The Justice Trap: Joint Enterprise

Jon Robins with another fascinating case of injustice – this time around a law that presumes guilt for bystanders

Alex Henry had a troubled past. He dropped out of school and through his teenage years came into contact with numerous agencies including the local CAMHS, the child and adolescent mental health service, family therapists and social workers. All four boys had convictions relating to knives.

Alex Henry’s antics drove his family spare. They couldn’t understand why he was so badly behaved. His mother completed a PhD in psychology researching the implications of bullying in an attempt to better understand her son’s alarming behaviour.

On August 6^th, 2013, Alex Henry and Janhelle Grant-Murray had been shopping with an old friend, Younis Tayyib and Cameron Ferguson. Grant-Murray and Tayyib were walking home when they were confronted by four older boys: the brothers Bourhane and Taqui Khezihi, and two other friends.

The 300-year-old doctrine was originally used to help stop aristocrats from duelling by making their surgeons and ‘seconds’ liable for murder.

What followed was a moment of stupidity that left one young person dead and ruined the lives of others. The facts are disputed.

On Henry’s account, he saw a friend in trouble. As he approached, he claimed to have picked up Grant-Murray’s dropped mobile, thrown it at one of the other group and attempted to punch another. That, he claimed, was the extent of his involvement. Bourhane claimed ‘the white boy’ (Henry) had ‘a shiny object’ in his hand and another told the police it was a knife but he was not so confident at trial.

Cameron Ferguson joined in the fray. He had a knife hidden in a bag and stabbed Taqui and Bourhane. Taqui’s injury proved fatal. Alex Henry claimed that it was only hours later when they regrouped in a park that they realised that Ferguson had ‘poked’ the brothers.

The case is shocking but, sadly, all too common. Last year, 76 people were stabbed to death in London and 17 people have been knifed to death this year.

From Duelling Law to Dragnet

This is the first of two articles on joint enterprise. The 300-year-old doctrine was originally used to help stop aristocrats from duelling by making their surgeons and ‘seconds’ liable for murder. Times have changed but the law has proved remarkably versatile.

Five years ago this week Janhelle Grant-Murray and Alex Henry were found guilty at the Old Bailey for the murder of Taqui Khezihi and wounding his brother Bourhane. To secure a conviction, the prosecution usually has to prove that the defendant intended to kill or else commit serious injury.

The incident took 47 seconds. ‘People with autism struggle to make rapid decisions under pressure’

In this case, a third man, Cameron Ferguson, stabbed both brothers. Midway through a six-week trial, Ferguson changed his plea to guilty admitting to the stabbing.

Grant-Murray and Henry were found guilty under the ancient common law doctrine of joint enterprise which allows a murder conviction to be imposed upon someone other than the person who wields the knife if that person foresaw the ‘possibility’ that death might occur.

Subjective Judgements

At no point was Alex Henry diagnosed with autism. Nor was this suggested at his trial.

However, after the trial someone wrote to his mother: had it occurred to her that her son might be autistic? Henry’s mother wrote to Professor Simon Baron-Cohen, director of the autism research centre at Cambridge University.

Professor Baron-Cohen met Henry twice at his category A prison. According to his autism spectrum quotient questionnaire, Henry scored ‘a very high’ 35 out of 50. Most people score around 17 and 32 is within the range for Asperger’s syndrome.

Alex Henry’s mother completed a PhD in psychology researching the implications of bullying in an attempt to better understand her son’s alarming behaviour.

I was in the Court of Appeal in June 2017 to hear the appeal in what was billed as a critical test case on the application of joint enterprise to the very young and very vulnerable.

When I attended Court of Appeal, Prof Cohen was giving evidence on behalf of Henry. He explained to the court that his clinic has diagnosed over 1,000 people with autism whose diagnosis, like Henry’s, had been overlooked into early adulthood.

The incident took 47 seconds. ‘People with autism struggle to make rapid decisions under pressure,’ the professor explained. Under joint enterprise, a jury can convict if it is proved that the defendant foresaw the ‘possibility’ that death might occur. As the country’s leading expert on autism explained to the bench that was exactly the kind of subjective judgment an autistic person would struggle with.

Ambushed by the Prosecution

The court had little time for Prof Baron-Cohen’s insight. ‘It seems to us that it can have had no effect on the issue of Henry’s thinking process at the time of the murder,’ they said. At worst, they conceded Henry might have suffered from ‘mild mental illness’ that was ‘immaterial to his culpability for murder’.

If expert witness evidence is dismissed so readily, this is very worrying for how the courts take into account disabilities such as autism.

Professor Simon Baron-Cohen

I subsequently interviewed Prof Baron-Cohen. He told me he had felt ‘ambushed’ by the prosecution. At one point, the Crown’s barrister suggested that Henry’s mother might have duped the doctor into making his diagnosis. Prof Cohen recalled that exchange as ‘bordering on the offensive’. In a debate last year in the House of Commons on joint enterprise, the Labour MP Ruth Cadbury called the judgment ‘shocking’. The Tory MP Andrew Mitchell agreed, adding: ‘I find the response of the court completely inexplicable.’

At one point, the Crown’s barrister suggested that Henry’s mother might have duped the doctor into making his diagnosis. Prof Cohen recalled that exchange as ‘bordering on the offensive’. In a debate last year in the House of Commons on joint enterprise, the Labour MP Ruth Cadbury called the judgment ‘shocking’. The Tory MP Andrew Mitchell agreed, adding: ‘I find the response of the court completely inexplicable.’

Why, I asked Prof Cohen, did he see Alex Henry in the first place? He answered that it was because of concerns about joint enterprise and ‘the potential for miscarriages of justice’.

‘The idea that any of us will be able to make a level-headed decision in such a short period of time, less than 50 seconds in this case, would be challenging but for somebody with autism that would be even harder,’ he told me.

‘If expert witness evidence is dismissed so readily, this is very worrying for how the courts take into account disabilities such as autism.’