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"Guilt by association" laws targetted black communities. Changes bring hope to thousands

An historic Supreme Court ruling on joint enterprise could open the floodgates for many BAME prisoners to appeal their convictions.

Colin Joseph
16 March 2016
Wayne-Collins.jpg

Wayne Collins, sentenced to 18 years under Joint Enterprise laws

Last week, it could finally be reported that the first two defendants in a murder trial at the Old Bailey walked free from court following the recent Supreme Court ruling on joint enterprise.

Days after the joint enterprise ruling last month (18th February) the Old Bailey trial against Khalid Hashi, 23, and 24-year-old Hamza Dodi was thrown out by the judge following a legal bid by defence lawyers. Both men were accused under joint enterprise law of being part of a gang that stabbed to death a 24 year-old man from Plumstead in London.

Only one man, Osman Musa Mohamed, 20, was convicted of the murder on Monday (7th March) despite evidence heard in court that more than one person was involved in the fatal stabbing. Mr Mohamed was jailed for life with a minimum term of 22 years.

But now that the case has been heard reporting restrictions have been lifted on the effect the Supreme Court ruling had on the case of the two defendants (Khalid Hashi and Hamza Dodi). According to the prosecution, the Supreme Court ruling on joint enterprise (mid-way through the Old Bailey trial) had fatally weakened their case and the judge had no alternative but to let the two defendants walk free.

Joint enterprise is not a new law, but it has been developed by the courts to allow for more than one person to be charged and convicted of the same crime. Under joint enterprise, a number of people can be prosecuted collectively for an offence committed by only one person if it can be proven that the participants were working together in some way. All parties are convicted of the actual offence and can expect very lengthy prison sentences. In some instances it is enough for a defendant merely to be acquainted with the guilty party to be convicted of a crime.

But weeks ago five Supreme Court judges unanimously agreed in a landmark ruling that joint enterprise had been ‘wrongly interpreted’ for more than 30 years. According to the ruling, the misinterpretation in joint enterprise cases was to treat foresight (knowledge of a crime) as a punishable crime in itself.

The Supreme Court ruling has now corrected this by stating that intent must also be proven and that foresight on its own is not enough to get a conviction. Foresight is simply evidence of intent to assist in or encourage a crime.

The new ruling was given after considering the cases of Jogee and Ruddock, both of whom were wrongly convicted of homicide under the old foresight test for joint enterprise. Legal experts now believe that there could be 1000s of appeals from prisoners convicted under joint enterprise which has been used often to convict and sentence many people from BAME communities.

A written submission on the joint enterprise to the Justice Committee in 2014 by the Institute of Criminology at Cambridge University helped to shed light on the alarming numbers of BAME prisoners who have been convicted under this law. Survey data from the Cambridge submission shows that the number of Black/Black British people in prison for joint enterprise offences was 11 times greater than the proportion of the general Black/British population (37.2% compared to 3.3%). Mixed race prisoners were also considerably overrepresented.

And Research by the Bureau of Investigative Journalism ,also in 2014, shows there were at least 1,800 and up to 4,590 people prosecuted for homicide under joint enterprise between 2005 and 2013. Joint enterprise is also regularly used for lesser offences – so the total number of joint enterprise prosecutions and possible appeals is likely to be very significant

For the family and supporters of prisoners like Wayne Collins, a 28 year-old barber from Luton who was convicted under joint enterprise law – the Supreme Court ruling will give renewed hope to future appeals.

Wayne Collins (who is mixed race) was found guilty of being part of a gang that shot at police and vandalised and set fire to a pub during the 2011 riots in Birmingham. He was sentenced to 18-years in prison. But according to Wayne’s family and supporters, he was in the wrong place at the wrong time and had simply travelled to Birmingham by car with friends to enjoy the city’s bank holiday carnival.

Convicted under joint enterprise: Wayne’s story

On his second day in Birmingham after a night out, a friend took Wayne (he was unfamiliar with the city) to retrieve his parked car when they passed a pub where a group of 15 or so men had gathered. The men started to smash up the pub and set fire to it. Wayne (who is mixed race and claims he did not know the men) stayed where he was as the group began to wreck the pub. He started running with the crowd when the police arrived along with a police helicopter. During this time at least a dozen shots were fired at police, but CCTV footage shows Wayne did nothing other than stay with the group.

Wayne was with the group of men during the unrest when shots were fired at police and when the pub was vandalised and set alight. But he had no previous convictions before the incidents and even the judge presiding over the case at Birmingham Crown Court, said that Wayne ‘played no active role’ in the rioting. Despite this the judge gave Wayne a lengthy prison sentence under joint enterprise law.

Wayne was sentenced to six years in prison for rioting despite the judge’s assertions that Wayne did not participate in the rioting.

Wayne was also given a further six years for arson and being reckless as to endanger life, following the incident at the pub, despite playing no part in the events. In sentencing the judge said ‘his (your) presence at the pub had encouraged others’.

A further six years were handed down to Wayne under joint enterprise law because he knew one of the defendants that knew the man who was found guilty of firing a gun. Wayne maintains that he did not know the gunman himself and it was established in court that he did not have a gun and had never touched one. Wayne was sentenced to a total of 18 years in prison.

