‘Joint enterprise reform: Back my bill to stop people getting life for murders they didn’t commit’

Fifteen-year-old Jordan Cunliffe was awaiting a double eye transplant at the time he was accused of complicity in a ‘‘joint enterprise’ murder. Jordan was nearly totally blind and unable to see the incident.

The Criminal Cases Review Commission said it was “highly unlikely” Jordan inflicted any injury that led to the victim’s death, whereas one boy involved admitted beginning the attack by striking the victim’s head.

Despite this, the prosecutor chose to charge Jordan and four others under joint enterprise, leading to a life sentence for a crime he did not commit. His joint enterprise sentence is a shocking miscarriage of justice.

We need to act on miscarriages of justice

Senior Labour figures (and former lawyers) like Keir Starmer and David Lammy are well aware of the issues, and as Labour outlines its mission on crime this week, joint enterprise reform should be a core pillar of those plans.

Jordan’s story is one among thousands of others supported by the campaign group Joint Enterprise Not Guilty by Association (JENGbA), who claim they have been wrongfully punished for the crime of another.

Some had participated to a lesser degree in the crimes they were prosecuted for, so under normal circumstances would not merit a life sentence. Some were merely in the wrong place at the wrong time. In the most shocking cases, some were not present at all and had no meaningful or measurable connection to the crime committed.

All this because of ‘joint enterprise’, a legal doctrine that turns the British justice system on its head. One that assumes guilt before innocence and rests on the premise that any interaction with the primary culprit or culprits could potentially constitute ‘assisting or encouraging’ the crime – leading to guilt by association.

My common-sense bill will enshrine in law that people must have made a ‘significant contribution’ to a crime if they are to be prosecuted under joint enterprise. This would bring the law back in line with its original intention – retaining the power to prosecute multiple people who play a clear role in a crime, while preventing the wrongful conviction of secondary defendants.

The ‘pre-crime’ approach and the racist criminalisation of culture

In 2022, ten Black youngsters stood trial in Manchester for conspiracy to murder or to cause grievous bodily harm for their response to the killing of their friend. The prosecution alleged that the boys in the dock wanted revenge, leading to a violent incident.

The justification for sentencing ten boys to the collective punishment of 131 years in prison for the conspiracy to cause harm, despite no fatalities? Grief-fuelled messages in a private chat on the app Telegram in the days after their friend was murdered (none of those named as targets in the chat were hurt, according to The Guardian), and connections to a drill music group.

In many cases, the prosecution call police officers as ‘experts’ to give their opinions on alleged ‘gang culture’. A concept that still evades legal definition, but one which carries with it racist stereotypes intended to sway a jury. Drill music videos and lyrics are also presented to often mostly-white juries as evidence of intent to cause violence.

This reflects a growing trend in the use of a ‘gang narrative’ to conjure racist fears and stereotypes in the absence of compelling evidence, in effect criminalising culture and leading to Black people being 16 times more likely to be prosecuted under joint enterprise than white people.

Mostly young Black boys are being imprisoned for longer than they have been alive, for crimes that they made no significant contribution to. It is a stain on our justice system and must be stopped. It is possible both to uphold justice for the victims of crime and to put an end to this injustice. My simple change to the law will do just that.

How did we get here?

Today I presented my Private Members Bill which proposes tightening up the law on joint enterprise. Delighted to be working with @JENGbA on this campaign. Next reading 2nd February, but I will give regular updates here & on my website https://t.co/8zzzW4angs pic.twitter.com/NI1WJWShHf

— Kim Johnson MP (@KimJohnsonMP) December 6, 2023

Joint enterprise was first introduced 300 years ago to prosecute duellers and their associates. It dropped out of use but has seen a recent revival, after a decision which mistakenly allowed alleged secondary parties to be convicted on the basis of mere foresight of the possibility of an offence by another – regardless of action or intent.

In February 2016, the case of R v Jogee resulted in a recognition by the UK Supreme Court that joint enterprise had been used wrongly for 30 years. It ruled that the principle of ‘foresight’ was unjust and responsible for many wrongful convictions.

In theory, this ruling raised the threshold from ‘foresight’ to ‘intent’, meaning that to find a secondary defendant guilty a jury must be sure that they intended that the crime be committed.

However, in reality little has changed. Very few appeals have been accepted, and – while no formal data is collected – evidence clearly shows that the practice of joint enterprise continues with little safeguard against misuse. This fills prisons with young people of no real risk to the public and labelled as murderers when they have not killed anyone – an expensive travesty of justice.

The case for change

Supporters of the legislation point to the use of joint enterprise in cases involving paedophile rings, white collar crime and even the case of the murder of Stephen Lawrence.

However, politicians from across the political spectrum have raised concerns. Sir Robert Neill, the Conservative chair of the justice select committee, has sponsored my bill, alongside several MPs from across the House.

The Lammy Review of 2017 advocated for reform of the joint enterprise laws, and while David Lammy served as Shadow Justice Secretary, he committed a Labour government to reforming the law.

While director of public prosecutions, Sir Keir Starmer recognised that the prosecution bar is set too low for an offence as serious as murder and revised prosecution guidelines, but said changing the law was “a matter for Parliament and the courts”.

This widely accepted ‘wrong turn’ in the law has been challenged as far as it can in the courts. With my bill, we finally have an opportunity to put things right in Parliament.

I’m urging the government not to oppose it at its second reading on February 2nd, to put an end to this major miscarriage of justice. Please write to your MP and ask them to back my bill.