it to the defence; if they fail to do so, and they are found out, then the Court of Appeal will likely overturn the convictions. Accordingly, the evidence was made available before the close of the trial … but only just.
The evidence was CCTV footage of Ikram Khan, the dead man, wielding a samurai sword minutes before his death. It was crucial to the outcome of the trial, because it put the possibility of self-defence on the table in a very real way. Even if the jury were sure that Zazai was lying and that he did stab his victim, they would still have to find him not guilty if they thought it was possible (not probable, not definite) that he did so in reasonable self-defence.
The judge’s summing up of the case was, according to my very unscientific vox populi of barristers involved and other observers, straight down the line. He did not sum up for an acquittal and he did not sum up for a conviction in the cases of any of the defendants. He simply laid the evidence out and gave the jury the law.
The jurors were left, as they often are in joint enterprise trials, with a lengthy route to verdict: a spider diagram style document leading them to verdicts for each defendant. They were told that they must first consider the case against Umar Zazai. They could only find him ‘guilty of murder’ if they were: sure that he stabbed Ikram Khan; sure that he intended to kill or seriously injure him; and, finally, that he did not act in reasonable self-defence when he did so. Juries are permitted to decide for themselves what constitutes ‘reasonable self-defence’, but are warned that a defendant need not ‘weigh to a nicety’ the force used (i.e. in the agony of the moment a terrified person may do more than is strictly necessary to defend themselves). If they found Zazai guilty then they had to consider each and every defendant individually: had they done anything to encourage or assist him in the act of murder? Did they know that he had a weapon? It is here that the reality of joint enterprise was laid bare, not one of the defendants was conclusively proven to have done anything to support Zazai. Being present at the scene of the murder did not constitute supporting him, hundreds of people were present, nor did merely knowing Zazai as a friend; but in the world of joint enterprise, either might be enough.
The jury went out to consider their verdict, and a painful week long wait was in store for those involved in the case.
Days came and went. The jurors betrayed little of their feelings when one caught their eye. No indication of the verdict was, nor should have been, given. On the penultimate day of deliberation I, who had come to be a very common sight in the courtroom over the previous seventeen weeks, received a ray of hope. As I left the court a juror, rather than averting her gaze or looking on stony faced as jurors had every other time we had accidentally met eyes, gave me a brief smile. I returned it and left, pondering the likely result on my way home. Did the jury understand the gravity of what they were going to decide? Did they know they could be sending these men away for 25 or 30 years? Did they know that they might never be released? I still held little hope: a polite smile is cheap, and the notes sent by the concerned juror a few weeks earlier told a disturbing tale of the inner workings of this jury.
The next day my questions were to be answered. After five days of intensive deliberation the jury had reached unanimous verdicts. The gallery was packed to the gunwales as friends, relatives and curious observers filled the twenty or so seats assigned to the public.
The jury foreman, a serious looking man in his forties, rose. The clerk asked for their verdicts on count one for the defendant Umar Zazai. On the next word, or two words, rested the fate of seven men. ‘Not guilty’ was the reply. On the charge of manslaughter Zazai was also ‘Not guilty’. There were a total of twenty-one verdicts to be read. Seven defendants and three charges (murder, manslaughter and conspiracy to commit GBH). However, the sense of relief in the room was palpable after it became apparent that, whatever else, all of them had been cleared of murder. The prosecution had not convinced the jury that there had been a sinister plot to kill Zazai in which all seven men had been entangled. The plan had failed, this time. Often, however, it succeeds.
The jury found four of the seven defendants: Umar Zazai, Mujahid Chambili, Khalid Jan and Ezatullah Ahmadzai ‘guilty’ of conspiracy to commit GBH. The other three; Naweed Bashardost, Mirwais Chambili and Sardar Khattak, were acquitted of that charge as well and free to go.
It was perhaps at this point that I saw most clearly the human toll of joint enterprise. On the murder charge everyone had been acquitted, but it was clear that nobody was happy with the result. The defendants, in spite of having no violent convictions between them, had all been held on remand. Some had lost ten months of their lives; ten months with their families; ten months of income; ten months of liberty in all its forms. And they will receive not a penny of compensation for that. Their relations with their loved ones strained to breaking point. Throughout the trial, knowing what I knew of the jury’s behaviour, it was easy to see them as the baddies: but after the verdicts had been given, and I watched the misery these prosecutions had wrought, the real baddy was clear to see.
Read about the JENGbA Crowdfunding bid here
IRR News story: Joint enterprise, racism and BME communities
IRR News story: JENGbA welcomes call for reform of joint enterprise
IRR News story: Joint enterprise: the long and winding road to reform
Read an article in the Independent: ‘Michael Gove urged to suspend use of “joint enterprise” laws amid claims they are used predominantly against black people‘
The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.