June 2014

“Why write drama that doesn't matter?” Jimmy McGovern once asked. The Liverpudlian screenwriter certainly does not skirt tough issues. With drama documentaries on the Hillsborough football stadium disaster and Bloody Sunday, and gritty television series like 'The Street' and 'Cracker', he has focussed 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 peripherally involved.

His new drama 'Common', to be screened on BBC One next month (July 6), 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 stabs a customer. Johnjo was unaware that his friend even had a knife, but days later he 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' dates back 300 years to the age of duelling, when not only the combatants but their seconds and surgeons faced prosecution. Today it is used far more widely than is commonly realised, with gangs the prime target and public's demand for safer streets the driving force.

But 'joint enterprise' is also the cause of growing concern, not least within the legal profession, as draconian sentences are meted out not just to the actual killers but to those deemed to have helped or encouraged them in any way. As McGovern told the Radio Times: “You know that when the British public is outraged injustice is just around the corner.”

McGovern stumbled across the issue when a Liverpool woman wrote to tell him how her nephew had been imprisoned under 'joint enterprise'. He receives many letters about perceived injustices. Usually he writes back to say that he is too busy, but this letter had taken a month to arrive because the postcode was wrong so he telephoned.

“I got her voice and it was a different thing,” he recalled. 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 said. 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 house in Warrington, believing they had vandalised his wife's car. He was attacked, and died of a head injury two days later. His murder caused a national 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 'common enterprise' doctrine. One got seventeen years, another fifteen, and Cunliffe, who was 15 at the time of the murder, twelve, though he insisted he was some yards from Newlove when he was attacked.

While Mrs Newlove launched a campaign against binge drinking and was ultimately awarded a peerage, Cunliffe's mother, Janet, began campaigning for her son's exoneration. She accepts that he had been drinking and was no angel, but argues that he could not have seen what was happening as he suffered from an acute eye condition called keratoconus and was technically blind. The prosecution also argued that Cunliffe was 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 began researching 'joint enterprise'. He believes that Cunliffe is “totally innocent and should not be inside at all”, but 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 knuckledusters, and killed a man named Andrew Ayres. Mitchell was convicted of murder and sentenced to thirteen years on the grounds that her continued presence in the car park amounted to aiding or encouraging the fatal assault. “How she can be in prison is beyond me,” McGovern said.

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 4,500 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 of those who supported them in any way. They must demonstrate only that the secondary parties knew violence was possible. The doctrine acts, they say, as a powerful deterrent to gang activity.

“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 scum bags would go free,” the fictional detective declares in McGovern's drama. “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. “We need this law. Without this law people could get away with murder,” said Lorraine Fraser whose son, Tyrone Clarke, 16, was beaten then stabbed to death by a gang of 20 men in Leeds in 2004. Four men were jailed for murder though it was never established who wielded the knife.

Joint enterprise is how Stephen Lawrence's killers were eventually convicted, though the prosecution could not say which one actually stabbed the black teenager in 1993. It might usefully have been deployed against the mob that killed PC Keith Blakelock during the Tottenham riots of 1985 – as it is, his actual killers could not be identified and so went free.

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 does not care because those convicted are frequently unsympathetic characters from the fringes of society.

'Presumed Guilty', a BBC documentary to be broadcast the night after 'Common', highlights several cases including that of Joseph Appiah, a 15-year-old black boy who received 12 years for the stabbing of Nicholas Pearton outside a fried chicken shop after a gang fight in Sydenham. Appiah was in a park 120 yards away when Pearton was killed by a fellow member of his gang.

“This joint enterprise – it's not about innocent or guilty. It's about getting working-class scum off the streets,” the mother of one of JohnJo's co-defendants declares in 'Common'.

'Joint enterprise' is politically convenient, Melanie McFadyean, an author of the BIJ's report, suggests. “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 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.”

The definition of complicity is certainly elastic. In 2007 Armel Gnango, a 17-year-old drug dealer, was fired on by an enemy in a South London car park. He shot back. During the fight a bullet fired at Gnango killed a passer-by, Magda Pniewska, a 26-year-old Pole. Gnango was convicted of her murder under 'joint enterprise'.

Samson Odegbune, one of 17 people convicted for the murder of 15-year-old Sofyen Belamouadden during a gang fight in London's Victoria Station in 2010. He was chasing another boy outside the station when Belamouadden was stabbed. He received 18 years 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 be at the actual scene of the killing to be found guilty and sent to jail,” Detective Chief Inspector John McFarlane said after the verdicts.

Another problem with 'joint enterprise' is that mandatory life sentences for murder were introduced in 2003. The minimum for murders involving firearms is now 30 years, and for knives 25 years. That leaves judges with little scope for leniency when 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,” McGovern said.

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 Professor David Ormerod, the Law Commissioner. The Justice Select Committee demanded clear guidelines 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 Director of Public Prosecutions did produce guidelines but Damien Green, the Justice minister, 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 relatives' pressure group called Joint Enterprise: Not Guilty by Association (JENGbA), hopes McGovern's powerful drama might change Green's mind. “It's given JENGbA a voice,” she said. “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.”