on a frolic of his own
October 25, 2014 2:53 PM   Subscribe

‘You do not need to deliver the fatal blow or even be at the actual scene of the killing to be found guilty and sent to jail,’ Detective Inspector John McFarlane said after the conviction of 17 of the 20 young people jointly charged with the murder of 15-year-old Sofyen Belamouadden at Victoria Station in March 2010: ‘the law on joint enterprise is clear and unforgiving.’

"To be found guilty of murder as an individual it must be proved beyond reasonable doubt that you intended to kill or cause serious harm resulting in death. But under joint enterprise there is no need to prove that you intended to commit the crime, and you don’t have to be the person who plunged the knife or pulled the trigger. You can be convicted on what’s known as secondary liability on the basis that you must have realised that someone you were with might commit a violent act with that intent, even if you didn’t share it.

On the afternoon of 6 August 2013 Alex Henry, Janhelle Grant-Murray, Younis Tayyib and Cameron Ferguson, all aged 20 or 21, were involved in a fight in an Ealing street. The fight lasted around forty seconds and resulted in the death from a single stab wound of 21-year-old Taqui Khezihi; his brother Bourhane, aged 24, was also stabbed but survived. The four young men were charged under the law on joint enterprise and tried at the Old Bailey earlier this year. They all pleaded not guilty to murder and wounding with intent to cause serious bodily harm. The four weren’t described in court as gang members but, accurately enough, as a tightly knit group of friends. The prosecution emphasised their closeness in order to show that if one of them was carrying a knife on the day of the murder, the others would have known and therefore should have realised that it might be used to kill or cause serious harm."
posted by standardasparagus (24 comments total) 13 users marked this as a favorite
 
Conspiracy serves the same purpose in the states -- for example, the guy who installed secret compartments in cars and was convicted in a state to which he'd never been: DEA Trap (previously)
posted by RobotVoodooPower at 3:11 PM on October 25, 2014 [2 favorites]


The English law on joint enterprise is, I think, ridiculous, particularly in murder cases, where it must taken in combination with the problematic nature of the mandatory life sentence for murder. The idea that someone acting with no intent to cause bodily harm can be a murderer seems contrary to good sense and natural justice.

It's clear, to me at least, that we need full homicide reform in the UK, as well as reform of the law of joint enterprise. Our current system is outdated and, frankly, outlandish.
posted by howfar at 3:13 PM on October 25, 2014 [6 favorites]


Waiting for this logic to be fully applied. Next day, prosecutor calls the police on their self: "I knowingly participated in a system that caused these young men great harm, and I would have gotten away with it too if it weren't for those not-meddling enough kids!"
posted by tychotesla at 3:54 PM on October 25, 2014 [7 favorites]


It strikes me that this is comparable to the crime of "Felony Murder", which likewise doesn't require you to be present at the violent death, let alone to have been the killer.

I think both are very reasonable laws and I support them fully.

For instance, this case. Three young men armed themselves and broke into a home in order to rape a 19 year old woman there. Her grandfather shot all three of them, and himself was wounded by several gunshots.

The three wounded guys stole Grampa's car and fled in it. One of them was later found dead in the car, and the other two ended up at hospitals, where they were arrested.

They are going to be charged with felony murder for the death of their comrade, and rightly so. (Along with about 19 other crimes. It's quite a list.)

Grampa, on the other hand, is free and clear (and apparently recovering from his wounds, thank goodness).
posted by Chocolate Pickle at 3:58 PM on October 25, 2014 [1 favorite]


Chocolate Pickle, this thread is not about the laws of the United States.
posted by Rumple at 4:01 PM on October 25, 2014 [10 favorites]


No, it's about the idea that someone can be guilty of murder under the law even though they didn't pull the trigger. And I think that is a good law. I don't think its application is a miscarriage of justice.
posted by Chocolate Pickle at 4:04 PM on October 25, 2014 [5 favorites]


I don't think its application is a miscarriage of justice.

20 year old gets life without parole for lending his car to a housemate.
posted by dephlogisticated at 4:10 PM on October 25, 2014 [12 favorites]


He knew the housemate wanted to use the car to commit a violent crime. That makes him an accomplice.

I think this was a good conviction.
posted by Chocolate Pickle at 4:13 PM on October 25, 2014 [3 favorites]


howfar, I don't find the English mandatory life sentence for murder to be especially problematic, given how rare it is that people are given whole life tariffs, and how parole can be available within relatively short timespans, although the sentencing guidelines have gone up considerably in the past 10 to 20 years, as mentioned in the article. I agree with the linked article about the need for a second degree murder charge. I know of someone in Birmingham who killed someone with a single provoked punch in a pub in an otherwise very placid life who was convicted of murder, and it would be for example useful if he were on a second-degree murder charge.

