The ‘joint enterprise’ law is screwing over young Brits with violent friends

It was a summer evening in 2010 and Edward Conteh wanted to stay home playing PlayStation. But the 15-year-old’s friends had different plans; they convinced him to put down the controller and head to Home Park in Sydenham, South East London. A few hours later, Conteh was a wanted man – facing a murder charge, despite not wielding a weapon, striking any blows or taking an active part in events.

Conteh was charged and prosecuted using a little-known legal doctrine called joint enterprise. The 300-year-old law, which has developed through the courts rather than being enshrined in statute, allows a jury to convict people on the periphery of a crime on the same charge as those who committed it. The law allows for the conviction of gangsters, hit-men and getaway drivers, but lawyers worry that it also leads to people like Conteh being scooped up into convictions for crimes that they never intended to happen.

Conteh’s friends had been looking for a fight. Some of them belonged to the “SG” gang and wanted to settle a beef with a rival gang, the “Sydenham Boys”. There had been plenty of these run-ins before, usually involving some posturing and brief shows of bravado, but little else. That evening in 2010 was different. The two groups met in the park and a few knives were brandished before the Sydenham Boys ran off. But Nicholas Pearton, a member of the latter gang, showed up late. Caught alone, the 16-year-old was chased out of the park and stabbed in the back by one of the group, Dale Green, before he staggered into a takeaway shop and died.

Conteh didn’t see the stabbing take place. He hung behind when Pearton was being chased down the road, dawdling with a bike one of the boys had dropped. He didn’t have a knife. Minutes later, he was seen cycling slowly after his friends. Later, he explained that he had stayed behind because he didn’t want to fight.

“When Edward came home that day it was very late,” says Conteh’s mother, Memunatu. “There was panic on his face. I asked what happened and he said, ‘Mummy, they said my friends stabbed someone.'” She asked what he’d seen and he explained: “He didn’t know it had happened and he’d been in the park, but then they’d told him they’d stabbed someone.” The legal doctrine of joint enterprise meant that he could be arrested and tried for murder along with Green and the rest of his group.

On the day of the court judgment, Conteh told his mum not to worry. “I’ll be home tonight – this will all be over with,” he said. However, it was far from over – he was found guilty of manslaughter and sentenced to seven years. “When I heard they’d given him manslaughter I nearly collapsed, I couldn’t believe it,” says Memuatu. It was only after the trial she learnt about joint enterprise.

Joint enterprise was developed in the 18th century to discourage people from getting involved in duels. It meant that not only those who actually wielded a weapon could be arrested, but also anyone else who was seen to be encouraging or supporting them. While it’s an established element of criminal law, no one records how and when it is used. The Crown Prosecution Service (CPS) and Home Office record a wealth of data about crime, but there’s no check-box to record joint enterprise. Even an inquiry by the Justice Select Committee in 2011 was unable to produce any data on often how the doctrine is used in convictions.

The Bureau of Investigative Journalism, an independent research body, spent eight months interviewing experts, surveying lawyers and digging into crime statistics to find out more about the law. They collated figures from the CPS for homicides involving more than four defendants, deducing that these convictions would almost certainly have used joint enterprise.

The figures show that, since 2005, there have been 1,853 people prosecuted in homicide trials that almost certainly used joint enterprise. Those people had varying levels of role in the crimes – some played an active part, others, like Conteh, might have got caught up in a killing that they had no real part in.

The research also uncovered a growing chorus of concern about the use of joint enterprise among those in the legal profession. Professor David Ormerod is the Law Commissioner, meaning he and his team at the Law Commission are responsible for keeping the law of England and Wales under review, and recommend reforms where they see fit. He voiced his concerns about joint enterprise, explaining that he thought the law was unclear. “It’s possible, because of the complexity of the law, that it has been applied incorrectly”, he says.

