A scene from Jimmy McGovern's 'Common', BBC1 Sunday 9pm
Jimmy McGovern's new drama, 'Common', airing on BBC1 this weekend, tells the story of a teenager who gives some friends a lift: they kill someone, he finds himself charged with murder. McGovern wants to make people aware of the law of joint enterprise. “It's being used against innocent kids,” he says. “In the south of England it's being used against black boys and in the north against an awful lot of working class youth.”
For many people McGovern's drama will be the first introduction to a law which can seem too much like a fictional plot line. But for others the impact of the joint enterprise law is a daily reality.
In the visiting room at HMP Isis, a young adult prison within the walls of Bellmarsh Prison in South London, I meet Edward Conteh. He's aged 20, smartly dressed in an oat-coloured wool sweater and jeans. He turns down the offer of tea or coffee and asks instead for a carton of Ribena. His fingers fiddle anxiously with the carton while we talk. He's serving time for manslaughter. But Conteh, jailed at 17, took no part in the killing he was convicted for, never held a weapon nor even saw the violence take place.
“I didn’t do anything,” Conteh says, “I was just a kid really, it was my mates from school said come out with them so I went, I didn’t know what was going to happen.”
Conteh was convicted under the law of joint enterprise. Leading lawyers and Parliamentarians fear that it leads to miscarriages of justice, people, especially young people, being convicted of crimes that they never intended to happen.
“I hadn’t heard of joint enterprise at all before, even at the trial I didn’t believe that you could get put in prison for a crime if you didn’t do it,” Conteh says. When he arrived in prison he started asking around about the law. “A lot of people in here were done under joint enterprise,” he explains, glancing round the room, “it seems like a really corrupt system.”
Memunatu, holding a picture of her son Edward (Maeve McClenaghan)
Conteh was 16 years old when it happened. It was a summer’s day, his school mates were at his house playing Playstation for a few hours. Then they went along to the local park. On the way he says he heard smatterings of a story. Some of his friends, who were part of the ‘SG' gang, had had a run in with some lads from another local gang, the Sydenham Boys. Now they were on their way to the park, Conteh discovered, “to see what the boys were saying”.
When they arrived there was shouting and posturing. Some of the boys had brought knives and waved them about. Soon the Sydenham Boys ran off. Conteh had seen these kind of stand-offs before.
Nicholas Pearton, a friend of the Sydenham Boys, arrived in the park after the others had left. Dale Green, one of Conteh's companions, chased Pearton out of the park and down the road. Green caught up with Pearton and stabbed him in the back. The boy stumbled into a take-away shop bleeding. He was taken to hospital where he died.
At the time of the attack Conteh was back in the park. CCTV footage from the street shows him slowly cycling up the road to catch up with his retreating friends, minutes after the stabbing took place.
“The guy that did the stabbing, he ran off forward by himself, then some of the others followed, but I was back in the park,” says Conteh, leaning forward. “I’ve gone over it and over it in my head and thought what I could of done, but I didn’t see it happen, I wasn’t there so it’s not like I could have stopped it. Maybe I would have done it differently now, you know now I’m older, but I was just young then.”
I meet Conteh’s mother, Memunatu, in her flat in South London. Her two youngest children, a four-year-old girl and a two-year-old boy, are bouncing around the place. Memunatu was heavily pregnant with her youngest daughter during Edward’s trial. The boy was born while Edward was in prison.
“The plain clothes police came to my house and they said they’d come for Edward, they entered the house and went in Edward’s room and asked me some questions,” Memunatu says. They were looking for weapons but did not find any.
At the trial it was never argued that Conteh had a weapon or took any part in the violence. The CCTV footage showed he was not at the scene. A psychologist testified that Conteh's unusually low IQ made him particularly compliant and unable to foresee consequences.
Conteh said: “In the court they didn’t really talk about me.” The judge “barely mentioned my name”. As for the jury, “I think they just thought: he is part of that group and they all did it.”
The jury decided that Conteh had been at the park and could have foreseen serious harm might be meted out, and so they were obliged to find him guilty of manslaughter.
“When I heard they gave him manslaughter I nearly collapsed because I couldn’t believe it,” says Memanatu.
“When I got sentenced it was by videolink,” says Conteh. “Even then I thought I am going home, this was a big mistake, I never thought I’d get manslaughter. I just got taken from the video room back to my cell and that was it.”
His mother says that every time she went to visit him, “he was crying cos he’d never left his family before, crying can we try and take him out of there.”
Francis FitzGibbon QC is the barrister who defended Conteh during his trial. He says joint enterprise can “work like a drift net, catching little fish as well as big ones, and lumping them together.” (You can read his article about joint enterprise here.)
FitzGibbon says: “The jury were welcome to convict Edward of affray [a significantly less serious charge]. But it’s a real stretch to convict him of a homicide offence. Foreseeing that someone might come to some harm should not be enough to find you guilty of a homicide offence. The law doesn’t take into proper account the grey areas and can sweep up defendants who are vulnerable and compliant and lacking the mental capacity to act differently.”
Neither the Home Office nor the Crown Prosecution Service record data about convictions under joint enterprise. So, The Bureau of Investigative Journalism spent eight months interviewing experts, surveying lawyers and digging into crime statistics to find out more.
Figures were collated from the Crown Prosecution Service (CPS) for homicides involving multiple defendants, on the basis that these convictions would indicate the use of joint enterprise.
