"Common": Did the programme get the law on joint enterprise right?
Judging by Twitter, "Common" (written by Jimmy McGovern) has created a storm. The drama revolves around a young man caught by the legal doctrine of joint enterprise. There have been calls from campaigners to reform the law because of injustices created. Did the programme represent the law on joint enterprise accurately?
The protagonist in "Common", Johnjo, is a young man who is sitting in a car in the opening scene, when his friends jump in and ask him to drive off. It transpires that one of his friends has stabbed someone. The knife is dropped down the drain. The victim dies in hospital. The perpetrator threatens Johnjo and his family with dire consequences if he "grasses". Johnjo thought they were going out for a pizza, but it turns out the other young men in the car went out to "get someone". The facts are a little contrived; Johnjo leaves the engine on and stays in the car because it's cold, rather than for a quick getaway. The detective's comments also seem rather OTT. He revels in his deceptive and pejorative portrayal of the scope of joint enterprise. The judge certainly would not claim that the courts could not change the common law. This is a major legal error.
The narrative that has been taken up in much of the press is that joint enterprise is a "dusty and illogical old law". However, as the Guardian points out, the doctrine enabled the conviction of two of the murderers of Stephen Lawrence. It was responsible for the conviction of Gnango for the shooting of an innocent bystander by "Bandana Man", during a gunfight which he was involved in. It enabled the conviction of members of the gang that killed Ben Kinsella.
The case law on the common law doctrine of joint enterprise suggests that Johnjo's involvement would not be regarded as acting with a common purpose. He was not part of a joint enterprise. The doctrine is justified on the grounds of policy. When two men killed a man during an attempted armed robbery of a gunshop in Dundee, each defendant lodged a special defence of incriminating the other. By the doctrine of joint enterprise, they were both convicted of murder. The same legal tactics will occur in killings by gangs. The leverage gained on the actual murderer by the prosecution's ability to convict by the doctrine of joint enterprise is a legitimate tactic to achieve justice where there are evidential difficulties. I think the portrayal of the dilemma posed even for the innocent by plea bargains was excellent though. It demonstrated the very real possibility of the factually innocent pleading guilty under such arrangements. The harshness of the doctrine is exacerbated by the mandatory life sentence for murder. The law has always had to tread a fine line between due process and policy considerations.
To move onto controversial real life cases, there was discussion of joint enterprise in another programme, Guilty by Association. This took a more balanced view of the law. Several cases were discussed, including the Alex Henry case. His sister, Charlottle May Henry, Tweeted that Alex Henry was found guilty of murder for "merely being present at a spontaneous altercation". This is not the case according to press reports of the trial. According to GetWestLondon:
"the victim and his brother were with friends in Ealing before Grant-Murray came across them in Northcote Avenue. An argument began and the defendant was allegedly heard on the phone saying ‘bring a knife’ or ‘bring the knives’. When the two other defendants approached, one or both of them were armed with knives and the three stabbed both Mr Khezihi and his brother in the back before running off."
The doctrine of joint enterprise requires acting with a common purpose. It is a part of accessory liability, whereby not only the perpetrator of the crime but all who were involved are guilty of an offence. Simply being present at the scene of a murder will not result in a conviction under joint enterprise. The fourth defendant was acquitted. He persuaded the jury that he was not involved in the murder. Henry and Ferguson were apparently asked to come with a knife or knives. If this was the case, this suggests that this was not a spontaneous altercation. The phone call is disputed however; Charlotte Henry kindly sent me more information about this issue. If there was no phone call, the case looks extremely flimsy.
My feeling is that Jimmy McGovern didn't succeed in portraying the reality of the law. There is a debate to be had about the scope of joint enterprise, but "Common" didn't provide the public with the necessary facts to make their minds up about the law. Even the media commentators failed to appreciate the relevance of the facts of the case. The jury weren't put to the question. The British jury of twelve peers have always been part of protection against oppressive laws. Of course, this is not an infallible safeguard against over-expansive laws and interpretations of laws - but the common sense and sense of justice of the British public is a bulwark against the excesses of the criminal justice system. As one barrister pointed out, the feeling of many is that people involved in gang crimes should be punished if they are part of that crime, not necessarily the actual knife or gun wielder.
