Jimmy McGovern once asked: “Why write drama that doesn’t matter?” The Liverpudlian screenwriter certainly never skirts tough issues. With drama documentaries on the Hillsborough football stadium disaster and Bloody Sunday, and gritty television series such as The Street and Cracker, he has focused repeatedly on injustice, crime and deprivation. Now the man once dubbed “a Charles Dickens for our time” is turning his attention to “joint enterprise” – an ancient legal doctrine under which inner-city youths are receiving mandatory life sentences for murders in which they did not pull the trigger or wield the knife and were only indirectly involved.
His new drama, Common, to be screened on BBC1 on Sunday, tells the story of Johnjo O’Shea, an unsuspecting 17-year-old who drives three older mates to a pizza parlour. As he waits outside, one of the three in the pizza place stabs a customer. Johnjo is unaware that his friend even has a knife, but days later Johnjo himself is charged with murder under joint enterprise. The story is fictitious, but McGovern expects parents across the country to claim he based it on their sons’ cases.
The doctrine of joint enterprise or common purpose (see over) dates back 300 years to the age of duelling, when not only the combatants but also the seconds and surgeons faced prosecution. Today it’s used far more widely than is realised, with gangs the target and the public’s demand for safer streets the driving force.
But joint enterprise is also a cause for growing concern, not least within the legal profession, as life sentences are meted out not just to the actual killers but also to those deemed to have helped or encouraged them in any way. As McGovern tells RT, “You know that when the British public is outraged, injustice is just around the corner.”
McGovern, 64, stumbled across the issue when a Liverpool woman wrote to tell him about her nephew. He receives many letters about perceived injustices and usually writes back to say that he’s too busy. But this letter had taken a month to arrive because it carried the wrong postcode, so he telephoned her.
“I got her voice and it was a different thing,” he recalls. She invited him to her house. There he met three or four women with stories about the alleged injustices of joint enterprise suffered by close relatives. One “really fired me... it had all the hallmarks,” he says. It was the story of Jordan Cunliffe, one of three teenagers convicted of murdering Garry Newlove in 2007.
One August night Newlove, a 47-year-old sales manager, confronted some drunken youths outside his home in Warrington Cheshire, believing they had vandalised his wife’s car. He was attacked, and died of a head injury two days later. His murder caused an outcry. His widow, Helen, demanded government action to protect communities besieged by feral gangs. David Cameron, then leader of the Opposition, cited it as evidence of “broken Britain”. The tabloids had a field day, with the Daily Mail calling Newlove “another martyr to Britain’s increasingly violent gang culture, populated by youths, high on drink and drugs, and hell-bent on destruction”.
Five youths were arrested and tried in near-record time. The jury was told that Newlove died from a single blow, but three were found guilty under the joint enterprise doctrine. One got 17 years, another 15 years, and Cunliffe, who was aged 15 at the time of the murder, 12 years, despite insisting he was some yards away from Newlove when he was attacked.
While Mrs Newlove launched a campaign against binge-drinking and was later awarded a peerage, Cunliffe’s mother, Janet, began campaigning for her son’s exoneration. She accepts he’d been drinking and was no angel, but argues he could not have seen what was happening as he suffered from an acute eye condition called keratoconus and was technically blind. The prosecution had also argued that he had been involved in a similar fracas in Warrington the previous week, and therefore knew his friends were capable of violence – another requirement for joint enterprise. But Mrs Cunliffe insists her son was in Wigan that day.
McGovern believes that Cunliffe is “totally innocent and should not be inside at all”. The case of Laura Mitchell also shocked him.
Mitchell, 22, her boyfriend and three other men got into a fight over a taxi with another group outside a Bradford pub one night in January 2007. Afterwards she stayed in the car park to search for her shoes. Her co-defendants went away, returned with a mace and some knuckledusters, and killed a man named Andrew Ayres. Mitchell was convicted of his murder and sentenced to 13 years on the grounds that her presence in the car park amounted to aiding or encouraging the fatal assault. “How she can be in prison is beyond me,” says McGovern.
Prosecutions using joint enterprise have become surprisingly common. There are no official statistics, but a recent study by London’s Bureau of Investigative Journalism (BIJ) revealed that it has been used to prosecute between 1,800 and 4,590 people for homicide over the past eight years.
For police, prosecutors and politicians under pressure to crack down on gangs, joint enterprise is a boon. They can use it to win convictions for murder or assault, not just of the actual perpetrators but also of those who supported them in any way. They need only prove that the secondary parties foresaw that someone might be killed or seriously injured during a criminal action. They say the doctrine acts as a powerful deterrent to gangs.