The examples of joint enterprise given in the linked article are horrifyingly oblique enough that there's no need to bring in other cases. In the case of the woman killed in the crossfire between Bandana Man and Armel Gagno, I can see the argument that Gagno's returning fire caused Bandana Man to fire the fatal shot which caused a murder through reckless disregard for the bystander's life. Had it hit an accomplice of Gagno, I would find it harder to say that Gagno had caused the deliberate killing of his accomplice, but it is definitely an anomalous seeming hair to split.
posted by ambrosen at 4:22 PM on October 25, 2014 [3 favorites]


I am almost completely incapable of understanding how anyone could read use cases of those sorts of laws like that and not just see it as another cog in the meat grinder of the criminal justice system. I don't think you can really throw away the fact that every case linked so far involves a young black man, either. This just feels too much like the male version of that whole "women going to prison for not somehow stopping their abusers" thread where it was all women of color front to back.

You can be convicted on what’s known as secondary liability on the basis that you must have realised that someone you were with might commit a violent act with that intent, even if you didn’t share it.

I'm curious as to how far it goes, because from everything i've read every time this has come up, and what i understand, it could be something like "you're riding in a car with friends to go get fast food, one of them sees someone they have a problem with, jumps out of the car, a fight ensues and someone ends up dead" would count under this. You don't have to know that person, or even know your friend had a problem with them. It seems like you're just supposed to know in some ESP way. As long as they can prove a doubt that you may or may not have known, you're probably hosed, no?

That grandpa case you brought up, chocolate pickle, is like the perfect TV feelgood case. Everything else discussed here is a lot shittier. And i'd bet the run of the mill uses of this we don't hear about are even crappier.
posted by emptythought at 4:24 PM on October 25, 2014 [6 favorites]


They are going to be charged with felony murder for the death of their comrade, and rightly so.

You don't say why you think this is right. English law has, in fact, abolished the travesty of felony murder (Homicide Act 1957), which is a significantly different thing to joint enterprise.

The law usually aims at precision. In theory, if you do certain things, with certain intentions, you can expect certain consequences. If you stab someone, meaning for them to be really seriously harmed, and they die, then you are a murderer. But only if you intend them to be really seriously harmed. But the person standing next to you, who never even touched the victim, can be convicted of murder without having that intent. That is imprecise, unclear and unpredictable. It is, in my view, bad law, no matter what one's moral stance.

If you want to defend the English law of joint enterprise, I think you need to explain why it's acceptable for the rules of act and intent to become so malleable and unclear in this context.
posted by howfar at 4:27 PM on October 25, 2014 [14 favorites]


When joint enterprise was introduced to Continental lawyers in the war crimes trials after World War II, they were horrified. How could a court convict someone of a crime that he could not have even known about at the time it was committed? Of course other legal systems have their own ways of dealing with the issue - dolus eventualis allows courts in Germanic legal systems to find a person culpable for crimes committed as the inevitable result of legally wrongful acts he set into motion, for example. But joint enterprise always did seem to me, as howfar says, too blunt of a tool for a modern legal system. When we can determine what each conspirator knew or didn't know, why are we pouring gasoline onto all of them and then just tossing a match? Surely we can assign blame more accurately than that?
posted by 1adam12 at 4:38 PM on October 25, 2014 [4 favorites]


You don't say why you think this is right.

The Felony Murder rule applies to cases in which the perps have decided to commit a violent crime which has a considerable chance of ending up with one or more people dead. Knowing this, they choose to proceed anyway.

If, as a result, someone does die, then the perps should be held fully responsible for the death no matter who it was that died or how they were killed.

English law has, in fact, abolished the travesty of felony murder (Homicide Act 1957)

It wouldn't be the first time that the British and Americans have disagreed about things. That doesn't mean we Americans are wrong. In case you hadn't heard, the US isn't part of the British Empire any longer, and we make our own decisions now.

And it sounds like this particular British prosecutor has decided that the Americans are right after all, and found a way around this exclusion in the Homicide Act 1957.
posted by Chocolate Pickle at 4:47 PM on October 25, 2014 [1 favorite]


I don't think you can really throw away the fact that every case linked so far involves a young black man, either.

The first named person convicted in the linked article is white, one of the cases in which joint enterprise was used for a conviction (the murder of Stephen Lawrence) was the racist murder by white people of a black teenager, and two of the cases (the murder of Garry Newlove and of Andrew Ayres) involve a white victim and white murderers.

Assuming we are talking about the generally fairly constrained circumstances in the LRB article, where (with the exception of the Bandana Man case) there are a group of people involved in a fracas where someone gets killed who are convicted under joint enterprise, then it doesn't seem especially discriminatory in what circumstances it's applied, but there is a fairly wide spectrum as to how close the people convicted were to the actual circumstances of the killing.
posted by ambrosen at 4:55 PM on October 25, 2014 [3 favorites]


If, as a result, someone does die, then the perps should be held fully responsible for the death no matter who it was that died or how they were killed.

Yes. Often this is referred to as manslaughter, or being an acccomplice.
posted by Quilford at 5:01 PM on October 25, 2014 [2 favorites]


So. If I purchase a knife, and I tell my friend I intend to go stab someone with it, and I borrow his car.

I then get involved in a car accident - through the fault of the *other* driver entirely - they ran a red light or sommat - and the passenger in the other car dies.

