Joint enterprise, racism and BME communities
February 1, 2012 — Interview
Written by Liz Fekete
An interview with Gloria Morrison, Campaign Coordinator of JENGbA (Joint Enterprise – Not Guilty by Association) which is a prisoners’ support group made up of the friends and families of people convicted under the doctrine of joint enterprise.
Liz Fekete: Since its launch in 2010, JENGbA has pointed out that the law on joint enterprise is a mess, and that hundreds of people have been convicted of serious crimes, such as murder, that they did not commit. Now, following public hearings in October 2011, the Justice Select Committee has called for reform on the grounds that ‘the lack of clarity … on joint enterprise is unacceptable’. Do you see the Committee report on joint enterprise as a vindication of your campaign?
Gloria Morrison: Absolutely! What you have to realise is that for a long time it was virtually impossible to get our voice heard. One problem is that the law is extremely complicated. The doctrine of joint enterprise, also known as common purpose, forms part of the laws of secondary liability which has evolved through common law. In cases of murder it holds that the secondary party is liable for murder on the basis of foresight of the principal party’s action. It’s all very technical, and there’s all sorts of caveats, and qualifications. So if it’s really hard to get people to understand what the law’s about, it’s going to be hard to get your criticisms across.
But there is a second, much deeper problem, here. There is a lot of anger directed against campaigners against miscarriages of justice if those campaigners are friends and families of those convicted for serious crimes, especially murder. We are always mindful that these crimes have victims, and that murder is a heinous crime. So it’s not easy for a prisoners’ support group to get its voice heard, particularly if many of the cases it deals with are convictions for murder. But we are a grassroots campaign and there are a lot of us. We just kept hammering away, and we forced the issue. To be fair though, ever since the (then) Lord Chief Justice, Lord Phillips stated in 2006 that the law was unfair, there has been a lot of disquiet in the legal world about joint enterprise, and a legal campaign has run parallel to ours. The Committee on the Reform of Joint Enterprise was set up by lawyers and eminent legal people, and they said that the application of joint enterprise was a mess. But we do believe that the issue would not have been taken up by the Justice Select Committee if there hadn’t been a grassroots campaign.
Tell us how the law affects BME communities specifically.
GM: Well, let’s first look at the data. (A vexed issue in itself, as the government does not keep any data on joint enterprise convictions, which makes it hard to categorically prove that it’s a discriminatory law.) When JENGbA gave evidence to the Justice Committee in October, 256 people challenging their convictions under the laws had contacted us. (Since then, we are getting between five to ten new cases a week.) But if you take this original data, you find that of these 256 cases, 152 are from BME communities – African-Caribbean, Asian, Irish, Travellers etc. This also reflects the areas of the country where the police and CPS have a greater tendency to use joint enterprise. While the families we represent come from all over the country (save the south-east, we don’t have any cases there), it is in the bigger cities – Bradford, Birmingham, Manchester, Liverpool, London -where the law is used the most, and these are the cities where more BME people live. Sixty per cent of the prisoners we are now in contact with are from BME communities. Overwhelmingly, our prisoners come from poor neighbourhoods and because of cuts to legal aid they have often been failed by poor legal representation, getting very bad advice at the time of their arrest.
But it’s also important to point out that JENGbA is made up of people from all ethnic backgrounds. In fact we were started by two white women, myself (I am second generation Irish) and Jan Cunliffe. We got together after we were interviewed for the Panorama programme ‘Lethal Enterprise’. I was interviewed because I had been supporting my son’s best friend, Kenneth Alexander, an African-Caribbean lad who was 19 at the time of his conviction for murder, even though the judge confirmed he did not have a weapon and did not take part in the fight which tragically led to the loss of another young man’s life. Jan, who is from Warrington, is the mother of Jordan Cunliffe, 15 at the time of his conviction for the joint enterprise murder of Garry Newlove, even though Jordan is blind, had no contact with the victim and the court accepted he did not inflict the single fatal blow which killed Mr Newlove. So while the law affects all communities, irrespective of ethnicity, there is no doubt in our minds that the way it is applied by the police and CPS disproportionately affects BME communities.
