Joint enterprise is an affront to justice – its revision can’t come soon enough
Back in 1846, two men, John Swindall and James Osborne, both drunk, decided to race their horse-drawn carts along a busy track on the border of Derbyshire and Staffordshire. Both carts were loaded with heavy pottery materials. Calls of protest from pedestrians using the road were met by abuse from both drivers. Their folly resulted in the death of an elderly walker, James Durose, who was struck by one of the carts.
Apart from the drivers, there were no witnesses to say which cart struck Durose, so both were charged with manslaughter. At their trial, each blamed the other, a move known to lawyers as a “cut-throat defence”.
The trial judge decided that, while only one cart had knocked Durose down, the drunken, reckless behaviour of both had caused the death and he jailed them both. A commonsense judgment, it could be said. In the years that followed, lawmakers certainly thought so: the principle of , or common purpose, was cemented into British law and indeed copied in other jurisdictions, including the US and Australia.
Wind the clock forward 161 years to Warrington, August, 2007. . He was attacked. Two days later, he died from a head injury sustained in the attack. The then leader of the opposition, . His comments, and the subsequent trial of five teenagers charged with murdering Newlove, attracted huge media attention. Two of the five were cleared by the jury; the other three, Adam Swellings, Stephen Sorton and Jordan Cunliffe, were found guilty. They were sentenced to life imprisonment. Swellings, who delivered the blow that killed Newlove, was ordered to serve a minimum of 17 years, Sorton and Cunliffe, 15 and 12 years respectively. But in 2010, the appeal court ruled it was safe.
The five youths were charged and tried under the same law coined a century and a half earlier: joint enterprise (JE). But there, the resemblance ends. The common sense that dictated the verdict in the horse cart case had gone out the judicial window in the Newlove trial. Part of Cunliffe’s defence, which the prosecution accepted, was that although he had been present at the crime scene, he had not taken part in the attack on the father of three. The crown also accepted medical evidence that Cunliffe – who suffered from acute keratoconus – was registered blind at the time. So he was convicted of a killing he had taken no physical part in, which he could not have seen. Where is the common sense in that?
In truth, particularly over the past decade or so, the Crown Prosecution Service, with the support of politicians and much of the media, has used JE to prosecute and convict in cases where the actual evidence of guilt has been absent. . In cases like that of Newlove, which, rightly, caused public anger, the lack of evidence has been glossed over. The young are easy targets, often demonised by press and politicians. A gathering of them is seldom a “group”, more often a “gang”. And unruly children misbehaving are “wild’ or “feral”.
But . The supreme court ruling , including Cunliffe. It is not before time. JE is a lazy lawyers’ charter that has been used to convict those on the very edge of a criminal offence of serious crimes, without regard to fundamental principles of law, namely, knowledge of and intention to commit the crime.
The five supreme court justices said the law had “taken a wrong turn” 30 years ago in a JE case. It has taken a long time, but the common sense displayed in the horse cart trial has re-emerged in the law of this land.