THE ENTERPRISE COMPLIANCE SCHEME

UntitledThe historic ruling by the UK Supreme Court that the notorious Joint Enterprise or Common Purpose law has been misinterpreted by the legal profession over the past thirty years rightly hit the headlines this week. Few laws in this country have caused as much controversy in the last decade or so, responsible for putting many behind bars who didn’t actually commit a crime but were present when the crime was committed and were regarded as being as crucial to its execution as the perpetrator. The law has been used mainly in murder cases, when a gang (or just two) has rounded on an individual, leading to a fatal blow administered by one member of the gang; rather than the guilty party receiving the appropriate sentence (if he or she could be identified), everyone at the scene has been found similarly guilty, not of mere manslaughter, but murder by virtue of foresight that murder would be the outcome of the confrontation. Application of the law has been a convenient weapon for police in dealing with gang crime, though the miscarriages of justice it must take the blame for would need some considerable wading through.

The law has rather eccentric roots, dating originally from a cart race between two coves in the mid-nineteenth century; a pedestrian was knocked down and killed, but nobody seemed to know which of the two drivers had caused the fatal accident. Therefore, both were held jointly responsible for the death. The law’s most infamous application in the twentieth century was in the case of Derek Bentley, when the mentally-handicapped teenager was hanged after his friend Christopher Craig shot dead a police officer during a bungled robbery in 1953. Bentley’s ‘let him have it, Chris’ was not perceived by the jury as a request for Craig to hand the gun to the policeman, but an order to fire it at him. As Craig – the actual murderer – was under 16, he couldn’t be charged with the crime and Bentley received the full force of the law, not being given a long-overdue pardon until 1998.

It was rarely evoked as a legal option up until the 1980s, but a gang murder in Hong Kong fell into the lap of the Privy Council’s judicial committee in 1980, when that body was still the final court of appeal for crown colonies; Joint Enterprise was evoked anew as a means of resolving a complex situation that nevertheless took four years to reach a decision on, the committee eventually finding all gang members as complicit in the murder as the murderer himself. The Law Lords, once the highest ranking judges in the land, took the Privy Council verdict as a guideline for the use of Joint Enterprise in the mother country. Following the Chang-Wing Siu ruling, the increase in gang crime on home soil then saw Joint Enterprise revived as a canny method of putting an entire gang behind bars when only one of them had committed a murder. As the 80s morphed into the 90s, the law began to be utilised more in the case of youth crime; and it is primarily young men who are the victims of Joint Enterprise. Had Anthony Burgess used it in ‘A Clockwork Orange’, all of the droogs would have been sentenced for the murder of the lady at the health farm that landed Alex in prison.

One of the most high-profile murders of recent years – that of Stephen Lawrence in 1993 – took a rather convoluted route when suspects were initially rounded-up without conviction and became something of a political football kicked around for years until Joint Enterprise came to the rescue and David Norris and Gary Dobson were both sentenced for the murder in 2012. The law was also used to convict second, third and (in some cases) fourth and fifth parties in further murder cases guaranteed to generate excessive tabloid headlines, such as that of Garry Newlove in 2007, Shakilus Townsend in 2008, and Zac Olumegbon in 2010. This seemed destined to carry on indefinitely, with the gruesome nature of the respective crimes deemed awful enough to warrant heavy sentencing for those who were privy to them, whether or not blood was on their hands. It sometimes feels these days that the worse the crime, the more justification there is for riding roughshod over legal liberties. As long as someone is wheeled on to be hung, drawn and quartered – regardless of their innocence or guilt – that will suffice.

It increasingly began to appear that lazy usage of Joint Enterprise didn’t seem that different from the tactics of the West Midlands Serious Crime Squad in the 1970s, when the horrific mainland bombings by the IRA in 1974 demanded instant guilty parties to be displayed before the media; the cases of the Birmingham Six and the Guildford Four are testament to the need for someone to carry the can for a horrendous crime, regardless of whether they actually committed it. The injustices of Joint Enterprise were highlighted for a mass audience who in all likelihood were largely unaware of it via Jimmy McGovern’s powerful 2014 TV play, ‘Common’, which presented a fictitious portrayal of an archetypal case. Around the same time, a campaign group seeking to reform the law, JENGbA (Joint Enterprise: Not Guilty by Association) was founded to further alert the public to the injustices Joint Enterprise was causing.

Despite the groundbreaking ruling by the Supreme Court, however, we have been warned not to expect a rush of successful fresh appeals by those convicted under Joint Enterprise. It seems the ruling will only really affect future cases rather than those already heard in a court of law. It has not been retrospectively applied and it has not been excised from the legal bible. But the judiciary has belatedly admitted it got something wrong; and that in itself is cause for celebration, whatever happens next.

© The Editor

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4 thoughts on “THE ENTERPRISE COMPLIANCE SCHEME

  1. On a purely personal note, as a non expert in the particular field, I have always understood the necessary intention (mens rea) for murder to be to kill, or to inflict such harm as any reasonable person would know could lead to death. I do recall back in the miner’s strike days that somebody lobbed a concrete block off a motorway bridge and it went through the front window of a taxi carrying “scabs”, splashing the head of the unfortunate taxi driver all over the inside of the taxi. The perpetrators were let off a murder charge on the grounds that they had only intended to frighten and not harm, a view which my Dean of Faculty (he was a very smart man – I mean very smart, and became a Lord Justice of Appeal) described as ludicrous. I may have a faulty memory, but that’s what I remember. But I have observed “criminal practitioners” foe many years now. They are, on the whole, lazy fuckers. There are 3 reasons for that. First, it is in their nature. A bit harsh that. Second, they get 9 Times out of 10, Darren did do it, and they are engaged in making money. It’s just shovelling shit till Darren comes back the next time, and another fee is earned. This involves churning cases quickly, and guilty plea is a good way of getting the fee and moving on. Or a high profile trial with a big fee, despite the fact that the outcome is clear. Third, the legal aid people usually pay. Working for a client who is actually paying is very different. That is not always the case, to be fair – but I would go so far as to say that a high proportion do not have the brains of a lamprey. But my Dean of Law was right. Lobbing a piece of concrete off a bridge in front of a taxi, resulting in the splattered head of a driver, is murder. never, ever, underestimate the power of the judiciary to be political. At the time, it was necessary, give the fraught nature of the times, to relive the actors of murder.

    Liked by 1 person

    1. I remember that horrible incident in the miners’ strike. It was the first I recall that painted the miners in a less saintly light than they had so far been painted in during the strike where I grew-up.

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  2. Maybe we should revisit the Nuremberg War Trials, and even current cases involving decrepit nonagenarian ex-guards, as most of these would seem to fit the Joint Enterprise category. But I suspect the ‘perpetuation lobby’ wouldn’t approve.

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