The narrative that has been taken up in much of the press is that joint enterprise is a "dusty and illogical old law". However, as the Guardian points out, the doctrine enabled the conviction of two of the murderers of Stephen Lawrence. It was responsible for the conviction of Gnango for the shooting of an innocent bystander by "Bandana Man", during a gunfight which he was involved in. It enabled the conviction of members of the gang that killed Ben Kinsella.
The case law on the common law doctrine of joint enterprise suggests that Johnjo's involvement would not be regarded as acting with a common purpose. He was not part of a joint enterprise. The doctrine is justified on the grounds of policy. When two men killed a man during an attempted armed robbery of a gunshop in Dundee, each defendant lodged a special defence of incriminating the other. By the doctrine of joint enterprise, they were both convicted of murder. The same legal tactics will occur in killings by gangs. The leverage gained on the actual murderer by the prosecution's ability to convict by the doctrine of joint enterprise is a legitimate tactic to achieve justice where there are evidential difficulties. I think the portrayal of the dilemma posed even for the innocent by plea bargains was excellent though. It demonstrated the very real possibility of the factually innocent pleading guilty under such arrangements. The harshness of the doctrine is exacerbated by the mandatory life sentence for murder. The law has always had to tread a fine line between due process and policy considerations.
To move onto controversial real life cases, there was discussion of joint enterprise in another programme, Guilty by Association. This took a more balanced view of the law. Several cases were discussed, including the Alex Henry case. His sister, Charlottle May Henry, Tweeted that Alex Henry was found guilty of murder for "merely being present at a spontaneous altercation". This is not the case according to press reports of the trial. According to GetWestLondon:
"the victim and his brother were with friends in Ealing before Grant-Murray came across them in Northcote Avenue. An argument began and the defendant was allegedly heard on the phone saying ‘bring a knife’ or ‘bring the knives’. When the two other defendants approached, one or both of them were armed with knives and the three stabbed both Mr Khezihi and his brother in the back before running off."
The doctrine of joint enterprise requires acting with a common purpose. It is a part of accessory liability, whereby not only the perpetrator of the crime but all who were involved are guilty of an offence. Simply being present at the scene of a murder will not result in a conviction under joint enterprise. The fourth defendant was acquitted. He persuaded the jury that he was not involved in the murder. Henry and Ferguson were apparently asked to come with a knife or knives. If this was the case, this suggests that this was not a spontaneous altercation. The phone call is disputed however; Charlotte Henry kindly sent me more information about this issue. If there was no phone call, the case looks extremely flimsy.
My feeling is that Jimmy McGovern didn't succeed in portraying the reality of the law. There is a debate to be had about the scope of joint enterprise, but "Common" didn't provide the public with the necessary facts to make their minds up about the law. Even the media commentators failed to appreciate the relevance of the facts of the case. The jury weren't put to the question. The British jury of twelve peers have always been part of protection against oppressive laws. Of course, this is not an infallible safeguard against over-expansive laws and interpretations of laws - but the common sense and sense of justice of the British public is a bulwark against the excesses of the criminal justice system. As one barrister pointed out, the feeling of many is that people involved in gang crimes should be punished if they are part of that crime, not necessarily the actual knife or gun wielder.
You also fail to be concerned by the appearance of 3 women at the end of the film. Would it not have been a better use of your time to research their cases and to check out JENGbA rather than pretending British justice was perfect and Jimmy McGovern was wrong. They said he was wrong about Bloody Sunday but he wasn't... They said he was wrong about Hillsborough... And he wasn't... Are you saying he is wrong about joint enterprise? Because trust me he isn't. You unfortunately are the one tat is wrong. By the way are you aware that Jade Braithwaite has maintained his innocence for 6 years? Take care and follow @JENGbA to learn more
ReplyDeleteWhere am I wrong? Make an argument please.
DeleteFrom my viewing of the documentary, I think it is important to note that in the Alex Henry case, the fourth defendant was acquitted because the CCTV showed he was trying to stop the argument. However, if there had been no CCTV the prosecution case would probably have been that his presence at the scene was encouragement. They would have emphasised that he did not withdraw, he knew the people involved and therefore would have had foresight that violence would have ensued. This is where mere presence at a scene can be enough to convict because without a defendant being 'lucky' enough to have this kind of CCTV evidence they may not be able to persuade the jury that they were not involved. The outcome for him could have been very different.
ReplyDeleteThat's pure supposition. No reasons given for conviction nor acquittal in UK.
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