Tuesday, June 19, 2012
How joint enterprise undermines the rule of law in Britain, part 1
In America, it is easy to look at England and think that there is a respect for the rule of law, dating back to the Magna Charta in 1218. In contrast, for the United States, torture became a routine practice of the Bush-Cheney regime. While Obama has abolished certain forms of torture, i.e. waterboarding, he has let the torturers go free. There is a bipartisan consensus (a legal regime in Yale constitutional lawyer Jack Balkin’s phrase) that elite criminality – a violation of American domestic laws against torture as well as international laws which America often sponsored and are the highest law of the land according to the Supremacy Clause, Article 6 section 2 of the Constitution – can be engaged in with impunity. War criminals (the entire Bush-Cheney officialdom with the possible exception, about torture, of Colin Powell) go free. See here, here and here. John Brennan the torturer under Bush is called by one-time authority about war powers Howard Koh a “priestly man” with regard to counselling Obama’s horrific policy of selecting far off candidates for extinction by drone. See here.
Corrupted by power in this major respect, Obama grandly makes himself personally responsible for killing anyone near a supposed terrorist and says: if a young man hangs out with terrorists, and is killed, that is another “terrorist.” This may lighten the conscience – Barack does, comparatively, want to avoid the larger scale murder and war that Romney hungers for in seeking to bomb Iran or attack Russia – but it is false.
In elite circles, it used to be said that guerillas and terrorists hide among civilians so that “collateral damage” – i.e murder of innocents - is “necessary.” Though an apology for murder, that lie acknowledges some killing of innocents. The current doctrine is mere guilt by association, a form of collective punishment.*
And the Democratic neo-neo cons say that the mass murder of innocents in several countries the US is aggressing against without declaring war – Pakistan, Somalia, Yemen, for instance – is on a smaller scale than that of all-out aggression and occupation (Iraq, Afghanistan). So Barack is, his publicists point out, tougher than Romney, more focused (he did, after all, take out the murderer Bin Laden) and less of a would-be wanton mass murderer a la Bush. But as head of the Empire and “commander in chief” of the war complex, he, tragically, still sends out the drones...
The Obama administration lets all the bankers who swindled the poor though collateral debt obligations and brought down the world economy walk free – and the other party, the imperial authoritarian 1%ers, wants to undo even the inadequate Dodd-Frank regulations. Yet Obama fiercely punishes those who have or are accused of having blown the whistle on American crimes. Bradley Manning, not Dick Cheney or Condi Rice or Lloyd Blankfein, is on trial, and America is angling, with Swedish prosecutorial aid, at bringing Julian Assange, an Australian who published the documents, to one of its, by now pseudo-courts.
In a startling contrast, the Law Lords, the British high court, declared that there is an absolute prohibition of torture. Habeas corpus, that each person arrested must have a day in court and neither be tortured nor indefinitely detained, is in force. On the face of it, British justice looks and is very different from the American travesty of law.
And yet the British prison/probation complex I discovered in my recent visit to Oxford and London to talk about Black Patriots and Loyalists and its implications today is quite similar to the American. See here. Some years ago, Trevor Phillips, head of the Equality and Human Rights commission, wrote an article on how 10 young African- or Afro-Caribbean Britons were in jail for every 6 that are in university. Last Thursday, he mentioned to me that at the Russell universities (a British attempt to extend Oxford and Cambridge into an Ivy League), the ratio is today 3 to 1.
Michelle Alexander’s The New Jim Crow*** traces how the segregationists, switching after the Civil Rights movement from the Democratic to the Republican Party pushed for mandatory sentencing and fierce drug punishments, and expanded the prison system 8-fold, from 300,000 to a startling 2.3 million today, 25% of the world’s prisoners. And there are 5.1 million more trapped on probation, unable to find work, live in public housing, and often, to vote...
But England has, I have learned, for its population size, broadly similar statistics and practices. Many young blacks (and Asians and poor whites) are unemployed – the rate was 45% in 2007 for blacks before the economic collapse – and is probably much higher now (h/t Lee Jasper).
