Appeal court to hear first 'guilty by association' test cases

Hearings will decide whether people were wrongly convicted after supreme court found judges misinterpreted law for 30 years

The fate of hundreds of youths imprisoned under controversial “joint enterprise” laws could be decisively rewritten this month when the first test cases come before the criminal court of appeal.

The hopes of those who believe they are victims of a miscarriage of justice have been bolstered by an extraordinary supreme court victory in February, which declared that judges had been misinterpreting the law for 30 years.

Whether that ruling translates into releases of large numbers of inmates, however, may soon become clear as a succession of hearings starts on Tuesday. The panel of judges, led by the lord chief justice, Lord Thomas of Cwmgiedd, will examine individual cases affected by the so-called foresight principle, technically known as “parasitic accessorial liability”. Under this rule, someone could be convicted of a crime committed by an associate if it was judged they had foreseen the accomplice might commit it.

The court will focus on the facts of each individual case and test whether defendants – who were mostly young and often from black or minority ethnic backgrounds – should have been convicted on such a low evidential threshold.

The grassroots organisation Joint Enterprise Not Guilty By Association (Jengba) has led the campaign to overturn convictions, securing the support of the Commons’ justice select committee, the playwright Jimmy McGovern and senior lawyers such as Lord Hooper, a retired appeal court justice.

The cases of at least six men convicted under joint enterprise laws will go before the court of appeal on Tuesday. They include Tyler Burton and Nicholas Terrelonge, who were convicted of murdering Ashley Latty outside a birthday party in Dagenham in May 2014.

The judges will also hear arguments on behalf of Asher Johnson, his brother Lewis, Jerome Green and Reece Garwood, who were all convicted of murdering Thomas Cudjoe on a garage forecourt in Ilford in November 2012.

Many of those jailed under joint enterprise rules for secondary roles in crimes have been handed extremely long sentences because judges’ ability to exercise discretion in individual cases was curtailed by the imposition of mandatory life tariffs for murder under the 2003 Criminal Justice Act.

The law of joint enterprise, also known as “common purpose”, where someone acts in conjunction with the killer but does not strike the blow that causes death, dates back to at least the 16th century. It was later developed to deter duelling by making seconds and doctors liable for murder.

In 1984, Sir Robin Cooke, a senior judge, decided an appeal case from Hong Kong in the judicial committee of the privy council declaring that foresight alone of what an accomplice might do was sufficient to prove guilt.

His ruling, lowering the threshold of proof, set a precedent that was followed throughout British common law jurisdictions. Over the past decade the legal principle has frequently been used to thwart gang violence.

In February, however, five supreme court justices ruled that courts had misinterpreted the foresight rule. In a damning assessment, Lord Neuberger, president of the supreme court, said that the line of legal reasoning introduced in 1984 had been in “error”. Foresight of what someone else might do is merely part of the evidence. “It is for the jury to decide on the whole evidence,” Neuberger added, “whether [a secondary party] had the necessary intent.”

That ruling, on the case of Ameen Jogee, did not result in mass releases but concluded that disputed cases would have to go back before the court of appeal to have the specific facts of the each conviction re-examined. Jogee’s conviction was quashed and he will face a retrial.

Jengba estimates there may be as many as 700 individuals whose cases need to be reviewed under the revised foresight rule. Some cases had already come back to the court of appeal and been dismissed under the old rule, some are being reconsidered by the Criminal Cases Review Commission (CCRC).

The CCRC has received 35 new applications for miscarriage of justice since the Jogee decision, is considering the decision’s impact on 70 other applications and has reopened 20 previously closed cases. The Crown Prosecution Service has issued “interim guidance” on joint enterprise cases to all prosecutors and plans to revise it following the court of appeal hearings next week.

The supreme court judgment has already had an impact. Two defendants charged with murder have been formally acquitted, mid-trial, at the Old Bailey, and an eight-handed murder trial in Bristol has been postponed for the prosecution to reconsider its case.

One part of the supreme court ruling frustrated campaigners. The judgment declared that convictions can only be set aside by seeking exceptional leave to appeal to the court of appeal out of time but that to do so requires “substantial injustice” to be demonstrated not “simply because the law applied has now been declared to have been mistaken”.

Simon Natas, a joint enterprise expert at the law firm ITN Solicitors, advises Jengba. Under the foresight rule, he said, people were convicted who “did not intend anyone to be seriously injured let alone killed, yet they are still [deemed to be] a murderer”.

He added: “It set a very low bar. It creates real difficulties for defendants. It was much too easy to get convictions and for prosecutions to be used as a dragnet. Groups of young people were labelled as gangs...

“That means that the dragnet policy – intelligence-led prosecutions of gangs – will end and prosecution resources will be concentrated on key perpertrators. Joint enterprise was targeting black and minority ethnic young men.”

Gloria Morrison, one of the organisers of Jengba, became involved after her son’s friend, Kenneth Alexander, was convicted of murder for a disputed role in a fight. She visits prisons to talk to those convicted under joint enterprise.

