Joint Enterprise and the wheels of justice

Will McMahon
Friday, 2 September 2016

Yesterday I attended an excellent conference ‘Joint enterprise after Jogee – Reconsidering law and Policy’, organised by the University of Liverpool.

Its central strength lay in bringing together legal theorists and practitioners alongside Lord Toulson, Justice of the UK Supreme Court, and the campaigners from Joint Enterprise Not Guilty by Association (JENGbA).

My contribution focused on the ethnic disproportionality in joint enterprise convictions, as shown by the Centre’s February 2016 report, Dangerous associations: Joint enterprise, gangs and racism.I placed the findings of this report within the context of the systemic discrimination experienced by black people, as demonstrated by my colleague Matt Ford’s work on the ethnic penalty.

I also suggested if we are to get to grips with the ethnic inequalities in criminal justice then this can be only done if our country comes terms not only with its colonial past, but also the inequalities that past has embedded deep within our social structures.

Looking across the Atlantic, it is not hard to see the threads connecting plantation slavery to the current crisis of policing of black people in the United States. The long-term consequences of Britain’s leading role in slavery, and the racism embedded in our society, needs to be properly debated and discussed.

The concerns the Centre has expressed about the fate of young Black people in both the criminal justice system and wider society have recently been confirmed by the Equality and Human Rights Commission report, Healing a divided Britain. Published in mid-August, the report states that for young Black people ‘life on many fronts has got worse’ in the last five years.

For some young Black people, given long sentences prior to the recent Supreme Court ruling due to the now discredited application of the principle of ‘foresight’ in joint enterprise cases, it has got a lot worse.  For them, and all those for whom the notion of foresight played a key role in a guilty verdict, the aphorism that ‘the wheels of justice turn slowly’ is a lived experience.

The JENGbA campaigners are a hardy bunch. They have had to be as they have engaged with the full might of the law with some success. They have their own legal theorists born of the necessity to understand why loved ones are serving long sentences due to some finer points of law.

Still, I was struck by the basic incongruity and inequality of arms: between a powerful legal system that has consigned hundreds of fellow citizens to long terms of imprisonment for harms they played no part in, and the imprisoned and their families, who have to work through complex legal processes to attain some form of justice.

Even if the Supreme Court accepts that a misapplication of law has taken place, it seems that those who are innocent but imprisoned still have to prove that they are victims of an injustice.

The current state of affairs is perhaps a mirror image of Blackstone’s 18th century formulation that ‘It is better that ten guilty persons escape than that one innocent suffer.’