Criminal law
In the waiting room for justice: update on the joint enterprise debate
Charlotte Henry reports on a recent parliamentary debate calling for an urgent review of the joint enterprise doctrine and for law reform. See also (2017) Winter CILExJ pp28–30.
About the author
Charlotte Henry is a campaigner for Joint Enterprise Not Guilty by Association (JENGbA) following the conviction of her brother, Alex Henry. She is employed as a CILEx trainee lawyer while completing an LLM in human rights at Queen Mary University of London.
We sat surrounded by magnificent architecture at the House of Commons, the beauty of which was totally lost on me, as we waited for the Backbench Business Committee debate on joint enterprise to commence.* It was 25 January 2018, and despite insistent notices to ‘keep quiet’, a murmur of anticipation swept through our group of JENGbA campaigners. JENGbA, comprised mostly of determined mothers and sisters, had campaigned tirelessly for law reform since it was founded in 2010, and this debate promised to be the first of many we hoped would come.
The debate was focused largely on the application of parasitic accessorial liability (PAL), a type of joint enterprise which arose as a result of the Privy Council decision in Chan Wing-Siu; Wong Kin-Shing Tse Wai-Ming (Appeal No 53 of 1983) v R (Hong Kong) [1984] UKPC 27; [1985] AC 168, and then took status as English law in R v Powell and another; R v English [1999] 1 AC 1. PAL was subsequently abolished in R v Jogee; Ruddock v R (Jamaica) [2016] UKSC 8 and [2016] UKPC 7 respectively, which found this form of criminal liability to have been based on an erroneous application of law.
However, despite the Supreme Court’s declaration that the law had taken a ‘wrong turn’ (paragraph 87), the error now corrected would have no automatic retrospective effect on the hundreds, if not thousands, of convictions throughout parasitic accessorial liability’s 30-year existence. Instead, those who request an appeal out of time would need to demonstrate that 'substantial injustice' would otherwise be done, if an appeal were not granted (paragraph 100). This ‘substantial- injustice’ test later evolved in the case of R v Johnson and others [2016] EWCA Crim 1613, and requires the applicant to prove that the change in the law categorically would have made a difference.
Comparatively, those whose appeals are not out of time, ie, those who were convicted within the 28 days immediately preceding Jogee, need only show that their conviction was unsafe. This safety test, laid out in the Criminal Appeal Act (CAA) 1968, allows the court to quash a conviction where the misapplication of law might reasonably have made a difference rather than would have made a difference.
As the hours rolled on, with impassioned speech after impassioned speech, we were without words upon hearing the depth of political support JENGbA had rallied. Joint enterprise is a ‘stain on British jurisprudence’ declared Stephen Pound MP, who had joined the cause having heard of the conviction of his constituent and my brother, Alex Henry, in March 2014. Alex’s case was referred to as of ‘immense concern’ by no less than four MPs, including Barry Sheerman, the founding member of the All Party Parliamentary Group on Miscarriages of Justice.
Alex was convicted of murder, and sentenced to 19 years’ imprisonment under the doctrine of joint enterprise. While out shopping on a Tuesday afternoon in August 2013, and sparked by no more than a look, a spontaneous altercation broke out between Alex's group and another group of men, instigated by the latter. The violence lasted under 47 seconds; however, in that short space of time Alex’s friend, Cameron Ferguson, placed his hand inside a JD sports bag and, holding a concealed knife, stabbed two people one of whom, tragically, died at the scene. Despite no evidence of Alex having known about the presence of a knife, nor any evidence denoting intentional encouragement of its use, Alex was swiftly charged with murder.
Alex's story mirrors that many of those who are supported by JENGbA: spontaneous moments of violence; young men; and inferences drawn from association. And the injustice felt by my family was equally reflected in the faces of my fellow campaigners as we sat tensely, listening to MPs describe such injustice as ‘burning so strongly and brightly that the smoke is almost choking us, and we cannot see the sense and sanity of the law for the obfuscation that has come from this ridiculous piece of law’ (Hansard, HC Debates col 456, 25 January 2018).
However, despite calls for reform the government declared that it would not be looking into the issue. This refusal, delivered by Lucy Frazer QC, the parliamentary under-secretary at the Ministry of Justice, did not detract from the feeling of success felt by JENGbA, whose members applauded as the House declared the motion had been agreed to. In particular, this means as follows:
That this House notes the Supreme Court judgment in the case of Jogee and Ruddock of February 2016 that the law on joint enterprise and parasitic accessory liability had been wrongly interpreted for more than 30 years; further notes that since that judgment, the number of cases brought under joint enterprise has remained unchanged; further notes that there have yet to be any successful appeals of cases from before February 2016; and calls on the government to review the use of joint enterprise and to bring forward legislative proposals to clarify the law on joint enterprise.
JENGbA will still press forward, and will continue to call upon parliament to amend the CCA to allow for those who have been convicted under a misapplication of the law - notwithstanding the date of conviction - to be afforded a successful appeal where the conviction is 'unsafe'. With regard to Alex’s case, we move forward to lodge an application with the European Court of Human Rights (ECtHR).
Following his refusal of leave to appeal, we applied, within 28 days, for the Court of Appeal to certify a question of law of general public importance and allow an appeal to the UK Supreme Court (UKSC). We knew that the odds were stacked against us since the UKSC does not have jurisdiction to hear cases which have not been afforded a full appeal at the Court of Appeal; furthermore, since the substantial injustice test is one which is applied when seeking permission to appeal, Alex was outside its jurisdiction. Within four days, we were notified that Alex's application had been refused.
On 25 January 2018, despite knowing the application was destined for failure, we decided to lodge an application directly with the UKSC to self-certify a question. The argument is not entirely without merit.
The certification could be read in a way to allow appeals to the UKSC in cases which were not afforded a full appeal in the lower court. Such an interpretation would give life to article 13 of the European Convention on Human Rights (right to effective remedy in a national court) by allowing arguable human rights violations, which resulted from the lower court's decision, to be heard nationally rather than treating the overburdened ECtHR as a quasi-domestic court. And regardless of merit, we knew that we had to be seen to have exhausted all national remedies before lodging an application with the ECtHR. The application currently sits with the registrar of the UKSC, and we await its undoubted swift rejection before we commence action against the UK on the European legal stage.
* HC Debates cols 445–477, 25 January 2018, available at: https://tinyurl.com/ya78m3nq
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