And those who rebel against police murder as in the nationwide uprising starting over the murder of Mark Duggan in a police car,**** are being ruthlessly denounced as "criminals," whether they engaged in significant criminal activity or not, in a strange form of collective punishment called joint enterprise, and imprisoned. And this is a general police practice affecting young blacks, Asians in Nottingham and whites in Liverpool.
Note a parallel to the U.S. – the drones punish collectively, the policing of “gangs” in America punishes collectively (in Denver, when the police stop and harass you for walking while black or chicano or poor white, they list you in a gang; the next time you are stopped, you are already on a list, ready to go…), and so in England, joint enterprise.
This is no small abridgment of the rule of law. In England, 17% of all prisoners are “lifers” (a 30 year sentence is considered a life sentence there); in the rest of Europe outside of Russia, 3% of all prisoners are lifers. As we will see, the doctrine of joint enterprise contributes substantially to this difference.
Centerprise, the wonderful black history bookshop and Jamaican restaurant (136-38 Kingsland Road), is one of the places that welcomed me in Britain. See here. Emmanuel Amevor who runs it, has created a kind of community center in which a lot of people come through. I gave the keynote talk in their midsummer literary festival Wednesday night, along with Lee Jasper, who worked with radical mayor Ken Livingston of London (The Livingston administration put a tax of 15 pounds on driving into the city which only the well-to-do pay and subsidized public transportation. This policy is today unusually redistributive: a Robin Hood compared to the reverse Robin Hood of Tory and, even more sharply, “Republican” tax policies).
Emmanuel introduced me to Dougie who has a very lively radio show I was on in the early morning on Wednesday on SCR radio (10:30pm-2AM). Through him, I met three women who are at the center of JENGbA – Joint Enterprise No Guilt by Association. See the website with a very good account of the abridgment of law and justice here and some striking stories on 300 people, mainly teenager, accused without significant evidence and sent to long prison terms here.
Gloria Morrison, one of the leaders, talked to me about Kenneth Blackwell, her son’s friend, a young black man who was over at her house a lot, and was arrested because he had some friends, one of whom was involved in a stabbing. Kenneth was a would-be police officer, tried to break up a potential fight, and was knocked unconscious from behind and lying on the ground when the incident occurred. Committed to do the right thing, he later helped the police, testifying about what happened. He was still sent away. The story reminds one of Kafka...
Ken was 19 working full time and training to be a youth offending officer.
He and his school friends were attacked by another group of men during which one of them was fatally injured.
Initially Ken tried to quell the fight telling them ‘they didn’t want any trouble’ and he turned his back.
He was knocked semi-conscious to the floor where he tried to extricate himself from the ensuring struggle. and it was agreed in court that he did not have a weapon nor did he participate in attack.
Ken co-operated fully with the police believing it the ‘right’ thing to do. It was his testimony that helped the CPS get convictions including his own 16 year Life joint enterprise murder.”
For Kenneth's "case," nothing had to be proved other than that Kenneth was in a group of people who knew each other, fighting with another group. Knowledge that another person, perhaps an acquaintance, perhaps a member of the other group, had a knife and would, in the moment, stab someone, was inferred, grotesquely, without the slightest need for evidence. He was even knocked unconscious (did someone else commit an assault? is he "jointly" guilty of knocking himself out?).
What Kenneth did in the situation was disregarded. His aid to the police was disregarded in the sentencing as well as his ambition to be a police officer. His commitment to "the right thing to do" was disregarded.
Gloria Morrison, a white woman who knew him well and could cast light on his character, was not consulted in the process of sentencing.*****
Consider the use of Joint Enterprise: one person present does a stabbing, a serious crime for which he or she should be arrested and prosecuted. But everyone possibly connected to him or her, either being present or being injured on the ground and unconscious or being outside or having phoned her recently, is also convicted and sent away for life.
If this is professional police and judicial work revealing British commitment to the rule of law and differs from tyranny, someone could get a Ph.D. for coherently explaining the difference….