Wayne’s sister, Chanel Collins, said: “He was there when it was all happening but he wasn’t involved.

“It’s upsetting. He’s my brother and he got 18 years for doing nothing. It makes you think the police and justice system are not working properly.”

Joint enterprise is often used as a collective punishment within BAME communities and for youth crime more generally because of it’s effectiveness at convicting groups of young people who hang around together. It is considered by experts in the field as unfair and discriminatory against people for being poor, young, black, asian or from other ethnic minorities.

Joint enterprise has been especially effective in convicting, sentencing and criminalising large numbers of young black men in the UK.

Unfortunately for Wayne, who has consistently protested his innocence, the powerful discourse that associates young BAME people as involved in criminal gangs was a label his defence team couldn’t shake off. Wayne’s family and supporters were given a glimmer of hope in December 2013 when his case was heard by the Court of Appeal – but this was dashed a month later after it ruled that Wayne’s sentence and convictions would be upheld.

Plans are now underway to take Wayne’s case to the European Court of Human Rights in a bid to see justice done. But these plans may now be put on hold after the recent Supreme Court ruling on the interpretation of joint enterprise.

Light at the end of the tunnel

The Supreme Court ruling marks an important step in addressing many possible miscarriages of justice, according to organisations like JENGbA (Joint Enterprise Not Guilty by Association) which is also supporting Wayne’s family and has campaigned for many years to reform joint enterprise.

JENGbA was launched in 2010 by families wanting to highlight the abuse of the Joint Enterprise doctrine. It supports over 600 prisoners (men women and children) and says 80% of them are from BAME communities.

It is now working with the Criminal Cases Review Commission to get unsafe joint enterprise convictions fast-tracked to the Court of Appeal. JENGbA is also in the process of setting up a legal unit to assess appeals under joint enterprise.

“It has taken the hard work of many people over many years to get to this stage but we were never in any doubt that reform of joint enterprise would come,” Gloria Morrison, coordinator at JENGbA, said.

She added: “JENGbA has achieved one of its central aims, but our job is far from over.

“We know that there is a large number of prisoners, many serving life sentences, who have been convicted under a law which the Supreme Court has now acknowledged was a ‘wrong turn’. This judgement will offer new hope to them, to their families and their friends. We will fight to overturn every wrongful conviction.”

Joint enterprise, gangs and racism

In recognition of the alarming numbers of BAME defendants who may have been wrongly convicted under joint enterprise, the Centre for Crime and Justice Studies (a charity that aims to advance public understanding of crime, criminal justice and social harm) published a ground-breaking report in January. The report entitled ‘Dangerous associations: joint enterprise, gangs and racism’ was published in in conjunction with Manchester Metropolitan University, the Black Training and Enterprise Group and JENGbA.

The report draws on a survey of nearly 250 serving prisoners convicted under joint enterprise and focuses on the complex process of criminalisation through which BAME people (mostly young black men) go. It shows how young BAME people are identified by police as members of gangs and then convicted under joint enterprise law. It also draws on criminal justice data from three major UK cities – London, Manchester and Nottingham.

The report shows that it is much easier to convict groups of people and establish foresight under joint enterprise law if it can be shown that they are part of a gang or know about gangs. Worryingly for BAME young people the label of gang member (if they hang around in groups or are knowledgeable about gangs) is all too often used by statutory agencies as a way of describing them.

Being part of a gang or knowledgeable about gangs has been a key element in establishing foresight in joint enterprise cases. Establishing a gang link makes it more likely that there will be a conviction under joint enterprise law along with a lengthy prison sentence.

BAME young people are often labelled as involved in gangs for reasons such as watching hip hop videos or listening to rap music despite no significant evidence of criminal history. Research findings in the report show that in key cities like London, Manchester and Nottingham there is a disproportionate number of recorded BAME gang members.

gang members by ethnicity.jpg

The ‘gang industry’ as it is sometimes called has grown significantly over the decades from its early days in the late 90s with the creation of Operation Trident (originally focused on gun crime within BAME communities in the UK). But according to the report, the continued focus on BAME groups by police and other statutory agencies (through stop and search and cell site data) is failing to respond to the changing nature of serious crime.

gang.jpg

Joint enterprise has been described by campaigners and legal experts who have been calling for its reform as a ‘dragnet’. According to witness statements taken by the Justice Committee inquiry in 2014, ‘It hoovers up young people from BAME communities who have peripheral, minor or even non-existent involvement in serious criminal acts, along with the principal perpetrators, and imposes harsh penalties on them’.

What next for joint enterprise

So what does the future hold for the many prisoners convicted under joint enterprise law? And will the Supreme Court ruling mean that statutory agencies will need to re-consider how they use collective punishments like joint enterprise?

And what will the repercussions of the Supreme Court ruling mean for BAME communities in the UK who are regularly targeted by collective punishments like joint enterprise?

Commenting on the old foresight test for joint enterprise, Will McMahon, Deputy Director at the Centre for Crime and Justice Studies, said: “Prosecutions under joint enterprise all too often seemed to involve a dangerous cocktail of innuendo, hearsay and racism,”

“If you have a black skin you are much more likely to be convicted under that law. A large number of people may have been given long sentences for offences they did not commit.”

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