Joint Enterprise: floodgates slammed shut

Last year, families and pressure groups celebrated as the Supreme Court declared that the doctrine of Joint Enterprise had been incorrectly applied in Courts across England and Wales since 1985.

Criminal law generally only holds offenders liable for their own actions. However, under the doctrine of Joint Enterprise, a person may be found guilty for another person’s crime. Supporters of the controversial law argue that it is a useful tool in prosecuting gangs where a group has acted together with the primary offender for a common purpose.

In its judgement following the appeal of R v Jogee [2016], the Supreme Court removed the crucial ‘foresight’ element of the test to decide whether individuals committed acts together in a ‘joint enterprise’. Following a landmark decision earlier this year, defendants must now intend to ‘assist and encourage’ the primary offender, not simply foresee that he or she might commit the offence.

We spoke to Charlotte Henry, whose brother Alex Henry was convicted of joint enterprise murder in 2014. She told us that her hopes, and that of the organisation she is part of, JENGBA (Joint Enterprise – Not Guilty By Association) were dashed after they realised that R v Jogee [2016] has also lowered the ‘actus reus’ or guilty act element of the test.

Previously it was held that ‘encouragement and assistance’ could amount to presence at the scene as along as it did actually ‘encourage and materially assist’. The Court has now held that presence need not have had any positive effect on the principal’s conduct. This means that a person may be convicted of an offence based on mere presence alone.

Given this heightened culpability, it is unsurprising that every appeal which has followed the R v Jogee [2016] decision has been refused. A panel of appeal Court judges examined the cases of 13 men affected by the principle and found all convictions to be safe.

Charlotte and her family are anxiously waiting for Alex’s appeal hearing on 14 June 2017, knowing that this is his last realistic chance of freedom.

Alex Henry – convicted of joint enterprise murder in 2014

In August 2013, then 19-year-old Alex was out shopping in Ealing Broadway with some friends. Among the group were Alex’s old friends Janell Grant-Murray and Younis Tayyib, and Cameron Ferguson, who Alex had known for just six months.

A fight broke out with a group of older men, including brothers Bourhane and Taqui Khezihi, which the Court in the original trial heard was started by the men circling Janell. During the eventual melee, Bourhane was stabbed in the back by Cameron, who then turned and stabbed Taqui with a knife which he had, up until that point, kept concealed. During the altercation, Alex’s only actions were to throw a phone at Taqui and a punch at Bourhane who was charging towards Alex and Janell at the time.

Although it was not immediately obvious from CCTV that anyone was seriously injured, Tacqui later collapsed and sadly died in the ambulance on the way to the hospital from internal bleeding. Following his death, Alex, Janell and Cameron were charged and convicted of Taqui’s murder and of wounding with intent (GBH) for the stabbing of Bourhane. Cameron pleaded guilty and received a minimum sentence of 22 years. Alex denied the charges, with his legal team arguing he had no knowledge of the fact Cameron had a knife in his possession, but was convicted by a majority verdict and sentenced to a minimum of 19 years in prison – just three years less that the man who wielded the knife and stabbed the victim.

Charlotte and her family are hoping that Alex’s appeal will be successful as it was not a planned attack as in earlier rejected appeals. An added element of Alex’s defence is that he has subsequently been diagnosed with Asperger’s Syndrome and medical experts have argued he could not have understood the intentions of Cameron or have foreseen that any violence would break out.

Life in Prison

Alex Henry has been in a maximum security prison since 2014, where he faces staying until he is 40, should his conviction not be overturned. Charlotte visits him every two weeks.

Charlotte told us: “Our relationship is kind of slipping away as we’ve been unable to form any new memories together so all we really talk about is the past. When Alex was first convicted, I was very depressed, was afraid to go out and used to have panic attacks in public. In a way, however, feeling that down made me feel close to him as he was all I would ever think about. When I started studying at university and working and feeling better, I felt guilty – as if my happiness was disloyal. Feeling happy sometimes feels like I’m moving further away from him and I can’t let that happen. We were the closest brother and sister.”

In prison, Alex’s wing comprises 40% joint enterprise murder convicts, many of whom are also appealing their sentences.

Autism

Charlotte tells us that the routine Alex has got into in prison has helped him cope with his Autism. But while he looks forward to the prospect of appealing his sentence, he is frightened of his freedom. Charlotte said: “In prison everything is scheduled for you; when you can leave the room, when you get up, when you sleep. When he gets out Alex won’t really have a routine to begin with. To cope with the thought of this, he writes lists of what he’ll do when he gets out – open a bank account, sign up for driving lessons, buy clothes. It helps him to schedule every hour.”

But while his family and legal team work tirelessly to prepare his case for appeal, Alex continues to adjust to his environment.

For those interested in the changing landscape of Joint Enterprise law, the BBC documentary, ‘Guilty by Association’, features Alex Henry’s case and can be viewed here.

The criminal defence department at Blaser Mills deals with all general and serious crime and has experience defending clients charged with murder. If you or a member of your family would like any advice on a criminal matter, please contact a member of our team.