Is the law used particularly against youth from BME communities?
GM: Joint enterprise is a sledgehammer in the hands of the police and the CPS when it comes to fighting ‘gangs’. The whole widening of the application of the law in recent years is totally linked to the police’s approach to knife crimes. Now anyone, who has a modicum of understanding about the reality of young people’s lives, knows that the joint enterprise laws do not deter young kids from carrying knives. But instead of having a real debate as to why young men, in particular, feel unsafe on the streets, we have all stood by while the police mis-use the law to scoop up young people at the scene of knife crimes. This is why we say joint enterprise is a lazy law, because it allows the police and CPS to secure multiple convictions, in cases where they are unable or unwilling to gather evidence, including forensic evidence that could prove categorically which individual was responsible for the crime.
If you take a look at JENGbA cases, approximately 30 per cent of the cases we have dealt with so far involve particularly serious offences carried out by young people who are perceived to be part of a gang. But we know our data is not giving the full picture. We’ve encountered many problems here. For a long time, we could not contact prisoners held in YOI’s [young offender institutions] because we only had a PO Box, which they were not allowed to write to. So that was one problem. But there is also a complexity when it comes to the way young people handle their sentence – issues like loyalty (or is it fear) of their peers – which we as adults, find it hard to get a handle on. But we also feel there is a reluctance amongst the families of young people, particularly in the black community, to come forward. Could it be that because of the whole media furore around ‘black on black crime’, because of Operation Trident and the way the gangs issue is seen as a black issue, that these families feel somehow that they are also guilty by association, that they should not make a fuss, that they will hounded by the media if they come forward and campaign? One African-Caribbean mother in JENGbA believes it’s because criminalisation has become accepted in the black community, that most black people know someone in prison, and they just don’t talk about it anymore.
We were quite clear in our submission to the Justice Select Commitee and in all the subsequent media interviews that the widening application of joint enterprise has nothing to do with targeting organised gangs, major criminal conspiracies, drug traffickers etc. The main targets are groups of young people gathering in the streets, or adults caught up in the kinds of random violence that are a depressingly familiar feature of poor neighbourhoods.
One thing that the Leveson Inquiry should look at is the unhealthy relationship that has developed between the police and the media. Our families are absolutely crushed by the way the newspapers report the so-called high-profile cases. What we find is that the facts of the cases are totally sensationalised in newspapers, with a steady trickle of prejudicial information, citing unverified ‘police sources’. These stories even make up the names of gangs – such as ‘MDP’ ‘Abbatoir Gang’ ‘Market Street Boys’…
Presumably this media sensationalism makes it much easier to secure convictions?
GM:Exactly! Because it makes for a salacious story, elevates the case into a cause célèbre and establishes a highly prejudicial environment in which to secure convictions. Now, if a jury sees five young black friends in the dock, they don’t see five individuals, but one black gang. The jury might be influenced by racist media stereotypes, and because of this they may find it difficult to separate, apportion responsibility, determine culpability. Seven black kids in the dock immediately becomes a dangerous black gang, because that is exactly the way members of the jury are taught to see black boys by the media.
We even had to point this out to the Select Committee, prior to the hearings. We contacted the clerks as an image was used on the committee’s website to illustrate the fact that the inquiry was going to take place which in our view played into exactly these frameworks. The picture used was of two kids in hoodies, they looked black, and were lurking in a doorway. We told them that the choice of such image just served to reinforce dominant perceptions that joint enterprise is a way of dealing with feral youth and gangs, particularly black gangs. We raised this with the clerks, and to their credit they went away and removed the image from the website immediately.
So racism comes in to play with convictions under the joint enterprise laws, yet Gary Dobson and David Norris have just been convicted under the same joint enterprise laws for the murder of Stephen Lawrence. Isn’t this contradictory?
