Joint Enterprise
March 9, 2018 3:26 AM   Subscribe

How do 11 people go to jail for one murder? The increasing visibility of such convictions in the last decade-and-a-half has caused joint enterprise to suffer from what the Prison Reform Trust calls a “deficit in legitimacy”. A Guardian long read on joint enterprise, 'gangs', racism and the justice system.

Harry Stopes' Twitter feed has some more background information on the case, including quotes from the family members of the convicted.
posted by threetwentytwo (13 comments total) 11 users marked this as a favorite
English law of joint enterprise is a sick nonsensical joke. Parliamentary action is needed to remedy it, but it's a stain on the English legal profession that it has persisted and developed in common law as it has.
posted by howfar at 5:26 AM on March 9, 2018 [5 favorites]

Is TFA arguing that "joint enterprise" is wrong or that it is unfairly applied ?

The lede sure doesn't seem to support that joint enterprise is wrong - they chased and beat him as a group. I doubt they all wanted to kill him (just the stabby guy), but they all participated in chase, capture and the kicking/stomping/beating.

(The US has similar - if you're the getaway driver in a bank robbery, and the robbers shoot someone, the driver is also guilty of murder.. )

Unfairly applied ? I'm inclined to agree with - poor and/or minority tend to get the brunt of such laws. The kids don't appear to be a formal gang in any sense.
posted by k5.user at 7:05 AM on March 9, 2018 [1 favorite]

They didn't all chase and beat him as a group - they all followed along for at least part of the chase, but it's not at all clear whether they were really thinking "we're going to chase this guy and fuck him up" or just "we're young people, we're kinda chasing him to see what happens, maybe a few punches will be thrown". One guy was totally acquitted, in fact, because he plausibly argued that he was only following along to look after the younger kids.

Only a few - witness accounts differ but it seems like no more than five and maybe only three - actually beat the guy, and they all cleared off except the guy who killed him.

Honestly, a lot of this seems to rely on a sort of cultural sleight of hand where people pretend they don't understand how fights work. And maybe the jury is chosen from people who genuinely don't know how fights work and can easily be persuaded through appeals to racism that "following a group who are chasing a guy who was throwing rocks at them" is somehow the same as "planning to catch up to him and murder him".

If someone were throwing rocks at my group of friends and people started to chase him off, I'd follow along! What would I do otherwise? I'd want to know what happened, and I'd want to be part of a big group so that we could convince him that throwing rocks at us was an unsafe practice. My assumption would be that being chased by a big group of people would scare him off with no actual violence, because that is what has happened in almost every related physical confrontation I've ever witnessed. Failing that, I'd assume that a few punches would be thrown and then he'd clear off. That's how fights usually work - they're 9/10 performative.

If it turned out that someone in my extended social circle intended to settle a score by stabbing the guy, I would be astonished and probably wouldn't even realize that it was happening until too late.

The whole "this was obviously a murder-fest" line of reasoning depends on the police (and everyone who knows how this stuff works) pretending that casual punchy violence doesn't really exist but is instead always Kray-like premeditated and purposeful assault. And it depends, I assume, on getting a jury of middle class mostly-white people who don't understand how this stuff works and think that Black or poor people are all dangerous and bad anyway.

Another factor: although this is probably a bigger problem in America than in the UK, I assume that these people didn't trust the police. So if the poor kid who was killed really was a troubled and dangerous person who threw rocks and was violent, the natural response by this group would probably be "he's throwing rocks, let's run him off and maybe he'll learn better next time", not "let's call the police and report a rock throwing".

Someone throwing rocks at you with intent can hurt you - I was once in a situation where there was someone who had paranoid episodes and would punch people or throw rocks, and he was a strong young adult. IIRC, he threw a rock with enough painful force that the shock/impact knocked someone off her bike. (It was sad, because he got delusions - it wasn't out of the desire to hurt people.) If someone who had a history of violence was throwing rocks at me, I would want to address the matter.

This type of prosecution all depends, IYAM, on people acting as though they really believe that the lives of working class people are totally incomprehensible and pathological because pretending to believe this allows them to vent their racism and class hatred.
posted by Frowner at 7:32 AM on March 9, 2018 [28 favorites]

because pretending to believe this allows them to vent their racism and class hatred.

Maybe; kinder interpretations are possible.

I’ve heard it argued that joint enterprise, though flawed, is beneficial because it means if you’re on the periphery you have an interest in preventing the crime. One problem with that is that the people who are likely to be in a position to experience that incentive have probably never heard of joint enterprise.
posted by Segundus at 8:15 AM on March 9, 2018

The example given for proper use of joint enterprise was "three people hold down a man so the fourth can stab him." That sounds like a pretty good use.

This, on the other hand, sounds like a bunch of kids acting like kids, a half of them getting violent, and only one of them getting stabby.