Can my friend be tried under joint enterprise? I admitted intent to him. I was prepared and ready to cause grievous bodily harm, and my friend knew it.

In the course of executing that intent, someone died.
posted by jefflowrey at 5:01 PM on October 25, 2014 [1 favorite]


And it sounds like this particular British prosecutor has decided that the Americans are right after all, and found a way around this exclusion in the Homicide Act 1957.

OK. So we're clear, that's not what is happening here. This is not new law, and it wasn't made by a prosecutor.

The key case law here is the 1999 House of Lords judgment in the cases of Powell and English. In Powell, the defendant went with his friend to buy drugs, with no intention of violence. He knew his friend had a gun. Things went wrong and his friend shot someone, dead. Knowledge of the gun was deemed sufficiently strong evidence to uphold the conviction. On the other hand, in English, the defendant was a party to an attack, in which it was agreed beforehand that fenceposts would be used. During the course of this, another attacker pulled out a knife and fatally stabbed the victim. The House of Lords quashed the conviction in that case, on the basis that the defendant had no knowledge of the particular weapon, even though he actually participated in the attack.

This is clearly a substantially different thing to felony murder.

Also, if you want to discuss US law in a thread about British law, feel free, but I don't think you need to bring colonial history into it when people who know a bit about the subject point out that it's not actually that relevant.
posted by howfar at 5:10 PM on October 25, 2014 [22 favorites]


"you're riding in a car with friends to go get fast food, one of them sees someone they have a problem with, jumps out of the car, a fight ensues and someone ends up dead"

It doesn't seem like that would be enough to establish joint enterprise (or, in the US, conspiracy). Of course, just because someone says that's what happened doesn't mean that the jury necessarily believes them. (Saying nothing about the objective truth of what might have actually happened, which is of course largely unknowable.)

Where I think you could get into joint enterprise / conspiracy territory, based on my understanding of common law anyway, is if your friend said "I'm gonna go kill that S.O.B., oh and can you drive? This gun in my pants really makes it hard to steer" and then en route, friend jumps out and pops the guy he has a problem with. That's pretty clearly conspiracy to commit murder on your part.

Of course, in real life it's rarely clearly one way or the other. If you got caught in the second scenario, you would doubtless claim that it was the first one ("we were just driving to McDonalds, I had no idea my friend was going to do that, honest!") and based on a lot of factors--and this is where the whole questions of bias come in--the jury might decide that it doesn't believe your story over the alternative, and convict you anyway.
posted by Kadin2048 at 6:04 PM on October 25, 2014


Here's a link to the recent BBC drama which covers the topic, though I don't think it's streamable.
posted by RobotVoodooPower at 6:29 PM on October 25, 2014 [1 favorite]


The linked article is so poorly-written that it is hard to know what to think.

Grant-Murray had met the Khezihi brothers when he was on his way to Tayyib’s house. There was a confrontation. Tayyib arrived and tried to calm the situation; Henry and Ferguson turned up too. Henry told the prosecution under cross-examination that he thought Grant-Murray, who had been stabbed a few weeks before in Henry’s company, was in danger. ‘My natural instinct was to help him,’ he said. The prosecution case was that Henry had a knife in his shoulder bag. But there was no evidence of this on CCTV footage and none was found subsequently. There was no doubt, however, that Ferguson had a knife.

What?
posted by LarryC at 2:17 AM on October 26, 2014 [2 favorites]




A letter in the following issue of the LRB (scroll down to the third letter) challenges some of the statements in the original article: "One cannot be convicted merely ‘on the basis that you must have realised that someone you were with might commit a violent act with that intent, even if you didn’t share it.’ One must first agree to commit a criminal offence with the perpetrator of that violence."
posted by zeri at 9:51 AM on October 26, 2014 [2 favorites]


Similar to the LRB letter zeri highlights above, a UK lawyer on a legal blog criticizes Jimmy McGovern's TV drama Common, which attacks the joint enterprise law on similar lines as the LRB article, for inaccurate representation of the law:
"What do you do, though, when a suspect says: ‘I only thought my guy was going to beat the witness up’ or ‘I didn’t know the rest of my gang had guns’? It is when someone’s actions assist or encourage a crime, but they say they only intended a lesser offence to be committed, that the rules as to ‘joint enterprise’ come in."
posted by Bwithh at 10:10 AM on October 26, 2014


Indeed, zeri. The original article is unjustifiably unclear, but I'd suggest that the letter writer is a little disingenuous in his approach to the subject too. The fact is that, "undesirable" though it may be to charge and convict people of murder when they had no violent intent and did no violence, it is the law of the land that such people are culpable as accessories.

The Crown Prosecution Service have to determine whether to prosecute based on the question of public interest. It is my view that the boundaries of murder should be drawn in such a way as to avoid a situation where it is routinely "undesirable" and not in the public interest to prosecute people who are demonstrably guilty of the offence. It's bad law and it leads to injustice.
posted by howfar at 10:15 AM on October 26, 2014


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