Last week it could finally be reported that the first two defendants in a murder trial at the Old Bailey walked free from court following the recent landmark Supreme Court ruling on joint enterprise.
Joint enterprise is not a new law, but it was developed by the courts to allow for more than one person to be charged and convicted of the same crime. Under joint enterprise, a number of people can be prosecuted collectively for an offence committed by only one person if it can be proven that the participants were working together in some way. All parties are convicted of the actual offence and can expect very lengthy prison sentences. In some instances it is enough for a defendant merely to be acquainted with the guilty party to be convicted of a crime.
The way that joint enterprise had been interpreted until now has resulted in an alarming number of convictions of BAME prisoners. The Institute of Criminology at Cambridge University found that Black/Black British people are disproportionately represented in the statistics of those in prison for joint enterprise offences – at 37.2%, despite being only 3.3% of the British population. Mixed race prisoners were also considerably overrepresented.
However, a few weeks ago five Supreme Court judges unanimously agreed in a landmark ruling that joint enterprise had been ‘wrongly interpreted’ for more than 30 years because foresight (knowledge of a crime) was being treated as a punishable crime in itself. Instead, the Supreme Court ruled that intent must also be proven and that foresight on its own is not enough to get a conviction.
Days later, the Old Bailey trial against 23-year-old Khalid Hashi and 24-year-old Hamza Dodi was thrown out by the judge following a legal bid by defence lawyers. Both men were accused under joint enterprise law of being part of a gang that stabbed to death a 24 year-old man from Plumstead in London – though, despite their case being thrown out, The Daily Telegraph news report still referred to them as ‘killers’. Only one man, 20-year-old Osman Musa Mohamed, was convicted of the murder. The prosecution claimed that the Supreme Court ruling had fatally weakened their case against the other two men.
Legal experts believe that there could be thousands of appeals from prisoners convicted under joint enterprise, especially those from BAME communities, who are all too easily typecast as gang members, a key factor contributing to convictions under joint enterprise.
A report by the Centre for Crime and Justice Studies, entitled ‘Dangerous associations: joint enterprise, gangs and racism’, reveals the complex process of criminalisation which BAME people (mostly young black men) go through. According to the report, it is much easier to convict groups of people and establish foresight under joint enterprise law if it can be shown that they are part of a gang or know about gangs. Worryingly for BAME young people, the label of gang member (if they hang around in groups or are knowledgeable about gangs) is regularly used by statutory agencies as a way of describing them.
They are often labelled as involved in gangs for reasons such as watching hip hop videos or listening to rap music despite no significant evidence of criminal history.
‘Prosecutions under joint enterprise all too often seemed to involve a dangerous cocktail of innuendo, hearsay and racism,’ said Will McMahon, Deputy Director at the Centre for Crime and Justice Studies.
Campaigning organisations like JENGbA (Joint Enterprise Not Guilty by Association) and legal experts who have been calling for joint enterprise reform described it as a ‘dragnet’. A Justice Committee inquiry in 2014 was told that ‘It hoovers up young people from BAME communities who have peripheral, minor or even non-existent involvement in serious criminal acts, along with the principal perpetrators, and imposes harsh penalties on them’.
In the aftermath of the Supreme Court ruling, JENGbA ,which supports over 600 prisoners, 80% of whom are from BAME communities, is now working with the Criminal Cases Review Commission to get unsafe joint enterprise convictions fast-tracked to the Court of Appeal.
The statistics are sobering. Gloria Morrison, coordinator at JENGbA, said: ‘We know that there is a large number of prisoners, many serving life sentences, who have been convicted under a law which the Supreme Court has now acknowledged was a “wrong turn”. This judgement will offer new hope to them, to their families and their friends. We will fight to overturn every wrongful conviction.’
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Colin Joseph is an experienced journalist and communications professional based in London. He has worked as a print journalist for national, regional and local newspapers and has worked as a senior broadcast journalist at the BBC where he specialised in Community Affairs focusing on BAME communities. Also skilled in public relations, he has worked for many charitable and public sector organisations focusing primarily on media PR campaigns. @ColinJoseph5
This article was commissioned and edited by Kiri Kankhwende
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