Jimmy McGovern on joint enterprise: 'It's being used against innocent kids' (BBC News)
Between 2005 and 2013, 4,590 people were prosecuted for homicides involving two or more defendants. Within that figure, 1,853 people were prosecuted for homicides that involved four or more defendants.
Some of those people played an active part, others, like Conteh, might have been caught up through association.
The criminal Law Commissioner, Professor David Ormerod, told us the case for reform was “overwhelming” as joint enterprise was “unclear” and posed “a risk of injustice”.
Lord Phillips, former Lord Chief Justice, said that joint enterprise needs reform as it was “capable of producing injustice, undoubtedly”.
Lawyers argue that there is no scientific way to prove or disprove encouragement or foresight that a crime may happen: it is often the CPS’s argument against the defendants. And murder convictions come with mandatory life sentences. Somebody who has neither killed nor intended to killl may nevertheless be convicted of murder and be sentenced to life imprisonment.
None of the legal experts we consulted argued that the joint enterprise doctrine should be scrapped: all recognised it is as a necessary part of the law which allows the genuinely guilty to be punished. Instead most advocated reforming the doctrine to ensure that those caught up in the system were not unduly punished.
Suggestions for ways to reform the law included writing the law into statute, or using case law to clarify some of the more nebulous issues in the doctrine’s use.
Law Commissioner Ormerod is one of those who suggested reforming the sentences for murder, creating a graded system to allow judges more discretion in sentencing those on the periphery of a crime.
But Justice Minister Damian Green told us: “Joint enterprise law has enabled some of the most serious offenders to be brought to justice. It ensures that if a crime is committed by two or more people, all those involved can potentially be charged and convicted of that offence.”
He went on: “Sentencing in individual cases is a matter for the courts. We have no plans to change the law in this area.”
But The Law Commission was among those who told us that the strict limitations on sentencing in murder cases gives judges little leigh-room when it comes to sentence lengths.
The Justice Select Committee held an inquiry into the law and reported in January 2012: “The law on joint enterprise is so confusing for juries and courts alike that legislation is needed to ensure justice for both victims and defendants and end the high number of cases reaching the Court of Appeal.”
The MPs called on the Director of Public Prosecutions to produce guidance for prosecutors on joint enterprise, particularly in cases of gang-related homicide, and to collate data on the number of people charged. Those guidelines were created in 2012, but the number of people prosecuted for homicide involving four or more people continued to rise. The CPS trawled their records but looked at joint enterprise use in only two years, which cannot possibly reveal whether the trend is rising. The Committee is to hold a follow-up inquiry to explore if the recommendations have had an effect.
Shadow Attorney General Emily Thornberry is critical of the government's inaction. She said: “It seems absurd that the Government has praised and accepted the Law Commission’s recommendations on joint enterprise and yet has done nothing to implement them. Instead ministers have filed the issue on a shelf marked 'too difficult to deal with'. This is very disappointing as it’s not an issue that’s going to go away.”
A CPS spokesperson said: “We know this is a complex area of law that divides opinion but there are a number of cases, including the murder of Stephen Lawrence, that would not have seen anyone convicted for very serious crimes if not for joint enterprise. The CPS does not make the law, it applies it as directed by Parliament and the courts.”
All that is little comfort to Conteh. The week before we meet he found out his application to appeal his conviction was turned down, a fact which came as a surprise to his lawyers and to him.
“When I heard my appeal was turned down I was really sad, I felt like I had no more hope, like it was all hopeless,” he says. “It’s hard, prison is a hard place, I just want to leave now, that’s all I think about: getting home.”
Even if his appeal had been allowed the chances of his conviction being overturned would have been slim. The Bureau analysed more than 800 Court of Appeal rulings from 2008, 2012 and 2013 and found that the number involving joint enterprise had doubled in those years, from 11 per cent of all published rulings in 2008, to 22 per cent in 2013.
Despite the frequency with which cases were appealed, convictions were very rarely overturned. Only four of the 38 joint enterprise homicide convictions appealed in those years were quashed.
Conteh has served the minimum term on his sentence — three and a half years — and is due for parole in July. But he faces a further punishment. In Britain, a non-EU adult who gets a custodial sentence of 12 months or more is automatically deported, but the Home Office may exercise discretion if the person was under 18 when convicted.
Conteh has Belgian citizenship, gained when his family sought asylum, after fleeing Sierra Leone.
His lawyers have told him that at the immigration hearing he will not be able to argue that he played no real role in the killing, all the judges will see is his conviction for manslaughter.
He says: “I don’t really remember much of Belgium, I was really young, I came here for secondary. I didn’t really have any friends there, there’s lots of racism you know,” he says.
“It doesn’t seem right for them to send me away for something I didn’t do,” he says.
His mother Memunatu worries about his future. “When he goes they’ll give the Belgian police everything and tell them that Edward is a criminal,” she says. “And his family is all here, he doesn’t have anyone there, that can make someone go crazy.”
Conteh gets one and half hours outside of his cell each day, for exercise and lunch. The rest of the time he spends sitting around thinking. “Sometimes I get feeling so stressed out like I don’t know what to do, like I can’t take it anymore, and there’s no where to go to make it better — that’s the worst,” he says.
The guards shout that visiting hours are over. Before I leave, out of the heavy prison doors and back into the sunshine, Conteh leans over, flicking the last of his shredded juice carton from his fingers. “It’s hard, you know, spending all this time thinking about things, how I’m in here even though I never did anything. This has turned my life upside down.”
Jimmy McGovern's drama 'Common' is on BBC1 at 9pm on Sunday 6 July.
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