Saturday, 12 July 2014

Private Eye: A sad case of blind injustice Joint enterprise, Issue 1370

A sad case of blind injustice
Joint enterprise, Issue 1370
jordan cunliffe.jpg
WHAT JORDAN COULD SEE: Normal vision, left: and, according to expert evidence from Moorfield’s Eye Hospital, Jordan’s 1/60 vision
JIMMY MCGOVERN’s latest TV drama, Common, shows how short-cut policing can result in large gangs of youths being charged together for a crime under the law of “joint enterprise”. This enables one person to be found guilty over another person’s action, provided they are believed to have acted together for a common purpose and the outcome of that purpose – a violent attack, say – is judged reasonably foreseeable.
One of the real life events which inspired McGovern’s drama concerns the horrific murder of Garry Newlove, who died after an altercation with youths outside his house in Warrington. The pathology report said death was most likely caused by a single forceful kick to the neck. A pathologist told the court that “but for neck injury… from a single forceful kick… Garry Newlove would have walked home”.
Degenerative eye disease
Five youths were charged under the law of joint enterprise, meaning the police did not need to establish who dealt the fatal blow. Three were found guilty. One of the convicted “murderers”, Jordan Cunliffe, aged 15 at the time, had a degenerative eye disease called keratoconus which was so bad that a consultant ophthalmic surgeon told the court he could have been registered blind.
The judge told the jury they could find Jordan guilty if he was at the scene and knew that Mr Newlove might suffer serious injury. Jordan told the court that on the night of the killing he had been drinking and was behind the rest of the group, and wearing no shoes.
After two weeks’ deliberation, it is impossible to know what led the jury to convict blind Jordan for Mr Newlove’s murder, along with two others, Stephen Sorton and Adam Swellings, against whom there was stronger evidence, including DNA. There was no DNA evidence on Jordan’s clothes to link him to the murder, and his brother confirmed to the court that Jordan had been drunk and behind the group, so knew nothing about what happened because he couldn’t see.
Corneal transplant
Sorton, then 19, admitted in court to punching Mr Newlove once; he told his mother at the police station that he had kicked Mr Newlove. At trial, Sorton said that blind Jordan had kicked Mr Newlove.
Sorton and Swelling were sentenced to 18 and 19 years on the basis of eye witness evidence. Jordan was eventually given a 12-year sentence after being found guilty of joint enterprise murder.
Jordan’s vision deteriorated further in prison and he has since had a corneal transplant. New expert evidence from Moorfields Eye Hospital shows in picture form what Jordan could see at the time of the attack: his keratoconus meant he had vision of just 1/60.
Jordan’s mother, Jan Cunliffe, is campaigning against the law of joint enterprise which allows police to round up a gang of youths and charge them all together. After being refused leave to appeal, Jordan is now being represented by the legal team which took up the Hillsborough campaign.

The Law of 'Joint Enterprise': Professor Graham Virgo

Published on 11 Jul 2014

Professor Graham Virgo is Professor of English Private Law at the Faculty of Law, University of Cambridge, and also Deputy Chair of the Faculty Board.

In this video, Professor Virgo considers the current position of the law relating to defendants who are prosecuted in cases of 'common purpose'. Several different circumstances are often combined to form the confused category of 'Joint Enterprise'. Professor Virgo outlines these different circumstances, criticises the current state of the law in this field, and seeks to provide some possible reforms to clarify the situation.

In April 2014, the Bureau of Investigative Journalism published the results of the first statistical analysis of 'Joint Enterprise' homicide cases. Both Professor Virgo and Dr Matthew Dyson (also of the University of Cambridge) were consulted by the BIJ as part of the investigation (see

A BBC documentary broadcast on 7 July 2014 examined this area of law and specifically the case of Alex Henry, who was found guilty of stabbing Taqui Khezihi, despite him claiming to have never touched the knife. (See

The BBC also broadcast a drama based on 'joint enterprise' law on 6 July 2014 entitled 'Common'. (See

Notes and structure:

1. There is no law of 'joint enterprise': no statute, no doctrine, just a tag which hides much confusion as to the state of the law.

2. Three senses of 'joint enterprise':
(a) Two principal offenders with a common purpose
(b) General accessorial liability
(i) Procures, assists or encourages the principal to commit a crime.
(ii) Intention to do the act of assisting or encouraging.
(iii) Knowing, believing or foreseeing that the principal will/might commit the crime.
(iv) Not liable where an unequivocal withdrawal.
(c) Departure from a joint enterprise ('parasitical accessorial liability')
(i) A common purpose to commit one crime (A). This purpose may be express or tacit.
(ii) The principal departs from the common purpose to commit crime B.
(iii) The accessory foresees that the principal might commit crime B as a possibility.
(iv) Not liable where crime B is fundamentally different from that contemplated.

3. The prevalence of 'joint enterprise'. The Bureau of Investigative Journalism (April 2014) identified 1,853 people convicted of homicide between 2005-2013 where there were four or more participants. These are assumed to involve joint enterprise cases.

4. What has gone wrong with 'the law on joint enterprise'?
(a) The language of 'joint enterprise'. Accessorial liability is preferable.
(b) Prosecution policy. CPS Guidance on Joint Enterprise Charging Decisions (2012).
(c) The state of the law: foresight suffices, but foresight of what?
(d) Judicial directions of the jury and the dangers of inference.
(e) Complex trials involving a significant number of defendants.
(f) Sentencing, especially for murder.

5. Reform

Tuesday, 1 July 2014

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