December 2002: a Renault Megane stops outside a nightclub in a busy Sheffield street, a sawn off shotgun pokes out of a window and both barrels are discharged at the doorman, Gerald Smith, killing him. The police trace phone calls made in the area at the time of the shooting to people from Nottingham. The Megane is found burnt out in Derbyshire, and the owner arrested on suspicion of murder. She names two men who, she said, borrowed it, and she is released without charge. At least twelve people are arrested: two admit they were at the burning of Megane and name others who were present, and they are released without charge. Nine others are charged and admit nothing. “In a case that made legal history, all were convicted because they clung to a gangland code of silence...” reports the Sun on 7 July 2004. The police do not know who pulled the trigger.
On what evidence were the nine convicted? Just the Megane owner’s statement, and cell site analysis, which claims to pinpoint the spot where mobile phones were used. It linked particular handsets to the crime scene and the burning of the Megane. The crime scene link was based on calls routed via a single mast six kilometres away and, of course, no one knows what was said in the calls.
One of the phones was, by the time of the investigation three months later, already in the possession of the police. They had arrested Craig Brooks a month after the shooting, for a driving offence, and found the phone on him. He said it wasn’t his, but had been left in his car by someone else.
This sort of evidence normally provides grounds for suspicion – reasons to interview people who could be involved in the crime. But when some of the suspects denied involvement in the crime, provided alibis and said they were 30 miles away at the time, wouldn’t the police need more evidence in order to charge them? Apparently not. There wasn’t any other evidence.
The Megane owner made her statement under threat of being charged with murder, and when she did not appear at the trial, the police claimed they could not find her. Judge Richard Wakerley decided she did not attend because she had been threatened on behalf of a defendant, and his decision was based solely on his personal assessment of the ‘demeanour’ of this defendant in the dock: a man who is tall, well-built and black. This judgment permitted the introduction of hearsay evidence, the witness statement made under pressure – as the only evidence against this defendant.
We say this is a lazy law because it’s easy for the police to solve murders when the only evidence they need is mobile phone use or witness statements made by people trawled in with the other suspects – witnesses against whom there is evidence at least as strong as that against the people who are put on trial. And it’s easy for prosecutors, because just one of these tenuous strands of evidence is used to prove everything necessary to secure a murder conviction.
Joint enterprise law permits murder convictions without proof of intent (the mens rea or guilty mind required as an element of most other crimes). All that’s required is ‘foresight’ that the actual perpetrator may kill or cause serious injury. How does mobile phone use prove foresight? Because it shows that those who make the calls are members of the same ‘gang’. And if the defendant is a member of the ‘gang’ then he or she must know that the perpetrator may kill someone.
And how do we know that a criminal gang exists? Because the police say so, and no one challenges them – because the defence case for any particular defendant is that he or she is not part of a gang: the police’s claim that a gang exists goes unchallenged.
But, as judges always say to juries, proof of presence at the scene is not enough. For involvement in the crime, the defendant must have also encouraged the perpetrator. How might encouragement have been given? By being present at the scene; or by being part of the gang; perhaps by communicating by mobile phone (and so a defendant need not even be present at a crime scene in order to encourage the perpetrator – we know of several people convicted on such evidence, like Wesley Porter from Liverpool).
Such loose social connections as phone calls or sharing the same vehicle provide all the evidence needed to send someone to prison for decades. The police don’t need to gather any further evidence essential for solving a murder without joint enterprise, such as scientific or eyewitness evidence, or evidence of motive. They don’t need to prove who the perpetrator was. Sometimes they freely admit they none of the people on trial have been proved to assault anyone.
Mere grounds for suspicion have become evidence. This is why this lazy law has become so popular with police, prosecutors and judges. Since 2008, more than 350 defendants have been prosecuted in just 116 murder cases (BBC News), in many cases through use of evidence like that used in the Sheffield case.
Now suppose, in this case, you had not just one strand of evidence, but three: phone evidence showing someone was present at the scene, the evidence of one witness that he borrowed the Megane, and the evidence of a separate witness that he burnt the car after the murder. Against just one of the nine defendants, Leon Bryan, there were all three pieces of evidence – and Bryan was in fact responsible for the murder. After the trial, he admitted shooting the victim, and added that he knew that at least four other defendants were not present at the scene. Both Bryan and his victim were drug dealers, said to be engaged in a personal dispute which did not involve some, perhaps none, of the other defendants.
Joint enterprise is a legal doctrine dating back over 300 years. But it’s only in the last 10-15 years that it’s been developed into its present form, as common law, which is decided by judges (and never debated publicly or by parliament). The judges have developed this law in reaction to a panic created by the police and the media about supposed ‘wolf pack killings’ by ‘gangs’ of young people (according to former Metropolitan Police Commissioner Ian Blair, speaking on BBC Radio 4, 8 September 2010). Forget the research which tells us: ‘in some cases [police] intelligence reports create a cycle of misinformation causing gangs to be created by police that may not actually exist.’
‘Don’t worry about sending people to prison for murders they did not commit: What you've got to decide is not “Does the system lead to people being wrongly convicted?” I think the real question is, “Do you want a law as draconian as our law is, which says juries can convict even if you are quite a peripheral member of the gang which killed?”’ said Tony Blair’s Lord Chancellor, Lord Falconer (Radio 4, 8 September 2010). Falconer favours the draconian law.
Joint Enterprise: Not Guilty by Association (JENGbA) aims to change the law so that it cannot be used to convict people of crimes they have not committed; have the cases of all those, who claim to be innocent and were convicted through use of this law, reviewed and the changed law applied to them.