Absent racism, an attempted apology would, I am afraid, be vanishingly short.
Teenagers, boys and girls, often hang out in large groups, part of their normal socialization in many societies. To stigmatize groups of certain races or classes as “gangs” enormously magnifies the amount of persecution done by the authorities and the number of “likely criminals.” Combine this with high unemployment (larger than 50%), weak schooling (though this has improved since the 1980s), cutbacks in community centers and services, and one has a blueprint for the police falsely criminalizing and disproportionately jailing a whole population...
Magnifying ordinary stop and search procedures (specially for the poor, black and Asian), joint enterprise enables shaky and racist police procedures.
Joint enterprise itself is a legal term which 300 years ago was used about dueling. Both the duellers and a doctor who would patch up survivors as well as assistants/companions were part of the joint enterprise and subject to criminal charges. Or consider bank robbers and the driver of a getaway car. The law once had something like a specific and plausible justification.
But there is now a tyrannical creep or "laziness" in the law, as JENGbA says. This “law” is now used against stigmatized parts of the population – blacks, Asians and poor whites – to deter “gangs.” It has peregrinated so if you call a friend on a cell phone and the friend later commits a crime, that is sufficient “evidence” - without any knowledge of what was said - to convict the phone caller of conspiracy to murder and throw her away for life.
British law, Gloria explained to me, is common law. Very weak evidentiary standards have been handed down from judge to judge furthering implausible notions of conspiracy.
There had been no parliamentary discussion of the merits of this extension until a 2011 Judicial Inquiry hearing which issued a report criticizing it (now, the American congress has farcically passed mandatory sentencing, crippling the necessary role for a judge and a sentencing hearing in each particular case; having a serious legislative discussion depends on the courage of and decency of representatives and is hardly a guarantee – but it probably works out better most of the time). This parallel House inquiry was sparked by rank and file protest against this law.
But for blacks and poor Asians and whites currently, the law is inverted, the verdict is guilty many times over until proven innocent. And once one is enmeshed in the machinery of justice, once one has been found guilty in an ostensible legal proceeding, it then takes a great deal of evidence to prove one’s innocence….
In British law, Gloria describes Blackstone’s ratio: better that ten guilty men escape than that one innocent man suffer (William Blackstone, Commentaries on the Laws of England, published in the 1760s)...This is the principle of a free regime, a regime which respects the rule of law and restricts the enormous, often arbitrary power of government compared to any individual. Joint enterprise and the mass imprisonment of BME (black minority ethnic) lifers reveals today's reversal or betrayal of this cornerstone of English justice for a large part of the English population (it undermines law, as Pastor Martin Niemoller reminds us, for everyone).
In corporate politics and the press – Britain is full of news this week about Prime Ministers and party leaders testifying because they were yo-yos for Rupert Murdoch and his criminal activity**** - there is no consideration of structural and increasing inequality, the continuing racism toward dark-skinned, formerly colonized or enslaved peoples, the demeaning that goes on every day. Tony Blair referred angrily to black youth as a “feral population,” David Cameron as “criminals” and to “broken Britain.” One can only be inspired by Cameron's fine appreciation of law as shown in his appointment as his communications director of indicted Murdoch executive Andy Coulson and friendship with indicted Murdoch executive Rebekah Brooks...
During the uprising last year, Darcus Howe, a West Indian Briton, was interviewed on the BBC. He spoke heartbreakingly of his grandson, an “angel”, who had been stopped and frisked twice a month by the police for the crime of walking while black. See here. One might try, he suggested, to understand the cause of the rebellion - one of patterned injustice without stint as John Locke describes how an elite provokes revolution in his Second Treatise. Howe identified this rebellion as part of Arab spring and Madison and Greece and Spain, an unwillingness of many now to accept fierce injustice.
In the interview, Howe had to say twice that of course, he opposed the violence. The foolish racist who asked questions and the man sitting silently beside her actually had a story from which listeners might have learned and tried – unsuccessfully – to bury it.
