Joint Enterprise: a double tragedy

Will McMahon
Monday, 25 January 2016

Shortly after we advertised the events launching the publication of Dangerous Associations: Joint enterprise, gangs and racism, I received a brief e-mail stating ‘it is not just Blacks and Asians, it is the poor of all colours’. This is true. There is no doubt in my mind that there are people of all skin colours serving long sentences for offences they did not commit as a result of the doctrine of joint enterprise.

However, this new research from Patrick Williams and Becky Clarke indicates that there is another dimension for many of those unjustly imprisoned under joint enterprise. For some time now the Centre has been exploring the notion of an ‘ethnic penalty’ – which refers to the disadvantages that lead to a minority ethnic group faring less well than similarly placed ‘majority’ white people across a wide variety of social and economic life. The data put together by my colleague Matt Ford are stark when it comes to the life experience of young black men in terms of education, housing and income, to name but three.

So the disproportionate punishment of young black men under joint enterprise may be simply another example of those with a black skin, from the same income group as those with a white skin, faring less well. But rather than simply ‘faring less well’, they are being punished more often and for longer.

For some young black men, a lengthy sentence under joint enterprise is the final sanction in a short life of experiencing repeated discrimination. This begins with school exclusion. Government data shows a greater proportion of children from most black backgrounds get permanently excluded compared to other ethnic groups. The permanent exclusion of black Caribbean children exceeds that of White children by three to one. As Matt Ford points out:

‘Being excluded isn’t just an unpleasant and unjust experience for the child and their family at the time. It also affects attainment whereby children who are excluded are four times as likely to leave school with no qualifications. Even a government report published a decade ago called Getting it, getting it right found that black pupils were punished more severely, more often, and for less serious transgressions than white pupils’.

These unpleasant and unjust experiences are repeated across early life, in what United States policy circles describe as the school to prison pipeline. Dull but pernicious administrative processes, combined with a racism long embedded in British society, means many young black boys, as they grow into young black men, have faced a variety of institutional and social exclusions, with catastrophic outcomes for some.

For example, you are much more likely to be excluded from school; much more likely to be stopped and searched by the police; much more likely to have been put on a ‘gang’ database by police and other local authorities; much more likely for that to bring you under the police gaze; much more likely for your presence on the database to be used as evidence against you at trial; much more likely that the prosecution will insinuate a shared interest and association through ‘rap music’ or ‘gang insignia’ and skin colour; and, finally, much more likely to end up with a very long sentence. This is because the claimed ‘gang’ membership, and prosecution strategy may lead a jury to conclude that you had the foresight to know what was going to happen next: foresight and ‘associations’ being the crucial aspects of a joint enterprise prosecution.

At the heart of this is a double tragedy, one of the lives brought to an end by a fatal incident and the need for loved ones to feel that justice has been served through a prosecution. This is compounded by another: a person sat in a cell for years or decades because of a simple twist of fate.

In many cases it is enough for a defendant merely to be acquainted with the guilty party; indeed, a defendant does not need to know the guilty party at all. As one prisoner convicted under joint enterprise provisions told the report authors:

‘I was not a gang member. I know both of the intended victims and I had and do not have any conflict with them’.

The consequences of conviction under joint enterprise can be devastating for the defendant, their families and the wider community. Another prisoner in the report says:

‘I was a mother studying to be a midwife. My partner was an electrician, we had a life, we did not “hang around” with anyone’.

Is it not time that the dangerous association between joint enterprise, ‘gangs’ and racism was put under much closer scrutiny? Should there not be a greater challenge to the validity of police ‘gang’ databases, which can be used to claim evidence of bad character? Can anyone be satisfied living in a society where, as a result of the colour of a person’s skin they may face a catastrophic miscarriage of justice?

I hope that discussion of this new publication will prompt a serious reconsideration of the use of joint enterprise. The evidence indicates that such a step is more than overdue.

Also, see Ethnicity, harm and crime: discussion paper by Rebecca Roberts and Will McMahon