“Many of the young people don’t see the legitimacy of being in prison,” she said. “People don’t understand joint enterprise because it’s so awful. They don’t want to believe that in the UK we send children to prison for life even though they are not guilty.

“People just see the headlines of ‘Feral Youths’. We are giving police and prosecutors sledgehammers [to tackle gangs]. Juries don’t know about mandatory life sentences. The average sentence for murder in 2006 was 15/16 years. Now it’s 24 years.”

After six years lawyers can destroy files, Morrison said, meaning that vital evidence may have been lost. “Not everyone is going to get a golden key [to their freedom],” she added. “I’m very frightened about what the next stage will be. Everyone’s hopes are up. We will have to wait and see what the court of appeal does.

Sophie Walker, director of the Centre for Criminal Appeals, a nonprofit law firm taking on joint enterprise appeals cases, said: “After tireless campaigning by families, a few prisoners whose lives have been ruined by this ill-applied doctrine will finally be getting a chance at justice in front of the court of appeal.

“We remain concerned that legal aid cuts and chronic underfunding of the Criminal Cases Review Commission – whose role it is to refer unsafe joint enterprise convictions to the court of appeal – will hinder this change in law from translating into real progress.”

Cases

Michael Hall and Laura Mitchell

Michael Hall, then 22, an electrician, had been with his girlfriend Laura Mitchell, also 22, outside a Bradford pub in January 2007 when a fight broke out over who had booked a taxi. During the initial scuffle, Hall said, he pulled the eventual victim, Andrew Ayres, 50, off Mitchell. She was later seen wandering around the car park; she said she was simply trying to find shoes, which had been lost.

Both Hall and Mitchell, who has a young son, insisted they were unaware that two of their co-defendants had allegedly gone to a nearby house, armed themselves with CS spray, knuckledusters and ball and chain mace and returned for a more serious fight. One of the assailants was seen stamping on Ayres’ head. All four – Hall, Mitchell and the two other men – were sentenced to a minimum of 13 and a half years in prison for murder. Hall’s case goes before the court of appeal this month. Jengba says that neither Hall nor Mitchell were aware of, or witnessed, Ayres being kicked to death by the man who did plead guilty to the murder.

Andrew Feather
One of the first joint enterprise cases to go before the court of appeal will involve new evidence as well as claims that the joint enterprise law was misapplied. Andrew Feather, 26, was convicted for being the get-away driver in the murder of a Bradford man, Barry Selby, who died in October 2013 after intruders smashed their way into his home, shot him in the leg and poured acid over his body. Feather was never alleged to be in the house at the time of the attack. He was convicted of murder and given a 26-year sentence. His lawyer, Simon Pook of Robert Lazar Solicitors, will help present fresh material challenging the timings on CCTV recordings relied on by the police.

“In one of the CCTV images used in the original trial there’s a van from a poultry firm which we managed to trace,” Pook explained. “We looked at its tachograph – which relies on GPS satellite timings – to show that the police calibration of the CCTV evidence was out by between six or 12 minutes.

“That shows that Andrew’s car was elsewhere. The prosecution say he was on the estate [at the time of the killing] but we are satisfied we can place significant doubt [on that claim]. We say Andrew didn’t take any part in this. He wasn’t there. We can place him in another part of Bradford [at that time].”

Feather’s mother, Michelle, visited him in prison earlier this month. “He was fairly confident of what the outcome will be. He has always protested his innocence. He knew a couple of the others [who were involved] but he did not go around with them. He had his girlfriend in the car. The prosecution said they didn’t know where he was [that evening] but still said he was part of a joint enterprise.”

Asher and Lewis Johnson
Two brothers, Asher and Lewis Johnson, were convicted of murder and each sentenced to serve 16 and a half years minimum in prison after a fight on a garage forecourt in Ilford, Essex. Both brothers, then aged 24 and 21 , had withdrawn from the scene, according to Jengba, to distance themselves from any further trouble as more people arrived. The victim, Thomas Cudjoe, was stabbed to death as he was trapped in the driving seat of his car. CCTV evidence recorded Asher and Lewis moving away from the scene before the knife was produced. Their case is due to be heard by the court of appeal on 21 June.

The joint enterprise law

There are three categories of joint enterprise crimes. Not all revolve around the question of foresight. They are:
1) Where all the accused are joint principals, participating, for example, in the violence of a street robbery.
2) Where an accessory assists or encourages someone else to commit a crime, for example acting as a look-out for a burglary or providing someone with a weapon for a stabbing.
3) Where at least two people cooperate in a crime but then the principal commits a further offence. If the first defendant is deemed to have had foresight of the second crime then under the old rules he or she can be found guilty of both offences. This is known as “parasitic accessory liability”. It is the category of joint enterprise which, the supreme court said, has been repeatedly misinterpreted and over-extended to the point where the threshold for proving guilty has been lowered too far.

• Law
• UK supreme court
• Court of appeal
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