As an American, one thinks of English bobbies who do not carry a gun in Piccadilly or near Parliament. One thinks of English civilization, of habeas corpus, of Blackstone’s ratio. But for black people, Asians and many others, including the white poor, the rule of law does not exist. Mark Duggan was executed in a police car near Tottenham police station on “suspicion” of having a weapon…
Kenneth Alexander, a would-be cop, was thrown away…
Breathing while black is as much a “crime” in Britain as in the development and persecution of gangs in the United States. Yes, gangs are a serious problem in both societies. But many people are labeled gang members because the police harass them, and then write them down as gang members (no evidence beyond the cop’s imaginings). They go into a file, and the next time, they are stopped…
If one takes bad schools, constant disparagement by the politicians and the BBC, police harassment, and massive unemployment, many kids will still go through this and not fight back. These are after all very young people, often swept up in bizarre unfairness as if in a Kafka story. Yet they may still, as we will see in a subsequent post, get thrown in jail for a long time under joint enterprise. JENGBA below has some 260 stories, and between 5 and 10 new ones coming in weekly.
Others will get frustrated, angry and act out.
The energy of the elite in Britain is as ferocious toward poor black, brown and white teenagers as it is in the United States. They are given little to no chance. And they react accordingly.
In an era of fierce cutbacks and enormous rises in college tuition (Britain emulates American debt-slavery to the banks; university now costs some 12,000 pounds a year, Lee Jasper notes) coupled with greater than 50% unemployment for young people and police bigotry and harassment, is it any wonder that there is trouble in Britain comparable to the United States?
An Article on Joint Enterprise from the JENGbA website
Joint enterprise is a law used when the police cannot prove who the perpetrator of the offence was. So for example you are walking down the street with a friends or relative.Your friends/relative gets into a fight, you're at the scene watching what is happening obviously thinking that it has nothing to do with you, it’s not your fight. The fight ends everyone walks away. The next day you are arrested on the suspicion of murder, you find out it wasn’t just a fight you witnessed, the person who your friend/relative fought with was fatally stabbed. You tell the police ‘ I was there but it wasn’t me’. You feel confident because you played no part, you didn’t know the person was going to be or had been stabbed.
You are then charged jointly with murder! You know you are innocent but it will go to trial. The prosecution will allege that you were part of a common purpose or plan, you were there for encouragement, you are equally guilty. The prosecution will ask if you knew whether your ‘accomplice’ had a knife, you will of course deny this, you thought it was just a fight. The prosecution will then allege that you should have known what was in your ‘accomplice’ pockets because you are best friends or relatives etc etc. The prosecution will allege you shared the same intent as the murderer, he will go on to trash your defence with his wild speculations during his closing speech. His whole speech will be intent on damaging your character because he has no solid evidence against you, he barely mentions your co-accused, he doesn’t have to, the evidence presented in court has secured his first conviction. He will save his closing speech all for you, attacking your character and making sure the jury learn that you are no scared little chicken sitting in the back of class too afraid to speak with your school teacher.
But the jury won’t take too much persuading, after all the standard of proof is set frightfully low in joint enterprise law. Your life has been placed in the hands of 12 people who don’t know one end of the law from the other. It takes a person 10 years to qualify as a barrister and yet a jury of 12 people with no law experience are expected to understand such complex laws like joint enterprise in 3-4 weeks. The jury will go on to convict you because of one or two things. 1. ‘There’s no smoke without fire’ the prosecution has done his job by attacking your character with totally unwarrented speculations, or 2. They just don’t understand the complex law of joint enterprise or worse, they can’t be bothered to work it out – after all they have sat through a rather lengthy trial. Conviction number 2, really good day for the prosecution.
