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The Justice Trap: Joint Enterprise Part 2

Jon Robin’s second account of how the law of joint enterprise “exposes all that is wrong in our justice system”.

Jon Robin’s second account of how the law of joint enterprise “exposes all that is wrong in our justice system”.

On January 26th 2007 Andrew Ayres had gone for a drink with friends at the King’s Head pub in Bradford. At 3.17AM the following morning he was pronounced dead. About 90 minutes earlier one of his group called a cab to take them home.

Laura Mitchell, her boyfriend Michael Hall, and two other men tried to jump that cab. The driver kicked them out. A drunken brawl broke out between the two groups. Laura Mitchell, described as ‘off her head’, was at the heart of it. She punched a woman in the face three times and attacked two of the men.

But Mitchell wasn’t there when two of her group ran back to their nearby house. They returned with a mace, knuckle-duster and CS gas spray. Andrew Ayres and two of his friends who were brothers tried to get back into the pub but the door was locked. One brother was pulled to the ground and attacked and the other fled. Ayres fell to the ground and one of Laura Mitchell’s group, Carl Holmes, stamped on his head. He later pleaded guilty to murder. He was beaten to death by a pack of ‘absolute animals’, Bradford Crown Court heard.

Laura Mitchell

This is the second in a two-part article on joint enterprise. As explained last week, under the ancient common law doctrine of joint enterprise the prosecution can seek a murder conviction if it can prove that someone other than the person who dealt the fatal blow foresaw the ‘possibility’ that death might occur.

Joint enterprise exposes all that is wrong with our justice system

Felicity Gerry

Laura Mitchell wasn’t present during the fatal attack on Andrew Ayres. She had lost her shoes during the original fracas and was trying to find them in the pub carpark. The prosecution case was that they were all part of one continuous joint enterprise. Mitchell, a trainee midwife and single mother, was sentenced to life with a minimum term of thirteen and a half years.

A Wrong Turn

It is now three years on from a landmark ruling by the Supreme Court that the law on joint enterprise had ‘taken a wrong turn’ in 1984. On February 18th 2016, Lord Neuberger handed down judgment in the case of R v Jogee saying: ‘This court is always very cautious before departing from a previous decision. It is the responsibility of this court to put the law right.’

The ruling was widely hailed as a landmark. The Criminal Bar Association went so far as to issue a press release declaring the ruling ‘a masterpiece of modern legal reasoning’. It was anticipated that many, many appeals would follow in its wake.

The campaign group JENGbA (Joint Enterprise Not Guilty by Association) is in touch with hundreds of prisoners claiming to be wrongly convicted. According to statistics obtained by the Bureau of Investigative Journalism under a freedom of information request, 1,853 people were prosecuted for homicides involving four or more defendants between 2005 and 2013 which almost certainly relied upon joint enterprise – and 4,590 for homicides involving two or more people.

1,853 people were prosecuted between 2005 and 2013 which almost certainly relied upon joint enterprise

More than one in five of all Court of Appeal rulings in 2013 related to joint enterprise cases (22 per cent). That was, according to the legal academic Dr Matthew Dyson, a ‘terrifying statistic and evidence of the constant appeals against this doctrine’.

The Floodgates

In the wake of the Jogee ruling, tabloid commentators fretted that the ‘floodgates’ might be about to open and ‘hundreds of convicted killers’ were about to walk free.

They needn’t have worried. So far, there has been just one successful appeal. John Crilly who was sentenced to life for the murder of a pensioner and robbery with a minimum term of 19 years. I spoke to Crilly after his release. Even he was bemused. ‘There are a lot of people more innocent than me who should be getting out as well. It is bitter sweet,’ he told me.

The Court of Appeal quickly dashed the hopes of families. In October 2016 the court denied leave to appeal to 13 defendants in six separate cases (in R v Johnson & other). Where an appeal is brought outside of the 28-day limit, the defendant must seek exceptional leave to appeal to the Court of Appeal.

According to the ruling in Jogee, permission to appeal could be granted if ‘substantial injustice’ could be demonstrated but it would not do so ‘simply because the law applied has now been declared mistaken’.

That has proved an insurmountable barrier. Campaigners had hoped that Laura Mitchell’s appeal might be the one. Writing for the, Felicity Gerry QC, leading counsel for Jogee who is currently representing Alex Henry, pointed out that Mitchell ‘was not there at the killing, there was no clear plan to kill and the jury were not properly directed on a crucial aspect of law’.

One would have thought that allowing an appeal because the judge got the law wrong was a no brainer, Gerry argues. She reckons that the Supreme Court’s imposition of the substantial injustice test means that it has effectively ‘co-ordinated’ the Court of Appeal’s subsequent response to appeals. Interesting to note that the former Lord Chief Justice, Lord Thomas was ‘bumped up’ to sit on the Supreme Court for Jogee. Following the refusal of Laura Mitchell’s appeal, the Court of Appeal was asked to certify a question for the Supreme Court to clarify the test for substantial injustice. It refused saying they ‘raised no point of general public interest’.

As Felicity Gerry puts it: ‘Joint enterprise exposes all that is wrong with our justice system and we, as lawyers, are forced to take opportunities to assist campaigners rather than see our justice system function fairly.’

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