On 18 February 2016 the Supreme Court and Privy Council issued an important judgment in relation to convictions on the basis of ‘joint enterprise’. Prison landings were immediately buzzing with excitement, as prisoners convicted of murder or other serious crimes of which they were not the actual perpetrator saw the possibility of an end to their ordeal. Unfortunately the reality is more complex but this is still a very positive step and a credit to the campaign group JENGbA* and others who have fought to get this ruling. Nicki Jameson reports.
Since 1984 the law has been that if someone took part in any criminal activity along with another person or persons, and they foresaw even the slimmest possibility that their co-perpetrators would go on to commit a more serious crime, they would by extension be guilty of the greater offence, even though they played no active part in it. This principle (referred to in the courts as ‘parasitic accessorial liability’) goes way beyond the original idea of ‘joint enterprise’ in which two or more people agree to do something, even though only one of them actually carries it out.
This has been used, with devastating effect, to achieve mass convictions for ‘gang-related’ crimes. In 2001 a fatal stabbing at a So Solid Crew gig in Luton resulted in six murder convictions, including that of one person who had left the scene and was several streets away by the time of the stabbing. In 2012, 20 people were charged in relation to another fatal stabbing which occurred in Victoria station, although ultimately most were not convicted of murder. In both these and many similar cases the accused are almost without exception young black men and the process has been quite rightly described by campaigners as a racist ‘dragnet’.
Similarly, in the north of Ireland in the early 1990s, in scenes reminiscent of the mass internment of the 1970s, groups of teenagers alleged to have participated in attacks on British soldiers were rounded up and imprisoned on little or no evidence, with the joint enterprise doctrine just one of a whole number of legal ways used to criminalise community resistance to occupation.
The Privy Council – legacy of colonialism
The judgment issued on 18 February concerned two separate but similar cases; that of Ameen Jogee, decided by the Supreme Court on appeal from courts in England, and that of Shirley Ruddock, who was convicted in Jamaica in 2010, and who appealed to the Jamaican appeal court and from there to the Privy Council in London.
The Privy Council of the United Kingdom – which dates back to Norman times – is a body of senior politicians who advise the queen on matters of state. (Remember the fuss over whether Jeremy Corbyn would swear allegiance to the queen in order to become a member.) The Judicial Committee of the Privy Council acts as the highest court for certain obscure domestic matters and as the final court of appeal for people convicted in former British colonies which have not yet passed legislation untangling their legal frameworks from that of their old imperialist master. These include Jamaica, Trinidad, Bahamas, and Antigua and Barbuda, all of which have the death penalty.
Similarly, the 1984 case which the current the judgment describes as ‘taking a wrong turn’ in the law arose from an appeal in Hong Kong in 1980 by Tse Wai-Ming against his joint conviction for murder with two other men. (The case is referred to by the name of the first defendant, Chan Wing-Siu.) At the time Hong Kong was still a British dependent territory which – unlike Britain itself – had retained the death penalty, to which the three men were sentenced.
Liberal British lawyers and law students do lots of pro bono work for appellants to the Privy Council in the same way that they go to the US to work on death row. It is not a bad thing that they do this work in itself; however many of them – including former Director of Public Prosecutions and now Labour MP Keir Starmer – accompany their advocacy with a ‘white man’s burden’ defence of the colonial structure, opposing the delinking of these countries’ legal systems from Britain’s. Aside from the obvious paternalism involved in appeals from any former colony continuing to go to a British court, the reality is that the Privy Council does not always rule in favour of the appellants. The ‘wrong turn’ in the case of Chan, Wong and Tse in 1984 meant that the death penalty against them was upheld. The Privy Council’s continuance means that, despite the abolition of the death penalty in Britain, courts here can still order state executions – these are in essence racist decisions, made by white judges in Britain about the lives of black and Asian people elsewhere.
How to appeal against a joint enterprise conviction
The judgment in the cases of Jogee and Ruddock reverses the courts’ earlier adoption of ‘parasitic accessorial liability’ so that evidence of foresight in such cases returns to being just that – evidence, which the jury can attach whatever weight to it thinks is appropriate, as opposed to its constituting automatic authorisation of the crime and hence equal guilt.
In these two specific cases, the men’s murder convictions have been quashed and lawyers will be making further submissions as to whether they should be convicted of manslaughter or retried. For anyone else who has been convicted in similar circumstances, nothing will happen automatically. You will need to approach the Court of Appeal, possibly out of time, or apply to the Criminal Cases Review Commission.
If you need advice on whether you have a case for appeal and do not already have a criminal solicitor advising on this, you can contact the Centre for Criminal Appeals, Room 29, 2-10 Princeton Street, London WC1R 4BH; telephone: 020 7040 0019.
*JENGbA stands for Joint Enterprise Not Guilty by Association. You can contact JENGbA at Office A, Norland House, Queensdale Crescent, London W11 4TL; tel 07709 115 793; website: www.jointenterprise.com
Fight Racism! Fight Imperialism! 250 April/May 2016