The biggest concern for lawyers, according to the Bureau’s survey, is that joint enterprise in homicide trials means the prosecution doesn’t need to show that the defendant intended the victim to die, nor that they knew that the killer intended the person to die. The prosecution only needs to prove that the defendant could have foreseen that the killer had the potential to cause serious harm, or that the defendant’s presence at the scene encouraged the killer to act. “Is it fair that someone is convicted for murder if they have foreseen, as a possibility, that someone else might intentionally kill or cause serious harm?” asks Ormerod.

For Conteh the problem was that he knew his friends had knives, even if he didn’t have one himself – despite the fact a psychologist at the trial testified that the boy’s abnormally low IQ meant he was unusually compliant and unable to foresee consequences like others. It was also argued that, even though he stayed behind in the park, his presence at the scene could have given the stabber the encouragement he needed to chase and kill his victim.

Conteh was on trial for a range of charges, giving the jury a number of options for how exactly to convict him. He was eventually acquitted of murder, but because the jury decided that he had been at the park and could have foreseen serious harm, they were obliged to find him guilty of manslaughter using the doctrine. Conteh is an immigrant, born in Sierra Leone and with Belgian citizenship. As a foreign national prisoner, he runs the risk of being deported to Belgium once he has served his time in prison, despite the fact he no longer has any family or friends in the country.

If he’d been found guilty of murder, Conteh would have been facing a much longer prison sentence. Murder means a mandatory life sentence, with a minimum term of 30 years in prison if a gun is involved, even if you didn’t pull the trigger.

Information from the CPS shows that, in 2012 alone, there were 360 defendants charged with joint enterprise murder who faced a potential life sentence. Professor Graham Virgo of Cambridge University is concerned that “a defendant can be convicted for murder, with the mandatory life sentence, even though he or she did not cause death and did not have the intention to kill or to cause serious injury”.

That was the case for Laura Mitchell, a 22-year-old from Bradford. It was late on a Saturday night in January of 2007 that Mitchell, her boyfriend and some guys he knew were out drinking in a pub. Mitchell was worse for wear and, around closing time, the group piled out of the pub and into the nearest taxi. But it turned out the taxi was booked for another group and a fight broke out. Mitchell flew at some of those in the group and later admitted she had kicked and punched people, and that her actions had been “violent, abusive and aggressive”.

The skirmish subsided and Mitchell staggered off to try to find her shoes, which had somehow got lost in the pub car park. Some of the men in the group had other plans; they went to a friend’s house nearby, armed themselves with knuckle-dusters, a medieval mace and CS gas, and returned to find the group they had been fighting with. A second, much more serious brawl broke out, during which 50-year-old Andrew Ayres was beaten to death. One man, Carl Holmes, later pleaded guilty to murder.

A few days after the attack, Mitchell went to the local police station to give her witness testimony and found out she had been charged with murder. At the trial the prosecution used the joint enterprise doctrine and argued that Mitchell’s conduct in the first fight made her part of a continued enterprise that ended in Ayres’ tragic death. She was sentenced to 13 and a half years in prison.

In her police interview, Mitchell said, “When I was in the car park looking for my shoes, I wasn’t there encouraging anyone. I didn’t want a fight. I didn’t want to support a fight. I didn’t want to encourage a fight.” Mitchell attempted to appeal her conviction at the Court of Appeal in 2008, but it was upheld. Conflicting witness accounts in the original trial had led to doubts as to just how far away from the violence she had been. The appeal judge ruled that it was up to the jury to decide whether or not she had withdrawn from the scene or was still playing a part in the attack that killed Ayres.

Those convicted under the doctrine can often feel they have been sentenced unfairly. In fact, the campaign group Joint Enterprise Not Guilty By Association (JENGbA) has collected the cases of over 400 people convicted using joint enterprise who feel they were wrongly convicted.

As well as exploring some of these cases, researchers from the Bureau read and analysed over 840 published rulings from the Court of Appeal, from the years 2008, 2012 and 2013. Their findings show an increase in the rate of convictions involving an element of joint enterprise being appealed over those years. 11 percent of all the rulings in 2008 were of convictions involving joint enterprise. In 2013, that had increased to 22 percent. The majority of these joint enterprise appeals were for homicide charges.