The "gang" thing is pure racist conjecture. My wife and and I both have extended friend groups we used to hang out with in high school. Those groups even had names, as a convenient shorthand. But they weren't gangs! Kids like descriptive labeling, it helps them make sense of the world.

This usage of joint enterprise is a perversion of the law. It makes someone liable for a crime not only if they participated, but even if they were merely present, and failed to prevent the crime. You can be a felon if your friend commits a felony in your presence? That's ludicrous!
posted by explosion at 8:56 AM on March 9, 2018 [11 favorites]

The US has similar - if you're the getaway driver in a bank robbery, and the robbers shoot someone, the driver is also guilty of murder.. )

And most lawyers consider this a terrible rule. You all do not need to be borrowing our criminal jurisprudence; it will not help.
posted by praemunire at 10:21 AM on March 9, 2018 [8 favorites]

It's interesting to compare and contrast with corporate malfeasance where no one can be prosecuted.

It suggests a place for reform to avoid oversteering into the extreme above but think much more deeply about the law's misuse.
posted by eyeofthetiger at 10:42 AM on March 9, 2018 [5 favorites]

Yeah, the felony murder rule is not something I'd like to see duplicated, or for that matter, exist. IAN even AL.
posted by rhizome at 12:37 PM on March 9, 2018

they chased and beat him as a group. I doubt they all wanted to kill him (just the stabby guy), but they all participated in chase, capture and the kicking/stomping/beating.

Even if this were the case, the principle that you can infer the existence of mens rea to cause death or grievous bodily harm from having participated in an attack that led to death is, in my view, iniquitous. The state of the law, post Jogee, is certainly much better than it was for the three decades prior (when it was just insane), but it's not fixed. Judges are still allowed to direct juries that they may infer intent based upon mere participation in a lesser offence, rather than from actual evidence as to intent.

For clarification, the charging standard for s18 assault (that is, causing grievous bodily harm with the intent to do so) suggests the following as factors which may indicate a specific intent to do GBH:
a repeated or planned attack;
deliberate selection of a weapon or adaptation of an article to cause injury, such as breaking a glass before an attack;
making prior threats;
using an offensive weapon against, or kicking the victim's head.
So, in a case where a person has actually physically committed the crime themselves, the sort of evidence that will usually be looked for about their mens rea will be the sort of direct evidence that most reasonable people would expect. In common purpose cases, the evidence that juries are often directed towards is much more circumstantial, e.g. were the other parties aware of a weapon, did they act in a way consistent with an intention to cause GBH (even where it is also entirely consistent with many others intentions), etc.

Society is rightly horrified by murder, and I don't think it's wholly unreasonable for us to have laws that seek to deter it and actions which gives rise to a risk of it, but I think it's important that standards of evidence are consistent and clear; I do not believe that they are when it comes to common purpose.
posted by howfar at 1:05 PM on March 9, 2018 [2 favorites]

So... in the US or the UK, setting aside the getaway driver inferred intent circumstances, what happens if someone plots with and pays a hired killer to kill someone—so that there's explicit and unambiguous intent—but isn't present during the killing? Is the person hiring the killer charged with something other than murder?

I am confused by the OP article's emphasis on whether or not convicted "joint enterprise" participants were present during the killings or not, and by the subheading on the story "Can you be convicted of a killing if you weren't there when somebody else dealt the fatal blow?" because I have heard the phrase "murder for hire" and previously taken that to indicate that you can definitely be convicted for killing, and even specifically of murder, even if you weren't present or did not strike the fatal blow.

(I realize the OP article isn't describing a case of murder for hire, it just seems to be proceeding from an invalid premise.)
posted by XMLicious at 9:51 PM on March 9, 2018

Frowner: And maybe the jury is chosen

Frowner, we don't do jury selection in England,* or at least not in the way it happens in the US. The only normal ground of objection is that a juror knows a party or witness in the case.

Jury Selection - UK Criminal Law Blog

The prosecution has a 'right of stand by' in cases involving terrorism or national security, but only in such cases.

The idea that a jury can be selectively cherry-picked to achieve the 'right' panel is, along with the concept of elected judges, a feature of the legal systems of US states that appalls and horrifies many lawyers over here.

(*'England' - or more accurately 'England and Wales', not 'the UK', because Scotland and Northern Ireland have their own distinct legal systems. Although I understand neither of those countries do jury selection either.)
posted by Major Clanger at 1:42 AM on March 10, 2018 [2 favorites]

Jury service in the UK is very much like conscription is in the States, but with fewer "excusables".
posted by Burn_IT at 7:35 AM on March 10, 2018

XMLicious: I believe you also get charged for murder if you hire someone. You’ll also get charged with conspiracy to commit murder.

Source: I watch a lot of Forensic Files, Dateline, and 48 Hours Mystery. HLN & IDHD is full of these.
posted by LizBoBiz at 11:54 PM on March 10, 2018 [1 favorite]

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