“In the old days we worked hard to establish who it was who used the knife. He would be done for murder and the other scumbags would go free,” the fictional DI Hastings declares in McGovern’s drama Common. “Well, now it’s all changed. We don’t have to prove who used the knife any more. Because you all get done for murder if you were there egging him on, backing him up, helping in any way. A phone call, a knowing look even, you get done for murder. It’s called ‘joint enterprise’, you know, and I love it.”
So, understandably, do victims’ relatives. Baroness Newlove refused to comment, but in 2010 – before she became Victims’ Commissioner – she expressed strong support for joint enterprise, saying: “Would you stand there watching somebody else kicking and punching? Would you actually think that was right to watch, even if you didn’t do the act? They were all as guilty as the person doing the act.”
Joint enterprise is how Stephen Lawrence’s killers were eventually convicted, though the prosecution couldn’t say which man actually stabbed the teenager in 1993. It might usefully have been deployed against the mob that killed PC Keith Blakelock in north London during the Broadwater Farm riots of 1985 – as it is, his actual killers couldn’t be identified.
But critics say the pendulum has swung too far. They contend that youths are receiving draconian sentences for crimes for which they bore little responsibility, and that the public doesn’t care because those convicted are frequently unsympathetic characters from the fringes of society.
Guilty by Association, a BBC1 documentary to be broadcast on Monday, highlights several real cases including that of Joseph A, a 15-year-old boy sentenced to 12 years for the stabbing of Nicholas Pearton outside a fried-chicken shop after a gang fight in a park in south-east London, in 2010. Joseph A was 120 yards away when Pearton was killed by a member of his gang.
“This joint enterprise – it’s not about innocent or guilty. It’s about getting working-class scum off the streets,” says one of the boys’ mothers in Common.
Joint enterprise is politically convenient, suggests Melanie McFadyean, an author of the BIJ report. “Gang violence and gun and knife crime are real problems, which result in tragedy and inspire fear in the public. Those responsible for law and order have to do something. Joint enterprise provides a rough, ready and powerful solution.”
The problem, however, is that it “risks criminalising people who, by any ordinary reckoning of common sense, aren’t responsible for the specific acts of violence for which they end up convicted – or, at least, bear much less responsibility than those directly involved in the offences,” she says.
The definition of complicity is certainly elastic. In 2007 Armel Gnango, a 17-year-old drug dealer, was fired on in a south London car park. He shot back. During the fight a bullet fired at Gnango by the other gunman killed a passer-by, Magda Pniewska, a 26-year-old Pole. Gnango was convicted of her murder, under joint enterprise. The firer of the fatal bullet wasn’t caught.
Samson Odegbune, 16, was one of 17 people convicted of killing 15-year-old Sofyen Belamouadden in London’s Victoria Station in 2010. He was chasing another boy outside at the time of the stabbing. Samson Odegbune got 18 years (reduced to 16 on appeal) because he had an ornamental Samurai sword, was clearly spoiling for a fight and led his gang’s original charge. “The law on joint enterprise is clear and unforgiving – you do not need to deliver the fatal blow or even be at the actual scene of the killing to be found guilty and sent to jail,” Detective Chief Inspector John McFarlane said after the final verdict.
Another problem with joint enterprise is that mandatory life sentences for murder were introduced in 2003. The starting point for murders involving firearms is now 30 years, and for knives 25 years. That leaves judges with little scope for leniency where those convicted played relatively minor roles. “However tangential your involvement, if you’re involved in murder you do life and that can’t be right,” says McGovern.
Another anomaly is that a 17-year-old who carries out a murder may get a lighter sentence than an 18-year-old who is a secondary party. Sentences for murder involving firearms start at 12 years for under-18s.
Of 43 lawyers who responded to a BIJ survey, 37 expressed concern that joint enterprise could cause injustices. So have two former Lord Chief Justices, Lord Phillips and Lord Judge, and also the Law Commissioner for Criminal Law and Evidence, Professor David Ormerod. In 2012 the Justice Select Committee demanded clear guide-lines on the level of involvement required for a murder charge, saying the law is so complicated that juries “may find it impossible to understand how to reach the right verdict”. The committee is now re-opening its inquiry.
The Director of Public Prosecutions did produce guidelines, but Damian Green, Minister for Policing, Criminal Justice and Victims, has rejected calls for reform, arguing that “joint enterprise law has enabled some of the most serious offenders to be brought to justice”.
Mrs Cunliffe, who co-founded a pressure group called Joint Enterprise: Not Guilty by Association (JENGbA), hopes McGovern’s powerful drama will change Green’s mind. “It’s given JENGbA a voice,” she says. “I hope it will give us the public support we need. People will realise it’s based on reality and they’ll be shocked. They won’t believe it.”
Common starts tonight at 9:00pm on BBC1.
Guilty by Association is on Monday at 10:35pm on BBC1.