Despite the increase in appeals, the verdicts were very rarely quashed. Only four out of the 40 joint enterprise homicide convictions analysed were overturned in the three years studied.

Even when the courts don’t convict, being caught up in a joint enterprise charge can have devastating effects. What worries solicitor Greg Stewart, who was acting for another defendant in Conteh’s trial, is that joint enterprise “covers such wide elements of behaviour and intent that it becomes a lottery if you are convicted or not”. Barrister Orlando Pownall QC agrees, noting that charging by the police and CPS could be tactical. “Sometimes people are scooped up [into a conviction] in the hope that they will turn on each other as witnesses, or at least so that the defence can’t call them,” he says.

Pownall has witnessed such a case recently. In February of this year he represented James Webb (whose name has been changed to protect his identity) at a trial at the Old Bailey, London. Webb had been charged with murder under the joint enterprise doctrine after finding himself swept up in a nightmare scenario.

The young man lived in London but had joined friends on a night out in a nearby town. They went clubbing and Webb was introduced to a couple of friends of a friend. The group hung out for a while, drank some more and then left the party. It was a summer night, and walking back to his hotel from the club at 3AM, Webb was chatting to some girls he’d met at the party. The group of guys he’d met that night were wandering ahead and had bumped into a group they’d had a falling out with earlier that evening. Unbeknownst to Webb, two of his newfound group of friends ran to their car, picked up a knife and stabbed a 24-year-old man to death.

Seeing a tussle break out, Webb left the girls and ran down the park path to the group. Witnesses suggest he originally tried to break up the fight before getting angry and shouting at one of the other group. The police were called and Webb handed over his contact details, thinking he’d have a role to play as a potential witness. He did not have legal representation for the first two police interviews he experienced. He was later arrested and charged with murder.

Webb was held on remand for four months, waiting for the case to come to trial. A self-employed plumber, his business struggled. While he was on bail pending charge he found out his girlfriend had become pregnant. Now, because the murder had involved a knife, he was facing a possible 20 years in prison.

The case came to court seven months after the events took place. The prosecution outlined their case against the four men involved, and, in an unusual move, the judge ruled that there was insufficient evidence for a reasonable jury, properly directed, to convict Webb. He was acquitted.

“There was no justification for charging him at all,” says Pownall. It was accepted on both sides that Webb met the killer for the first time that evening. He had not travelled to the town with the other three defendants, nor was he to leave the scene with them. Luckily for Webb, CCTV footage had shown he was not with the group when the first fight happened, and he’d been at a distance when the fatal fight broke out. If it hadn’t been for the CCTV footage it could have been a very different result,” says Pownall.

Of course, many have never heard of joint enterprise before they are charged. Brian Fitzpatrick, a homicide officer in the Metropolitan police, regularly visits high schools to tell kids about joint enterprise. “When I take the session into schools it gets an incredible reaction – people are knocked for six,” he says. “There are tears, arguments, debates. The message most people get is that they didn’t realise they had put themselves in jeopardy.”

Not one of the legal experts consulted in the Bureau’s research argued that the joint enterprise doctrine should be scrapped – all recognised it 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.

But even clarifying the law would do little for Conteh, Mitchell and the others serving prison sentences for crimes prosecuted using joint enterprise. Conteh’s mother is resolute in her opinion: “The person who did the act should get life in prison, and never get out of that place,” she says. “But, with joint enterprise, you can be a friend, and because your friend did something you have to suffer the consequences.”

Conteh’s own barrister, Francis FitzGibbon, agrees that the teenager’s conviction was unduly harsh. “I think Edward should have been acquitted of all homicide charges,” FitzGibbon says. “The jury were welcome to convict him 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.”

“I want to know what crime Edward did,” says his mother. “The sentence they gave him – I don’t think it’s the right sentence for my son. It’s not fair.”

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