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Guilt by association, the Supreme Court will rule

This Thursday the Supreme Court will rule on controversial joint enterprise laws, which allow people to be imprisoned for crimes they did not commit.

Flickr/Diamond Geezer, CC BY-NC-ND 2.0

Campaigners at Joint Enterprise Not Guilty by Association (JENGbA) are now eagerly awaiting the outcome of a case that was heard at the Supreme Court in October 2015. The UK Supreme Court will deliver an important judgement on joint enterprise this Thursday 18 February 2016. 

Over £10,000 was raised through CrowdJustice funding in less than a month in the hope that the Supreme Court would grant permission to intervene. Permission was granted and not just to JENGbA but also for Just for Kids Law. There was one single question that both were asked to answer and that was ‘Does joint enterprise over criminalise secondary parties?’ As interveners neither JENGbA nor Just for Kids Law used real case studies as examples. The interveners were not there to support the single case of Ameen Jogee but to highlight where the law is going wrong and why.

It is a common acknowledgement to those who follow the JENGbA campaign that Ameen Jogee did not physically murder the victim, and that his conviction came about by using the doctrine of Joint Enterprise yet like his co-defendant he was sentenced to life behind bars and must serve at least 23 years before he is eligible for parole.

Only those with direct access to the case of Ameen Jogee can explain how or why he may have been convicted of murder whilst not being the perpetrator. Various reports claim Jogee encouraged a friend to stab the victim. The case is, however, much more complicated, and this is perhaps why many people are still at odds with joint enterprise and some of the cases they have read about.

Much of the public are completely unaware of how low the burden of proof lies in a joint enterprise case, believing it to be the same standard as an ordinary murder trial with a single accused.

What is Joint Enterprise?

In the simplest of terms joint enterprise is when two or more people are criminally liable for a single crime. Most of us are familiar with the bank robber scenario, three men plan a robbery, two go inside the bank and the third is the getaway driver. If all are apprehended after successfully robbing the bank this is tied as a joint enterprise; each played a part; each had a common plan, each as guilty as the other. However, we must ask what if one of them goes beyond the scope of that plan (the plan to rob), and commits a second crime? For instance he punches the police officer who is trying to arrest him and the officer then dies of his injuries, are the other two guilty of murder? The felony murder rule would have said that they are, but the felony murder rule was abolished in 1957 and done so on the basis that it was unfair. 

It’s abolition as a piece of legislation can be said to have left the door open for the use of the common law version which is now called joint enterprise. Joint enterprise has now gone beyond the felony murder rule. There doesn’t need to be a plan anymore, it has stretched its limits to include spontaneous actions committed by one person that can occur in a matter of seconds. You may think there is nothing unusual about phoning a friend, but did you know that prosecutors can and will associate you with the perpetrator of a crime using mobile phone contact? This means you don’t even need to have been at the scene when it happened and terrifyingly the prosecution doesn’t have to prove what was said during that mobile phone contact or if it was even you that answered the phone. 

A person can now be deemed 'criminally liable' by being associated with a crime even if involvement was only peripheral. In other words they don't have to have shown intent or have delivered the ‘killer blow’. In the case of murder for example Jordan Cunliffe was not involved in the assault of Garry Newlove, he did not witness it as he was blind, so the question must be asked how could he have known what was happening let alone encourage what he could not see? Yet the jury still found him guilty of murder and this could only happen by using joint enterprise and the notion of ‘possible foresight’ that the crime may occur. Children are competent but yet extremely vulnerable at the same time. They can be immature, cognitively underdeveloped and in turn unable to 'predict events' and 'foresee consequences'.

Jordan Cunliffe has one thing in common with the others listed on the JENGbA website. That common thread is that none of these people can be said to have realistically been found guilty ‘beyond all reasonable doubt’ but rather on the basis of a possibility.

This is one area that our most senior judges are now tackling in the recent case at the Supreme Court. Those who have viewed the hearing will have heard the strangest of arguments: foresight, possibilities, and tacit agreements, to list just some of the legal jargon. If this is what is put before a jury then it can be argued that most defendants will fail to understand the meaning of the charge let alone understand how to defend themselves adequately. 

What if you do not know what a tacit agreement is, how do you instruct your legal team correctly? Imagine if you are just a child and you have been charged with a murder that even the police know you didn’t commit. Where the perpetrator admits guilt or where all the evidence points to one person one wonders why it is that others must still go on trial. Jordan Cunliffe thought the trial process was about finding out the truth and giving that truth to the victim’s family.

Finding the truth cannot be the case if even children are expected to navigate themselves through what can only be deemed as a minefield of legal technicalities. And one that only benefits the prosecution. If there was a legal loophole that allowed a murderer to walk free it would surely be closed at the first opportunity. Yet a loophole that is knowingly used to convict men, women and children for murder, knowing they did not murder anyone, has been left to run roughshod and unchecked through our courtrooms for decades.

Hundreds of people are serving time in prisons for crimes they did not commit. Many of them are serving long sentences, of 15 years or more, simply for being in the wrong place at the wrong time. They are our sons, daughters and friends and they are suffering the consequences of a grave injustice.


The views and opinions expressed in the article are those of the authors and do not necessarily reflect the views of any organisation.

About the authors

Sean Creaney is Lecturer in Childhood Studies at the Centre for Education and Applied Social Sciences at Stockport College, where he teaches youth justice theory, law, policy and practice. Prior to this, Sean worked at a North West Youth Offending Service.

Janet Cunliffe is a JENGbA campaigner.

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