GM: Well, I don’t see a contradiction at all. The same reasons why Doreen and Neville Lawrence could not get justice are the same reasons that black kids convicted under joint enterprise can’t get justice today – it’s the same issue of poor policing, just different times and different issues. When Stephen was killed, the police didn’t even bother to secure the evidence at the crime scene. It works in a very similar way with joint enterprise. And let’s ask ourselves this: joint enterprise has been around for a long time, why didn’t the police use it at the time of Stephen’s murder? The way I see it, the convictions of Dobson and Norris are not a victory for joint enterprise. All that it proves is that the police pursue the law when they want to, not when it is right, and not when it is just. For eighteen years they could not secure a conviction of the murderers of Stephen Lawrence, yet the prisoners we represent have been convicted on very little evidence, and this mostly circumstantial, certainly not forensic evidence. That’s why we have always said that joint enterprise is a lazy law that allows for lazy policing.
The Justice Select Committee has asked the Director of Public Prosecutions to issue guidelines on the proper threshold for prosecutions under joint enterprise. If you were advising Keir Starmer what would you ask him to do?
GM: We are currently working with lawyers to draft our own guidelines. One thing for sure is that it has to be used much more sparingly and with greater care. It must not be used as a convenient way of sweeping up potential defendants, including bystanders, and there must be a much tighter definition of foresight or intention. Degrees of culpability should be reflected in subsequent sentencing. What we want to do is get a meeting with Keir Starmer, and make sure that JENGbA, and the lawyers we work with, are part of any process prior to the issuing of the new guidelines. We are in the best position to understand how the law has failed – and we should be part of the process of change. In our evidence to the Committee, we were quite clear that the misapplication of the joint enterprise law is not just a subject demanding of legal remedies in the future. The families of prisoners, who have borne the emotional toll of a miscarriage of justice, have been denied legal remedies in the past. That is why we are calling for a retrospective review of all joint enterprise convictions. Once the guidelines are out, we can use them as a benchmark against which to review all our cases. And then we can see just how many people would not have been convicted in the past, if the guidelines had been followed then. We are going to get this retrospective change, come what may.
The campaign had an uphill struggle, but now you are getting a massive amount of press coverage. Do you think the climate is changing, and if so why?
GM: I do think there’s been a sea-change. It’s been very difficult for us. As I’ve said, we are friends and families of people convicted for serious crimes. People have been killed and that is awful. But what we have seen in recent years, and this is not easy to say, is the politicisation of certain victim organisations, that have become very close to the police, and may also, at some point, have received funding from the Home Office. A few of these groups stand for a certain sort of ‘vengeance culture’ and many of their members even argue for the return of the death penalty. (Remember that one of the most notorious miscarriages of justice which was also prosecuted as a joint enterprise was that of Derek Bentley and he was hung!) In this climate, it has not been easy for us to show that our prisoners’ and their families are victims too. Some of them, like Jordan Cunliffe, who is also disabled, were children when they were convicted and have been locked away for years for a crime they did not commit. It is not easy to talk of prisoners as victims in today’s climate.
However, we saw in the response to the Justice Select Committee that there has been something of a change, even in the BBC, where for the first time we have been invited on to television news and onto radio programmes like Today. Our voice has been sought and listened to. We have been given fair time to present our case. I do believe that something is kicking in, in society. Maybe there is, somewhere out there, an innate sense of justice, about what is fair, about what is wrong. We feel that now we have a foot in the door.
Where does the campaign go from here?
GM: Education is really important. We want to continue our educative role, telling young people about this law, about the dangers about being caught up with an incident that they couldn’t foresee. In the past, we had a small start-up grant, but this is long gone. We don’t need a lot, but we do need an office because we are a campaign that is growing. We do need money and we need stamps. We write letters to all the prisoners who contact us, and we send out a regular newsletter. This is a huge cost in itself and one paid for by the prisoners or their families. It’s not fair. We consider joint enterprise along with the question of the IPPs [indeterminate sentences for prisoners on the grounds of public protection] the biggest injustices in the criminal justice system today. We need stamps … we need an office … we are a campaign with legs … we need a retrospective review of the law … Only then will we stop.
The House of Commons Justice Committee report on Joint Enterprise (pdf file, 472kb)
 Derek William Bentley was hanged in 1953 after being convicted for his part in the murder of a police officer. He was granted a posthumous pardon in 1998.
The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.