Ok so now you think, ‘ I’ll appeal, I know I am innocent’. You will then be told that you can’t appeal on the basis of your innocence. Why? Because juries don’t get it wrong. The fight you will have on your hands to over turn your conviction will be way bigger than you can ever imagine. Why? Because the ‘Justice System’ doesn’t like to admit they have made a mistake. You will still fight though there is nothing left for you to do apart from a sentence for a crime you haven’t committed. Things will get a whole lot worse before they get even a smidgen better. The newspapers will print that you are a murderer, that you joined in with the fight. They will crush any chance of people believing you, you will feel trapped. Because you keep maintaining your innocence you will stand little chance of parole. Why? Because maintaining your innocence is not showing remorse therefore you are not rehabilitated because you are not sorry for a crime you did not commit.
Someone said to me not long ago that juries should be told how difficult it is to have a murder conviction over turned. Some Juries will more than likely go on to convict under the illusion that if they got it wrong a higher court will correct their mistakes. This is wrong, courts do not like to over turn convictions and admit their perfect system is wrong.
Other people are serving life sentence’s because of simply using their mobile at the wrong time. Another is serving a life sentence for being a good samaritan, unfortunately all he did was offer the wrong person a lift. Another person is serving life because he was asked to burn out a car for the insurance money, little did he know that the car had been used in a murder, and there you have it – another miscarriage of justice.
This is joint enterprise, I know you will probably not believe what you are reading but these things happen, this is real life. If you think Joint Enterprise will never affect you think again! Remember all you have to do is be in the wrong place at the wrong time or even innocently use your own mobile phone. This law is unjust and is crying out for an amendment that will set the standard of proof extremely higher than what it is now. But don’t worry I know you will be thinking this simply couldn’t happen to you….. Could it?
(Posted in JENGbA's Facebook Group)
INSTITUTE OF RACE RELATIONS
JOINT ENTERPRISE, RACISM AND BME [Black, Minority, Ethnic] 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 here (pdf file, 472kb)
*Note that Obama killed Osama Bin Laden, a mass murderer of innocents, with a sophisticated operation which did not require drones. See here, here and here.
**See the fine speech of Margaret H. Mitchell, chief justice of the Massacuhussetts Supreme Court, a Radcliffe day medalist, on the assault on judicial impartiality and the rule law in the United States here (h/t Hilary Putnam). She comes from South Africa and has a deep understanding of racism and what has been good about the United States, fought for below, and how it is threatened. Her assessment of Justice Scalia is apt and frightening. Her remarks begin 30 minutes in.
***As I discovered on this visit, Alexander’s book is not yet widely known among activists in Britain. It reveals many parallels and deserves to be. See here, here, here, and here. Two days ago, there was an anti-stop and frisk March of thousands in New York...See here and here:
"Mr. Jealous [Benjamin, Jealous, head of the NAACP] rejected the argument set forward by Mr. Bloomberg and the police commissioner, Raymond W. Kelly, that stop-and-frisk policing reduced crime and improved the quality of life in black and Latino neighborhoods.
'Stop-and-frisk is a political tool, victimizing one group of people so another group feels protected,' Mr. Jealous said. 'It’s humiliating hundreds of thousands of people.'
According to a report by the New York Civil Liberties Union, during the 10 years of the Bloomberg administration, the police have performed 4,356,927 stops, including 685,724 last year. Among African-American males ages 14 to 24, the number of stops last year was greater than their total population."
****The police lied about it, but commendably the Independent Politics Claims Commission revealed that only police bullets were fired.
*****Murdoch’s assistant Rebekah Brooks, a close friend of David Cameron, will go to trial for eavesdropping on and publicizing conversations, for instance, about Gordon Brown’s son. The case broke open because one of Murdoch’s agents tapped into the cell phone of a murdered teenage girl, and deleted some messages, giving false hope to her parents that she was still alive. That Fox continues in the United States, that the issue is not even raised, and that Rupert Murdoch is not banned from the news business and subjected to criminal investigation is as blatant an example of the rule of money in these societies as there can be.
******I also spoke with Hesketh, a teacher for 35 years, two of whose students whom he thinks well of, were arrested under joint enterprise and sentenced. He, too, was not consulted during sentencing….